Citation Nr: 1806540 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-07 338A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Whether new and material evidence exists to reopen the claim for residuals of a head injury, also claimed as traumatic brain injury (TBI). 2. Whether new and material evidence exists to reopen the claim for an acquired psychiatric disorder. 3. Entitlement to service connection for an acquired psychiatric disorder to include bipolar disorder and claimed PTSD. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. M. Georgiev, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to November 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2013 rating decision of the Oakland, California, Regional Office (RO) of the Department of Veterans Affairs (VA). An April 1981 Board decision denied service connection for a nervous disorder to include as due to head injury. This decision addressed both service connection for psychiatric disorder ("nervous disorder" and schizophrenia) and head injury. While the Veteran later claimed PTSD in September 2012, the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, symptoms, and the other recorded information. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's later claim for PTSD encompasses the same symptoms as the previously adjudicated "nervous disorder." As such, the Board broadens the claim on appeal from PTSD to acquired psychiatric disorder and finds both the claims for an acquired psychiatric disorder and head injury to include TBI were previously adjudicated by the April 1981 Board decision, as further addressed below. The issue of service connection for an acquired psychiatric disability 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 an April 1981 decision, the Board denied service connection for a nervous disorder to include as residuals of a head injury. The decision included analysis which fully addressed service connection for a psychiatric disorder and head injury. The Veteran was notified of that decision and his appeal rights. He did not appeal the decision. 2. Evidence associated with the claims file since the April 1981 Board denial, when considered by itself or in connection with evidence previously assembled is cumulative as to the service connection claim for head injury claim only. 3. Evidence associated with the claims file since the April 1981 Board denial, when considered by itself or in connection with evidence previously assembled is not cumulative as to the service connection claim for acquired psychiatric disorder only. CONCLUSIONS OF LAW 1. The April 1981 Board decision denying service connection for a nervous disorder to include as residuals of a head injury is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. §§ 3.104(a), 20.302(b), 20.1103 (2017). 2. Evidence received since the April 1981 Board decision is not new and material as to the claim for service connection for residuals of a head injury, and it is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Evidence received since the April 1981 Board decision is new and material and the claim for service connection for a nervous disorder (broadened to acquired psychiatric disorder) is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In an application to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claims for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. In this case, the RO sent the Veteran a letter in November 2012 that complies with statutory notice requirements. Therein, the RO notified the Veteran of the evidence VA was responsible for obtaining and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. Also, the RO notified the Veteran of the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claimed residuals of a head injury were previously denied. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). For a claim to reopen a finally adjudicated claim, VA will provide a medical examination or obtain an opinion only if new and material evidence is presented or secured; in this case, as to residuals of a head injury, there was no new and material evidence found. Id. For these reasons, the Board concludes that there is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished with respect to the claim to reopen service connection for a head injury and residuals, and therefore appellate review may proceed without prejudice to the Veteran. New and Material Evidence Relevant Law Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. The exception to this rule is described under 38 U.S.C. § 5108, which provides that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. 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. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (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, 117 (2010). Head Injury In this case, new and material evidence has not been submitted since the April 1981 Board decision denying the claim for service connection for residuals of a head injury. The April 1981 decision addressed the claimed residuals of a head injury to include nervous disorder, violent behavior and headaches. The decision noted that although the STRs showed laceration of the scalp, the separation examination had no mention of any residuals of a head injury. There was insufficient evidence found to support linking any residuals of the claimed head injury with service. The Veteran has not submitted any new evidence besides his own lay statements in regard to the claimed head injury. The Veteran's lay statements cannot support the nexus between in-service head injury and residual symptoms. While the Veteran is competent to report that he suffers psychological symptoms, he cannot establish a nexus to service, as he is not shown to have the medical expertise to provide a competent opinion on the question of whether the disability can be attributed to in-service head injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a lay person is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Veteran's recent statements are duplicative of his own lay statements of record, already considered by the April 1981 decision, and do not raise a reasonable possibility of substantiating the claim. For the foregoing reasons, the evidence submitted since the April 1981 Board decision denying service connection for residuals of a head injury is cumulative of the evidence already of record and does not relate to any of the bases for the prior denial. The evidence is therefore not new and material and reopening the claim for service connection for residuals of a head injury is not warranted. Although the threshold to reopen is low, such threshold is not met in this case. See Shade, 24 Vet. App. at 118. The benefit-of-the-doubt doctrine is therefore not for application. Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (the benefit-of-the-doubt doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). Acquired Psychiatric Disorder Here, VA treatment records reflect treatment and diagnosis for mental illness, including treatment and diagnosis of bipolar disorder, which occurred after the April 1981 Board decision and complies with the new and material evidence requirements. Accordingly, this evidence is sufficient to reopen the previously-denied claim for nervous disorder, broadened to service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156(a). ORDER The application to reopen the claim for service connection for residuals of a head injury, also claimed as traumatic brain injury (TBI), is denied. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. The appeal is granted to that extent only. REMAND The Veteran has submitted statements indicating that he suffers from mental illness as due to service. VA treatment records from February 1999 to May 2013 reflect primary diagnosis of bipolar disorder, with suggestion of affective disorder and anxiety. Prior documents as well indicate mental disorder. Lay statements from the 1980s indicate that the Veteran exhibited a personality change and was observed exhibiting psychiatric symptoms upon release from service. An October 1975 letter reflects that the Veteran had been accused of waving a shotgun in an alarming manner in public, experienced outbursts, and threatened suicide. A June 1979 private medical report states that the Veteran has a history of paranoid schizophrenia. In light of this medical evidence, and the Veteran's lay statements attributing his mental condition to service, the Board finds a VA examination is required on remand to address the potential relationship between the Veterans psychiatric condition(s) and his period of service. The claims file also indicates that the Veteran may receive disability conpmesation through the Social Security Administration (SSA). On remand, any relevant outstanding documents from SSA should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain any SSA records related to the Veteran's claimed psychiatric disability, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records. A copy of any records obtained from SSA, to include a negative reply, should be included in the claims file. All records received must be added to the claims file. 2. Obtain all outstanding VA treatment records related to the Veteran's claimed psychiatric disability and associate them with the claims file. 3. Request that the Veteran provide authorization to obtain any private records related to his claimed psychiatric disability. All records/responses received must be associated with the claims file. 4. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disorder, to include bipolar disorder and claimed PTSD. The examiner should identify all acquired psychiatric disabilities present. For each identified psychiatric disability, the examiner should determine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder, to include bipolar disorder, was incurred in, permanently aggravated by or otherwise etiologically related to the Veteran's active service. If PTSD is diagnosed, the examiner should identify the specific stressors that led to the condition. The examiner(s) must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjuicate the claim. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. 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. §§ 5109B, 7112 (2012). ______________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs