Citation Nr: 1709986 Decision Date: 03/30/17 Archive Date: 04/11/17 DOCKET NO. 13-00 003A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder, to include emotional instability reaction, claimed as depression. 2. Entitlement to a compensable rating for service-connected otitis media disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1966 in the United States Army. The Veteran also served on active duty from January 1967 to January 1968 in the United States Air Force. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's request to reopen the claim for emotional instability reaction, claimed as depression and continued the noncompensable rating for his service-connected otitis media. Regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate each claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board must therefore first decide whether new and material evidence to reopen the claim has been received. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified only a single diagnosed disorder, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for emotional instability reaction, the Board notes that the record contains a statement from the Veteran claiming he has trouble sleeping, depression, and that he is currently on medication as a result. The Board thus finds that, pursuant to Clemons, the Veteran's service connection claim is more accurately classified as one for any acquired psychiatric disorder. See Clemons, 23 Vet. App. 1. This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. A review of the Virtual VA file does not reveal any additional documents pertinent to the present appeal. The issue of tinnitus has been raised by the record in an October 2016 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The Board's decision with respect to the application to reopen the claim for service connection for a psychiatric disorder, to include emotional instability reaction, claimed as depression, is set forth below. The reopened claim for service connection for psychiatric disorder, on the merits, is addressed in the REMAND following the order. The issue of entitlement to a compensable rating for service-connected otitis media is also addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. In an October 1969 rating decision, the RO denied service connection for emotional instability. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. Evidence received since the October 1969 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises the reasonable possibility of substantiating the Veteran's claim for service connection for emotional instability, claimed as depression. CONCLUSIONS OF LAW 1. The October 1969 rating decision that denied the claim of entitlement to service connection for emotional instability, claimed as depression, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). 2. Evidence received since the October 1969 rating decision is new and material, and the criteria for reopening the claim for entitlement to service connection for emotional instability, claimed as depression, have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition of the Veteran's request to reopen the claim for service connection for a psychiatric disorder to include emotional instability reaction, claimed as depression, the Board finds that all notification and development actions needed to fairly adjudicate the matter have been accomplished. II. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The Veteran's claim of service connection for emotional instability reaction was previously denied in an October 1969 rating decision. The pertinent evidence then of record consisted of service treatment records (STRs). The RO noted that a neuropsychological examination indicated a diagnosis of emotional instability reaction that was chronic; however, the RO indicated that a nervous condition was a constitutional or developmental abnormality and not a disability under the law. Although notified of the October 1969 denial, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the October 1969 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the final October 1969 denial includes the Veteran's testimony of an in-service event to corroborate his claim for depression, his statements that he was hospitalized for a nervous breakdown in 1965 and that there are mental health records of the event, and his testimony that he was receiving mental health treatment, including medication from a VA medical facility in Sebring, Florida. The Board finds that the above-described evidence provides bases for reopening the claim for service connection for a psychiatric disorder. Specifically, the testimony that arose from the October 2016 hearing concerning the Veteran's in-service event and possible additional medical records are "new" in that they were not before agency decision makers at the time of the October 1969 final denial of the claim for service connection, and are not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it goes to the question of whether the Veteran had an in-service injury or event caused or aggravated by his military service and whether the Veteran has a qualifying current disability. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for emotional instability reaction, also claimed as depression, are met. ORDER The application to reopen the claim of entitlement to service connection for a psychiatric order, to include emotional instability claimed as depression, is granted. REMAND The Board finds that further development is needed regarding the issues of service connection for a psychiatric disorder to include emotional instability reaction claimed as depression, and an increased rating for service-connected otitis media of the left ear. In November 2010, the Veteran filed a Notice of Disagreement where he stated that he experienced symptoms of depression. He reported that he was currently on medication for depression and was receiving treatment at Sebring VAMC; however, it does not appear that these records have been requested or associated with the claims file. The Board also notes that the RO reviewed records from Bay Pines VAMC for determination, but those records have not been associated with the claims file. In the October 2016 hearing, the Veteran testified that he lived in Chicago, Illinois and Colorado where he saw different medical providers. In addition, the Veteran also testified that he had a nervous breakdown in September 1965 and was hospitalized for two days; however, mental health STRs have not been requested or associated with the claims file. VA has a duty to assist the Veteran with his claim by obtaining all potentially relevant records prior to making a decision on the claim. Here, to satisfy this obligation, the September 1965 mental health records, and post-service VA treatment records, as well as any identified private treatment records, should be obtained and associated with the claims file. Further, in the June 1969 neuropsychological examination, the Veteran reported that he experienced headaches, upset stomachs, irritability and excitability, and excessive perspiration of the body at times. The Veteran was subsequently diagnosed as having emotional instability disorder, associated with symptoms of anxiety. In October 2016, the Veteran testified that he witnessed a motor vehicle accident while stationed in Thailand and that he reported this event to a doctor at a mental health clinic in September 1965. In addition, the Veteran testified about a later in-service incident at a dentist office that caused him to have a nervous breakdown and be hospitalized for two days. The Veteran also testified that he was currently experiencing symptoms, such as problems sleeping, related to his diagnosis. The Veteran has not undergone a VA examination to address the etiology of his emotional instability reaction diagnosis or any other psychiatric disorder. Specifically, the Veteran testified that he received a diagnosis while in service and that he was currently taking medication for a psychiatric disorder prescribed from Sebring VAMC. As such, a VA examination is required to determine whether the Veteran has a current psychiatric disability, to include emotional instability reaction claimed as depression, that is due to or a result of his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the Veteran's claim for an increased evaluation for service-connected otitis media, the Board finds that a VA examination is required to determine the appropriate diagnosis that coincides with the Veteran's symptoms. STRs are consistent with the Veteran's complaints of recurrent ear pain, hearing loss, tinnitus, and general discomfort around noisy areas. In August 2010, the Veteran received a diagnosis of left otitis externa without evidence of otitis media in both ears. In October 2016, the Veteran testified that he has consistent and frequent "tremendous" pain in his left ear. He further explained that occasionally the flare-ups become so severe that there is no remedy for his pain. In addition, the Veteran testified that he received a biopsy at the Ft. Myers VA medical facility, during which a needle was inserted behind his left ear. He stated that he has experienced severe pain ever since. It was suggested by the representative at the hearing that there has been neurological element to the Veteran's service-connected ear disability that has never been evaluated. Thus, the Board finds that a VA neurological examination is necessary to provide a clearer diagnostic picture of the Veteran's service-connected disability and to determine what affect, if any, the biopsy procedure could have had in regard to the Veteran's left ear pain. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder all of the Veterans VA medical records, including from Sebring, Bay Pines, and Ft. Myers, Florida. 2. Request the Veteran's service mental health records, specifically from around September 1965, and/or any other mental health records that were kept separate from the STRs. 3. After all records have been associated with the electronic claims file, schedule the Veteran for a VA examination in order to determine the etiology of his psychiatric disorder. The claims folder must be made available to the examiner. All tests deemed necessary should be conducted. The examiner should provide an opinion as to whether any psychiatric disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's military service. The examiner should specifically address the Veteran's statements of the in-service event; and that during service he experienced headaches, upset stomachs, irritability and excitability, loss of sleep, and excessive perspiration of the body at times. The examiner should additionally address the June 1969 diagnosis of emotional instability reaction. All opinions must be accompanied by a rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a medical explanation as to why this is so must be provided. 4. Schedule the Veteran for a neurological VA examination in order to determine the current severity of the Veteran's ear disorder-to include whether the Veteran has a neurological disorder associated with his service-connected left ear disability. The claims folder must be made available to the examiner. All tests deemed necessary should be conducted. The examiner should describe any current left otitis media and provide an opinion as to whether any neurological disorder at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's military service. The examiner should also indicate whether any neurological disorder at least as likely as not is related to or aggravated by the Veteran's service-connected left ear otitis media. The examiner should specifically address the Veteran's statements that he experienced recurrent pain in his left ear after a biopsy procedure. The examiner should additionally address the August 2010 VA examination where otitis media in his left ear was diagnosed. All opinions must be accompanied by a rationale. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a medical explanation as to why this is so must be provided. 6. After completing the requested actions, and any additional indicated development, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The appellant 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 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). ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs