Citation Nr: 1734167 Decision Date: 08/21/17 Archive Date: 08/30/17 DOCKET NO. 16-22 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an anxiety disorder (other than PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include an anxiety disorder and depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Army from May 1964 to May 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Board notes there is no rating decision that denied service connection for depression prior to the September 2014 rating decision the Veteran appealed herein. Therefore, the Board has more properly characterized the depression claim as involving an original claim of entitlement, rather than an application to reopen a previously denied claim. With regard to the Veteran's application to reopen his claim for service connection for an anxiety disorder (other than PTSD), regardless of the decision of the RO as to whether to reopen a previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Board also notes by way of background that the September 2014 rating decision also denied an application to reopen a previously denied claim for service connection for PTSD. The Veteran did not file a notice of disagreement with respect to the PTSD claim. Rather, the notice of disagreement only shows the Veteran disagreed with the denial of reopening of the claim for service connection for anxiety and depression. See Notice of disagreement, December 2014. Therefore, the RO denial of the application to reopen the PTSD claim has become final, and is not on appeal before the Board. However, subsequently, in a May 2016 substantive appeal of the denial of service connection for anxiety and depression, the Veteran indicated that he may wish to file an application to reopen the claim for service connection for PTSD. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. The Veteran is advised that if he wishes to open a claim, he do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include an anxiety disorder and depression, is addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A May 1974 rating decision denied the Veteran's application to reopen a previously denied claim for service connection for a nervous condition and anxiety; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the May 1974 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of service connection for an anxiety disorder (other than PTSD). CONCLUSIONS OF LAW 1. The May 1974 rating decision that denied an application to reopen a claim for service connection for anxiety and a nervous condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). 2. New and material evidence has been received sufficient to reopen the Veteran's claim for service connection for an anxiety disorder (other than PTSD). 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's application to reopen the claim for service connection for an anxiety disorder (other than PTSD) is granted herein and remanded further development. Therefore, any deficiencies regarding the duties to notify and assist are nonprejudicial with regard to the claim. II. Analysis The primary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim for service connection for an anxiety disorder (other than PTSD). For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened. If a notice of disagreement or new and material evidence is not filed within one year of the date of mailing of a decision by the AOJ, the decision generally becomes final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). Similarly, if a substantive appeal is not perfected within 60 days of the issuance of a statement of the case, or within one year of the determination by the AOJ, which date is later, the decision generally becomes final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). After the decision becomes final, the claim may be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2014). New evidence means 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2016). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). An unappealed June 1968 rating decision denied the Veteran's claim for service connection for a nervous condition. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the rating decision. Therefore, the June 1968 rating decision became final. See 38 U.S.C. § 4005 (1968); 38 C.F.R. § 19.129 (1968). In February 1973, the Veteran filed an application to reopen the claim for service connection for a nervous condition. A June 1973 rating decision denied service connection for a nervous condition on the merits, citing a lack of evidence of a current nervous condition. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the June 1973 rating decision, and the rating decision became final. See 38 U.S.C. § 4005 (1973); 38 C.F.R. § 19.129 (1973). In October 1973, the Veteran filed another request to reopen the claim. A May 1974 rating decision denied service connection for a nervous condition and anxiety on the merits based on a lack of evidence of a nexus to service. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the May 1974 rating decision, and the rating decision became final. See 38 U.S.C. § 4005 (1974); 38 C.F.R. § 19.129 (1974). In June 2014, the Veteran filed a request to reopen the claim for service connection for anxiety. A September 2014 rating decision denied the application to reopen the claim. The Veteran filed a December 2014 notice of disagreement, an April 2016 SOC was issued, and the Veteran filed a May 2016 appeal. As noted in the introduction above, regardless of a decision of the RO to reopen a previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial in May 1974, the evidence of record included the Veteran's service treatment records, which show that in March 1967, he reported experiencing episodes for nine months of lightheadedness, hyperventilation, a rapid heartbeat, etc., and he was diagnosed with a psychophysiological reaction secondary to chronic and recurrent anxiety, manifested by hyperventilation, "globus" hysterius, and subjective phenomena; he was referred to psychiatry. See STRs at p.18 of 124; p.2 of 35. An April 1967 psychiatry record noted the Veteran reported he worried about himself when seeing other patients suffering and dying, that he occasionally worried about dying himself, and occasionally experienced anxiety, albeit the psychiatrist ultimately recorded a diagnosis of mixed personality disorder with hypochondrial features. See STRs at p.18 of 124. An April 1967 narrative summary regarding the Veteran's in-service hospitalization and treatment for tuberculosis and pleurisy at the Valley Forge hospital notes "his hospital course was complicated by frequent episodes of anxiety symptoms." See STRs at p.9 of 124. Also of record was a post-service October 1967 VA treatment record showing he received supportive psychotherapy and was prescribed Valium, a September 1968 record showing he reported feeling nervous, and a November 1973 record showing a diagnosed "anxiety reaction." Also of record was an April 1974 VA examination report that shows diagnosed psychoneurosis, anxiety reaction, moderate with recurrent depression. Since the last final denial, new evidence associated with the claims file includes an August 2004 VA examination report that notes the Veteran's history of emergency room treatment for elevated pulse, dizziness, and feeling like he might die, and the VA examiner diagnosed, among other things, a panic disorder without agoraphobia. Also new is a March 2017 VA mental health note that shows that his symptoms at the time of the encounter met the criteria for generalized anxiety disorder, the clinician noted that the Veteran had "suffered through significant anxiety throughout most of his life," and the Veteran reported anxiety about his own death after some friends passed away. He also reported improvement in his mental reaction to apparently physical or physiological symptoms of anxiety. As shown above, the new evidence of record shows a VA clinician noted in March 2017 that the Veteran had anxiety most of his life, that he reported anxiety about his own death after some friends passed away, and a generalized anxiety disorder was diagnosed. The Board is cognizant that during his service, he reported anxiety regarding other patients at the hospital suffering and dying, that he worried about dying himself, and chronic and recurrent anxiety was initially diagnosed. Therefore, the Board finds that the new evidence received since the last final denial is not only "new" but also "material," and the claim is reopened. Before a decision may be made on the claim, however, the Board finds that further development is required, as explained in the remand section below. ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for an anxiety disorder (other than PTSD) has been received, and the claim is reopened. REMAND The Veteran served on active duty in the Army from May 1964 to May 1967, including service in Korea from December 1964 to December 1965. See STRs at p.4 of 124 (DA Form 20). His military occupational specialty was saxophonist. He claims that he has an acquired psychiatric disorder (other than PTSD), to include anxiety and depression, that is related to his active service. As an initial matter, the Board acknowledges that the Veteran has alleged in statements to VA, as well as his reports to VA clinicians, that during his active service, he performed patrol duties on the DMZ in Korea, and that on one occasion, he was not tapped on the shoulder to leave but instead was abandoned and he feared for his life, albeit his alleged stressor was not able to be verified by the RO. See, e.g., Form 21-0781, May 2012; VA Memo, June 2014. The Board also acknowledges that he has alleged incurring shrapnel wounds to his shoulder in service when a helicopter exploded in Vietnam, but his service records do not show any service in Vietnam, and the service treatment records show he incurred a right shoulder dislocation injury in service, not a shrapnel wound. See Statement, January 2013; compare to STRs at p.102 of 167. Therefore, the Board finds the latter incident reported by him to be not credible. The Veteran's May 1964 induction report of medical history shows he checked the box indicating that he experienced depression or excessive worry prior to service. See STRs at p.14 of 124. No psychiatric disorder, however, was noted on entry. Therefore, the presumption of soundness is for application. See 38 U.S.C.A. § 1111 (West 2014). As previously noted, the Veteran's service treatment records show that in March 1967, he reported experiencing episodes for nine months of lightheadedness, hyperventilation, a rapid heartbeat, etc., and he was diagnosed with a psychophysiological reaction secondary to chronic and recurrent anxiety, manifested by hyperventilation, "globus" hysterius, and subjective phenomena; he was referred to psychiatry. See STRs at p.18 of 124; p.2 of 35. An April 1967 narrative summary regarding the Veteran's in-service hospitalization and treatment for tuberculosis and pleurisy at the Valley Forge hospital notes "his hospital course was complicated by frequent episodes of anxiety symptoms." See STRs at p.9 of 124. An April 1967 psychiatry record noted the Veteran reported he worried about himself when seeing other patients suffering and dying, that he occasionally worried about dying himself, and that he occasionally experienced anxiety, albeit the psychiatrist ultimately recorded a diagnosis of mixed personality disorder with hypochondrial features. See STRs at p.18 of 124. Post-service, an October 1967 VA treatment record shows the Veteran received supportive psychotherapy and was prescribed Valium. A September 1968 VA treatment record shows he reported feeling nervous, and a November 1973 VA treatment record shows a diagnosed "anxiety reaction." An April 1974 VA examination report that shows diagnosed psychoneurosis, anxiety reaction, moderate with recurrent depression. An August 2004 VA examination report shows the examiner noted a history of emergency room treatment for elevated pulse, dizziness, and feeling like he might die, and the VA examiner diagnosed, among other things, major depression and a panic disorder without agoraphobia. No etiological opinion, however, was provided. Most recently, a March 2017 VA mental health note shows the clinician noted that the Veteran had "suffered through significant anxiety throughout most of his life," the Veteran reported recent anxiety about his own death after some friends passed away, and a generalized anxiety disorder was diagnosed. As shown above, the Veteran was diagnosed with chronic and recurrent anxiety in service, and he is presently being followed for a diagnosed generalized anxiety disorder by VA. Therefore, the Board finds this matter should be remanded to obtain a new VA examination to address whether the Veteran has an anxiety disorder that had its onset in service or is otherwise related to his active service. The examiner should also address whether his diagnosed depression in the VA treatment records is related to his active service, and address the etiology of his diagnosed bipolar disorder. See VA treatment records, March 2017. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). Expedited handling is requested.) 1. Afford the Veteran a VA psychiatric examination to address the nature and etiology of his claimed acquired psychiatric disorder, including any depression and anxiety. The complete claims folder must be provided to the examiner for review in conjunction with the examination, including a copy of this remand, and the examiner must note that the claims folder has been reviewed. The examiner should opine as to whether it is "at least as likely as not" that any acquired psychiatric disorder, including his diagnosed anxiety and depression, had its onset in service or is otherwise related to his active service. Please ask the VA examiner to closely review the service treatment records discussed in this remand. Also, please ask the VA examiner to address the nature and etiology of the diagnosed bipolar disorder. Any opinion must be accompanied by a complete rationale. 2. Then, readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs