Citation Nr: 1633247	
Decision Date: 08/22/16    Archive Date: 08/26/16

DOCKET NO.  10-32 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Whether new and material evidence was received to reopen a claim for entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disability, other than PTSD.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from November 1977 to March 1979. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Roanoke, Virginia. 

In August 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of that hearing is of record.

This appeal has been processed entirely electronically using the Veterans Benefits Management System (VBMS) and Virtual VA.

The issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In a final decision issued in March 2005, the RO denied the Veteran's claim of entitlement to service connection for generalized anxiety disorder, depressive disorder, simple phobia and immature personality disorder.

2.  Evidence received since the March 2005 rating decision is new and material; the evidence relates to unestablished facts necessary to substantiate the Veteran's claim. 

CONCLUSION OF LAW

New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, other than PTSD.  	 	 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a right shoulder disability is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations regarding this issue.  However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA.

By way of background, a March 2005 rating decision initially denied service connection for generalized anxiety disorder, depressive disorder and simple phobia.  The rating decision also denied service connection for immature personality disorder.  At such time, the RO considered the Veteran's service treatment records, available post-service treatment records and a November 2004 VA examination report.  The RO determined that service connection was not warranted for generalized anxiety disorder, depressive disorder or simple phobia as the evidence did not show that the disabilities occurred in or were caused by service.  Regarding immature personality disorder, the RO determined that service connection was not warranted as immature personality is not a disabling condition.  The Veteran did not file a timely notice of disagreement disagreeing with the March 2005 determination.

Thereafter, the Veteran filed a claim for service connection for PTSD in August 2009.  In June 2012, the Board remanded the claim for PTSD to obtain outstanding treatment records and Social Security Administration (SSA) records.  In September 2014, the Board denied this PTSD claim; however, upon review of the record, the Board found that the issue of entitlement to an acquired psychiatric disability, other than PTSD had been raised.  The Board remanded the claim for entitlement to service connection for an acquired psychiatric disability, other than PTSD for additional development as the AOJ had not adjudicated this claim.  

In January 2015, the RO issued a supplemental statement of the case (SSOC) in which it denied the claim for service connection for an acquired psychiatric disability as the Veteran did not have a currently diagnosed mental disability. 

At the time of the March 2005 rating decision, service treatment and personnel records, the November 2004 VA examination and post-service treatment records through 2004 were on file. 

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  38 C.F.R. § 3.156(a).  Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118. 

New and material evidence received prior to the expiration of the appeal period, or prior to the appellant decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R.	  § 20.1304(b)(1) ), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. 	 	 § 3.156(b).

If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 	 38 C.F.R. § 3.156(c).  Here, all service-related records were obtained and considered in original rating decisions for service connection.  Accordingly, 	 38 C.F.R. § 3.156(c) is inapplicable. 

If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  The evidence is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 	 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992).

All new and material evidence claims on appeal are service connection claims. Generally, for a successful claim, the record must have competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (or nexus) between the current disability and the disease or injury incurred or aggravated during service.  38 U.S.C.A. §§ 1110 , 1131; 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The evidence received since the time of the March 2005 rating decision includes more recent VA treatment records, a more recent VA examination, SSA records, and statements by the Veteran, including the testimony of the Veteran at the August 2011 Travel Board hearing.  The Board finds that the evidence received since the March 2005 rating decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim.

In this regard, the RO previously denied the Veteran's claim for generalized anxiety disorder, depressive disorder and simple phobia on the basis that there is no evidence of diagnosis or treatment of these psychiatric disorders in service.  However, the evidence received since the March 2005 rating decision includes medical records showing that clinicians have subsequently discussed whether the Veteran's developed psychiatric disability, to include phobia, was due to in-service exposure to insects while in Panama.

For the purposes of reopening claims, the credibility of the evidence is presumed.  See Justus, supra.  The newly received evidence suggests a possible nexus between the Veteran's diagnosed psychiatric disability and his in-service exposure to insects while in Panama.  On this basis, and consistent with the holding in Shade, the Board finds that new and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disability, other than PTSD.


ORDER

As new and material evidence has been received, the application to reopen a claim of entitlement to service connection for an acquired psychiatric disability, other than PTSD is granted.


REMAND

The Veteran contends that his acquired psychiatric disability is related to his active duty, specifically, his in-service exposure to insects while in Panama.  Medical treatment records reveal various diagnoses of generalized anxiety, depressive disorder, and phobia.  

Post service treatment records show treatment for anxiety, depressive disorder and phobia.  The records also show clinicians discussed whether the Veteran's phobia was due to his in-service exposure to insects while in Panama.  As such, remand is required to determine the etiology of the Veteran's acquired psychiatric disability, other than PTSD.  

The Board notes that the November 2014 VA examiner did not provide an opinion as to the etiology of the Veteran's acquired psychiatric disability, other than PTSD because he reported that the Veteran did not have a current diagnosis of any psychiatric disability at the time of the examination.  However, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007).  The November 2004 VA examiner diagnosed the Veteran with simple phobia, generalized anxiety disorder and depressive disorder not otherwise specified.  Such evidence suggests that the Veteran may have had an acquired psychiatric disorder at some point during the pendency of this appeal.  Therefore, a medical opinion is still required in this case.

In light of the remand, relevant ongoing VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain updated VA treatment records.

2.  Upon completion of directive #1, afford the Veteran an appropriate VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his acquired psychiatric disorder(s).  The electronic claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner.  Any indicated evaluations, studies, and tests should be conducted and the examiner should identify all of the Veteran's acquired psychiatric disorders.

In identifying all current psychiatric diagnoses, please consider medical and lay testimony dated both prior to and since the filing of the May 2004 claim for service connection.  Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis.

For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be validated or confirmed.

After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the VA examiner should offer an opinion on the following:

Is it at least as likely as not that any currently diagnosed acquired psychiatric disability is related to the Veteran's military service?

3.  After completing the above directives and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, readjudicate the Veteran's claim for entitlement to service connection for an acquired psychiatric disability other than PTSD.  If the claim remains denied, the Veteran and his representative should be issued a SSOC.  An appropriate period of time should be allowed for response.


The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs