Citation Nr: 1627586 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 13-23 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for a psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizophrenia. 3. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance/housebound status. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to September 1971 and from May 1979 to July 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the claims on appeal. The Veteran and his wife testified before the undersigned at a Board videoconference hearing in May 2016. A transcript of the hearing has been reviewed and associated with the claims file. The United States Court of Appeals for Veterans Claims has held that claims for service connection for one psychiatric disorder encompasses claims of service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). Accordingly, the Board has characterized the claim as shown on the title page. The Board notes that in a February 1972 decision, the RO denied entitlement to service connection for a psychiatric disability, claimed as a nervous condition. Subsequently, in a September 1975 rating decision, the RO reopened and denied the claim. In order for VA to review the merits of the claim, the Veteran must submit new and material evidence. The Board is required to address this issue despite the RO's findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). As such, the issue has been captioned as set forth above. The issue of entitlement to service connection for a psychiatric disorder 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 September 1975 rating decision, the RO reopened and denied the claim of service connection for a psychiatric disorder. The Veteran did not file a notice of disagreement and no new and material evidence was received within the appeal period. Therefore, the September 1975 rating decision is final. 2. In a November 1978 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of service connection for a psychiatric disorder. The evidence does not show that the Veteran was informed of the adverse determination and his appellate rights. Thus, the November 1978 rating decision is not final. 3. The evidence received since the September 1975 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran's claims of service connection for a psychiatric disorder. 4. The Veteran has no services-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015). 2. The criteria for SMC based on the need for the regular aid and attendance of another person or at the housebound rate have not been met. 38 U.S.C.A. § 1114 (West 2014); 38 C.F.R. §§ 3.350, 3.352 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The VA's duty to notify was satisfied through a letter dated in March 2010, which fully addressed all notice elements. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records and post-service treatment records have been associated with claims file. The Veteran has not identified any additional records that should be retrieved. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was provided VA examinations for his SMC claim in December 2010 and June 2011. The examinations are adequate for the purposes of the SMC claim adjudicated herein as the opinions were based on review of the claims file, including the Veteran's statements, and provided a rationale for the opinions provided. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. I. New and Material Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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 consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Initially, the Board notes that the Veteran's claim of service connection for a nervous condition was denied in a February 1972 rating decision because the diagnosed condition, passive aggressive personality, was a constitutional or developmental abnormality. Thereafter, the Veteran filed a petition to reopen the claim in June 1975. In a September 1975 rating decision, the RO reopened and denied the claim of service connection of a psychiatric disorder. It was determined that the diagnosed condition, schizophrenia, was first noted after military service (including beyond the presumptive period) and there was no indication that it had any relationship to the personality disorder diagnosed during service. The evidence of record at the time of the September 1975 rating decision consisted of the appellant's service treatment records from July 1971 to September 1971 and medical records demonstrating treatment for and a diagnosis of schizophrenia. The appellant was notified of this decision and of his procedural rights by letter in October 1975. He did not appeal the determination and no new and material evidence was received within a year of its issuance. Thus, the September 1975 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Board notes that in a November 1978 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of service connection for a psychiatric disorder. It was noted that there was no examination, the claimant was represented by a VSO, and the determination was signed off by several rating specialists. The record does not reflect that the Veteran was informed of the adverse decision and/or his appellate rights. Therefore, the November 1978 RO determination is not final. Since the September 1975 rating decision, service treatment records for the period of service from May 1979 to July 1980, additional VA and private treatment records, a report from a July 2011 VA examination, and a transcript of the May 2016 Board hearing have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claim of service connection for a psychiatric disorder. The evidence is new, as it was not part of the record at the time of the September 1975 rating decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim. In this regard, the evidence suggests that the appellant's psychiatric disorder had its onset during service or was worsened by such service. Specifically, service treatment records for the period of service from May 1979 to July 1980 show that the appellant was treated for schizophrenia. However, a psychiatric disability was not noted at entrance into service. In testimony provided at the Board hearing, the Veteran asserted that his diagnosed PTSD existed during service and was masked by diagnosed psychosis, or alternatively, worsened his psychosis. In light of the foregoing, the Board finds that new and material evidence has been received and the claim of service connection for a psychiatric disorder is reopened. The Board finds that further development is needed prior to addressing the merits. This is in the Remand section below. II. SMC When, as a result of service-connected disability, the Veteran is so helpless (due to physical or mental incapacity), that he or she requires the aid of another person to perform the personal functions required in everyday living. 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.351(b), 3.352(a). A Veteran meets the statutory requirements for payment of SMC at the housebound rate when he or she has: (i) a single service-connected disability rated at 100 percent, and (ii) other service-connected disability (or disabilities) separate and distinct from the disability rated as 100 percent, and are rated at a combined disability rating of 60 percent or higher. 38 U.S.C.A. § 1114(s); 38 C.F.R. §§ 3.350(i). A Veteran meets the criteria for payment at the SMC(s) rate when, as a result of a single service-connected disability rated as 100 percent disabling, he or she is permanently and substantially confined to his or her place of residence and immediate premises, or ward or clinical areas, if institutionalized. 38 U.S.C.A. § 1114(s); 38 C.F.R. §§ 3.350(i)(2). After a review of the evidence, the Board finds that entitlement to SMC is not warranted. In this regard, the Veteran has no service-connected disabilities. Accordingly, the threshold element for entitlement to SMC is not met. Thus, the question of whether the Veteran is in fact in need of regular aid and attendance of another person, or housebound, is not reached. In light of the foregoing, entitlement to SMC based on the need for regular aid and attendance of another person or by reason of being housebound must be denied. ORDER New and material evidence having been received, the petition to reopen the claim of service connection for a psychiatric disorder is granted. Entitlement to SMC based on the need for regular aid and attendance of another person or by reason of being housebound is denied. REMAND The Veteran asserts that his psychiatric disorder is related to military service, to include an in-service sexual assault. Alternatively, he asserts that any diagnosed psychiatric condition, which may have pre-existed military service, was exacerbated by such service. A review of the appellant's service treatment records for his period of service from July 1971 to September 1971 is negative for a finding of a psychotic condition. In an August 1971 record, a diagnosis of severe passive aggressive personality was diagnosed, however it was determined that there was no psychotic disorder. In the August 1971 separation examination, psychiatric evaluation was normal, but in the accompanying report of medical history, the appellant noted nerve trouble. Post-service medical records demonstrate extensive treatment for and diagnosis of schizophrenia. The enlistment examination for the Veteran's period of service from May 1979 to July 1980 was negative for a finding of a psychiatric disorder. Subsequent service treatment records show that the Veteran was admitted for psychiatric evaluation. In the December 1979 separation examination, a diagnosis of schizophrenia, chronic undifferentiated type was documented. The Veteran was afforded a VA psychiatric examination in July 2011, at which time PTSD was diagnosed. However, the examiner did not provide an etiological opinion. Thus, the examination is insufficient to determine the appellant's service connection claim. On remand, the Veteran should be provided an additional VA examination and an etiological opinion should be obtained. Lastly, the Board observes that the Veteran is in receipt of Social Security Income (SSI); however records from the Social Security Administration (SSA) have not been associated with the claims file. On remand, efforts to obtain SSA records must be made. Accordingly, the case is REMANDED for the following actions: 1. Obtain a complete copy of all documents and/or evidentiary material pertaining to the Veteran's SSA disability benefits. Any unsuccessful attempt to obtain these should be documented in the file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder, to include PTSD and schizophrenia. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinet medical history and such review should be noted in the examination report. The examiner is asked to identify each psychiatric disorder, including personality disorders, found upon examination and diagnosed throughout the Veteran's medical history. If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based, to include an in-service sexual assault. Thereafter, the examiner should provide opinions for the following: a. Did any current psychiatric disorder, clearly and unmistakably (i.e., is it undebatable) pre-exist active military service for the period of service from July 1971 to September 1971? b. If a psychiatric disorder clearly and unmistakably pre-existed active military service for the period of service from July 1971 to September 1971, is it also clear and unmistakable that such disorder was NOT permanently worsened during service beyond its natural progress? c. Did any current psychiatric disorder, clearly and unmistakably (i.e., is it undebatable) pre-exist active military service for the period of service from May 1979 to July 1980? d. If a psychiatric disorder clearly and unmistakably pre-existed active military service for the period of service from May 1979 to July 1980, is it also clear and unmistakable that such disorder was NOT permanently worsened during service beyond its natural progress? e. For each psychiatric disorder that did not clearly and unmistakably pre-exist active military service, is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its onset during military service or is otherwise etiologically related to active military service? f. For any current personality disorder, did it clearly and unmistakably pre-exist active military service for the period of service from July 1971 to September 1971? g. If a personality disorder clearly and unmistakably pre-existed active military service for the period of service from July 1971 to September 1971, was a psychiatric disorder superimposed on the pre-existing personality disorder during the Veteran's active service? h. For any current personality disorder, did it clearly and unmistakably pre-exist active military service for the period of service from May 1979 to July 1980? i. If a personality disorder clearly and unmistakably pre-existed active military service for the period of service from May 1979 to July 1980, was a psychiatric disorder superimposed on the pre-existing personality disorder during the Veteran's active service? j. If a personality disorder is found but it did not pre-exist a period of active service, is it at least as likely as not that any current psychiatric disorder is related to the in-service manifestations as a superimposed disorder? All opinions provided must be thoroughly explained, and a comprehensive rationale for all conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and provide a supporting explanation as to why an opinion cannot be provided without resort to speculation. The examiner is asked to discuss the diagnosis of progressive personality found during the period of service from July 1971 to September 1971 and the relationship, if any, to any diagnosed psychiatric or personality disorder. 3. If the benefit sought on appeal remains denied, issue a supplemental statement of the case, then return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ P. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs