Citation Nr: 20008456 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 15-26 162 DATE: January 31, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder; to that limited extent, the appeal is granted. New and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches; to that limited extent, the appeal is granted. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of April 1988 VA treatment is denied. Entitlement to nonservice-connected disability pension benefits is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for migraine headaches is remanded. FINDINGS OF FACT 1. An unappealed July 1974 rating decision denied service connection for an acquired psychiatric disorder. 2. An unappealed June 1998 rating decision denied service connection for migraine headaches. 3. The evidence received since the July 1974 rating decision denying service connection for an acquired psychiatric disorder, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The evidence received since the June 1998 rating decision denying service connection for migraine headaches, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. The evidence does not reflect additional disability as the result of training, hospital care, medical or surgical treatment, or an examination by VA. 6. There is insufficient information to determine whether the Veteran meets the income and net worth requirements for entitlement to nonservice-connected disability pension benefits. CONCLUSIONS OF LAW 1. The July 1974 and June 1998 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder and for migraine headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of April 1988 VA treatment have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. 4. The criteria for entitlement to nonservice-connected disability pension benefits have not been met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.23, 3.271, 3.272. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1971 to October 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and March 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In his VA Form 9’s, the Veteran requested a Board hearing. Such hearing was scheduled on March 7, 2019, but in March 5, 2019 correspondence, the Veteran withdrew his request for a hearing. His request for a hearing is therefore considered withdrawn. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder 2. New and material evidence has been received to reopen a claim of entitlement to service connection for migraine headaches Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. “New” evidence means existing evidence not previously submitted to agency decisionmakers. “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 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See 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, 121 (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 one should ask whether the evidence could reasonably substantiate 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. Historically, an unappealed July 1974 rating decision denied the Veteran’s claim of service connection for depressive neurosis, based on findings that such was not found on examination. An unappealed June 1998 rating decision denied the Veteran’s claim of service connection for migraine headaches, based on findings that there was no evidence of chronic disease incurred in or aggravated by service. No additional evidence pertinent to these issues was associated with the claims file within the one-year appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Accordingly, the July 1974 and June 1998 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.1103. The instant claim for service connection for an acquired psychiatric disorder was received in November 2011 and service connection for migraine headaches was received in February 2013. Since the July 1974 rating decision, the Veteran submitted additional evidence, including VA treatment records showing diagnoses of dysthymic disorder and panic disorder without agoraphobia. See January 1998 VA treatment record. Additional evidence submitted also includes a June 2015 VA mental disorders examination report diagnosing dependent personality disorder and unspecified depressive disorder. This evidence is new, in that it was not previously of record at the time of the July 1974 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for an acquired psychiatric disorder. Since the June 1998 rating decision, the Veteran submitted additional evidence, including his statements that he has suffered from migraine headaches since service, as well as VA treatment records showing continuous treatment for headaches. See, e.g. May 2014 VA treatment record. This evidence is new, in that it was not previously of record at the time of the June 1998 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for migraine headaches. 3. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of April 1988 VA treatment. The Veteran asserts that he received improper medical care at a VA hospital in April 1988, and is entitled to compensation under 38 U.S.C. § 1151 related to his treatment. See December 2013 VA Form 21-4138. Under applicable law, when a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.358. To be awarded compensation under § 1151, a veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. For additional disability to be compensable, it must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Loving v. Nicholson, 19 Vet. App. 96 (2005). The additional disability must have been the result of injury flowing directly from the actual provision of care, treatment, or examination furnished by VA. Id. In this case, VA sent the Veteran a letter in January 2014 requesting information regarding his claim, including the evidence needed to substantiate his claim. To date, the Veteran has not provided the requested information. The duty to assist is a two-way street, and the Veteran is responsible to assist VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Based on the evidence of record, as there is no evidence of improper care or the additional disability sought or contended, the Board finds that the claim must be denied. 4. Entitlement to nonservice-connected disability pension benefits. The Veteran seeks entitlement to nonservice-connected disability pension benefits. The claim was initially denied in October 2014 because the Veteran’s income exceeded the maximum annual pension limit. In pertinent part, in a letter dated April 12, 2017, the RO advised the Veteran it needed additional information regarding the family’s income and net worth from May 22, 2014 through December 31, 2014, January 1, 2015 through December 31, 2017, and submit the enclosed Eligibility Verification Report. And in a June 9, 2017 letter, the RO advised the Veteran he was missing necessary information (i.e., household income for 2016 to the present). The RO issued a July 2017 Statement of the Case denying the Veteran’s claim for nonservice-connected disability pension benefits on the basis that the RO was unable to determine the Veteran’s eligibility to nonservice-connected disability pension benefits in the absence of the information requested in the April 2017 and June 2017 letters. Therefore, the RO denied entitlement to nonservice-connected disability pension benefits. Basic entitlement to nonservice-connected disability pension exists if a veteran (1) served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. § 1521(j)); (2) meets the net worth requirements under 38 C.F.R. § 3.274; (3) does not have an annual income in excess of the applicable maximum annual pension rate; (4) and is age 65 or older or is permanently and totally disabled from nonservice-connected disability not due to the veteran’s own willful misconduct. 38 C.F.R. § 3.3(a)(3). Basic entitlement to pension exists if, among other things, the claimant’s income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C. § 1521; 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of the VA Adjudication Procedures Manual M21-1 and is given the same force and effect as if published in VA regulations. 38 C.F.R. § 3.21. The MAPR is revised every December 1st and is applicable for the following 12-month period. The MAPR shall be reduced by the amount of the countable annual income of the claimant. 38 U.S.C. §§ 1503, 1521; 38 C.F.R. §§ 3.3, 3.23(b). In determining annual income, all payments of any kind or from any source (including salary, retirement or annuity payments, one-time lump sum payments or similar income, even if waived) shall be included during the 12-month annualization period in which received, except for income specifically excluded. 38 U.S.C. § 1503(a); 38 C.F.R. §§ 3.271(a), 3.272. Income from the Social Security Administration is not specifically excluded under 38 C.F.R. § 3.272. Therefore, such income is included as countable income. For purposes of calculating pension benefits, total income may be reduced by amounts paid by a claimant for unreimbursed medical expenses that are “in excess of 5 percent of the applicable maximum annual pension rate or rates... as in effect during the 12-month annualization period in which the medical expenses were paid.” 38 C.F.R. § 3.272 (g)(1)(iii). In order to be excluded from income, these medical expenses must be paid during the time period at issue, regardless of when they were incurred. In addition, they must be out-of-pocket expenses, for which the claimant received no reimbursement, such as from an insurance company. However, medical insurance premiums themselves, including Medicare Plan B premiums deducted from Social Security benefits, may be applied to reduce countable income. For the purpose of determining initial entitlement or resuming payments on an award that was previously discontinued, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by twelve. 38 C.F.R. § 3.273(a). In essence, VA subtracts the total amount of countable income in one year from the MAPR for that year; then, if a positive amount remains, the rest is divided by 12 to determine the monthly pension benefit. When a change in the MAPR occurs, VA repeats the calculation with the new MAPR as the starting amount on the effective date of the change, typically December 1st. 38 C.F.R. § 3.273(b)(1). Whenever there is a change in a beneficiary’s countable income, VA will repeat the calculation using the beneficiary’s new countable income effective the date of the change in the amount of income. 38 C.F.R. § 3.273(b)(2). As a condition of granting or continuing pension, the VA may require from any person who is an applicant for or a recipient of pension such information, proofs, and evidence as is necessary to determine the annual income and the value of the corpus of the estate of such person. 38 C.F.R. § 3.277(a). In the present case, the RO requested the Veteran provide income, net worth and unreimbursed medical expense information for specific periods of time relevant to his claim. He failed to provide the requested information. His response is a condition to granting entitlement to nonservice-connected disability pension benefits and his failure to do so has caused a lack of information detrimental to his claim. Unfortunately, based upon the lack of information, the Board finds that there is no evidence upon which to make a determination that the Veteran is eligible for nonservice-connected disability pension benefits. The Board acknowledges that the Veteran provided initial income, net worth and medical expense information with his original claim. However, that information is not considered valid anymore because it only applied at the time when the Veteran filed his claim and would only provide an estimate of income and expenses for the initial annualized period of entitlement. Now the Veteran can provide actual income information that would provide an accurate calculation of his eligibility. Such information was requested on multiple occasions, but not provided. Furthermore, there is no information as to the Veterans income, net worth and medical expenses during the period for 2016 to the present to determine his continued entitlement after the initial annual period. Again, such information was requested but not provided. The Board advises the Veteran that the duty to assist is a two-way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, based on the record before it, the Board must deny the Veteran’s claim for nonservice-connected disability pension benefits as it is unable to determine his eligibility due to the lack of information as to his income, net worth and unreimbursed medical expenses resulting from his failure to respond to the RO’s request for such information. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. In this case, the evidence includes the Veteran’s service treatment records showing his complaints and treatment for depression, and a diagnosis of depressive neurosis in a Medical Board report, indicated to have had its onset prior to entry into service. Notably, his July 1971 entrance examination was negative for abnormal psychiatric findings. Hence, the presumption of soundness is for application. The post-service evidence of record includes a June 2015 VA mental disorders examination diagnosing dependent personality disorder and unspecified depressive disorder. It was opined that it was less likely than not that either condition was related to military service or were exacerbated by military service; no rationale was provided. In an August 2015 VA addendum opinion, it was stated that the Veteran’s personality disorder is the primary condition, and the depression appears to be recurrent and secondary to the personality disorder. It was opined that the depressive episode during military service was not related to the current depressive episode (no rationale provided), and the pre-existing personality disorder was not exacerbated beyond its natural progression by events during military service (no rationale provided). The Veteran submitted multiple lay statements in support of his claim indicating that he was not depressed prior to service and that he was not the same person after service. See March 2018 lay statements. In addition, he has submitted a June 2019 private medical opinion from R.S., Ph.D., opining the Veteran’s depression and anxiety were directly related to service, noting service in Saudi Arabia and Kuwait. Notably, the Veteran’s DD Form 214 lists no foreign service. Hence, the June 2019 private medical opinion appears to be based at least in part on an inaccurate factual premise, and is of limited probative value. Nonetheless, considering the inadequacies of the opinions of record, the Board finds that this matter must be remanded for another examination to determine the nature and etiology of the Veteran’s acquired psychiatric disorder. 2. Entitlement to service connection for migraine headaches is remanded. As discussed above, the Board has reopened the claim for service connection for migraine headaches. However, as the RO has not adjudicated the merits of the service connection claim in the first instance, the Board must remand the claim so that this may be accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, the Board notes that the Veteran’s occupational history includes working for over 20 years as a licensed practical nurse at a VA facility, and he is competent to report on medical matters. See March 2012 VA treatment record. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Then schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The entire claims file should be made available to and reviewed by the examiner. All indicated tests and studies should be performed and all findings reported in detail. Following a review of the claims file, the examiner is asked to address the following: (a) Identify all psychiatric disorders found, to include dependent personality disorder and unspecified depressive disorder. (b) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) evidence that any of the Veteran’s psychiatric disorders existed prior to active service? Please discuss the lay statements submitted by the Veteran in March 2018 in addressing the matter. (c) If the answer to question (b) is yes, is there clear and unmistakable (obvious, manifest, and undebatable) evidence that the pre-existing psychiatric disorder WAS NOT aggravated (permanently worsened) during service? (d) If the answer to question (b) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed psychiatric disorder: (1) Had its onset in service; (2) Was superimposed upon his personality disorder during service; or (3) Is otherwise related to the Veteran’s service? The examiner is advised that the Veteran is competent to report symptoms and that his reports (lay observations) and other lay evidence of record, including the March 2018 supporting lay statements, must be considered in formulating the requested opinions. If the Veteran’s reported history is discounted, the examiner must provide a reason for doing so. The Veteran’s statements may not be discounted solely on the basis of the lack of confirmation in the medical records. A robust rationale is requested. If the examiner is unable to render an opinion without resorting to speculation, supporting rationale for that conclusion should be furnished. 3. Then, after conducting any additional development deemed necessary, including an examination regarding the etiology of the Veteran’s migraine headaches, readjudicate the issues on appeal, including service connection for migraine headaches, on the merits. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.