Citation Nr: 21024003 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-44 493 DATE: April 21, 2021 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. REFERRED The Veteran has asserted that a clear and unmistakable error (CUE) was made in a May 1986 rating decision that denied service connection for a nervous condition. See February 6, 2020 Medical Treatment Record – Non-Government Facility, page 8. While the Veteran’s notation on this record does not rise to the specificity required to plead CUE in a prior decision, the issue has been potentially raised. As such, this issue is REFERRED to the Agency of Original Jurisdiction (AOJ) for appropriate action to determine whether it was the Veteran’s intent to file a CUE claim. FINDINGS OF FACT 1. In a May 1986 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a nervous condition; while the Veteran appealed the decision, he withdrew that appeal and the rating decision became final. 2. Evidence associated with the record since the May 1986 rating decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for reopening the previously denied claim of entitlement to service connection for an acquired psychiatric disorder have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1982 to March 1983, and from January 1985 to September 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the VA Regional Office that denied the Veteran’s petition to reopen a previously denied, final claim. It was recently before the Board in April 2019 where it was remanded for additional development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in October 2018. The RO denied the Veteran’s service connection claim for an acquired psychiatric disorder (originally claimed as a “nervous condition”) in a May 1986 rating decision. The RO determined, in pertinent part, that the Veteran’s service treatment records noted that he was discharged for an apparent congenital personality disorder, a disability for which service connection cannot be considered as it was not a “disease” or “injury” within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). The Veteran was provided notice of this decision and his appellate rights, and he did appeal the decision within one year. However, after the issuance of a Statement of the Case in October 1986 and a subsequent formal appeal to the Board, the Veteran withdrew his appeal in March 1987. Therefore, the May 1986 rating decision denying service connection became final. See 38 C.F.R. §§ 3.104, 19.129, 19.192 (1985); currently 38 C.F.R. §§ 3.156, 20.203, 20.1103 (2020). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 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. 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 credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the evidence received since the May 1986 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. The Veteran has asserted in various statements, including during his hearing testimony before the undersigned, that while he did have psychiatric problems prior to service, it was not a congenital personality disorder barring service connection. He also appears to argue that, even if such a congenital personality disorder existed, it was aggravated by his military service. See 38 C.F.R. § 3.306. Indeed, the Veteran’s medical treatment records suggest a history of more than one psychiatric disorder, including bipolar disorder and schizophrenia, which VA does not necessarily consider congenital disorders for which service connection is barred. This new evidence addresses the reasons for the previous denial – a disability for which service connection may be granted and a nexus to service – and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed. See Justus, 3 Vet. App. at 513. Accordingly, the claim is reopened. In evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the entire record, and the Justus presumption of credibility no longer attaches. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained in the Reasons for Remand section below, and while it regrets further delay, the Board has determined that additional development is necessary before the merits of the Veteran’s service connection claim for an acquired psychiatric disorder can be addressed. REASONS FOR REMAND Service connection is available for preexisting conditions aggravated during service beyond the course of their natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The law provides that Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such disorders that are recorded in examination reports are considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). History of pre-service existence of disorders recorded at the time of examination does not constitute a notation of such disorders but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); see also Miller v. West, 11 Vet. App. 345, 348 (1998) the presumption of soundness upon entry may not be rebutted without “contemporaneous clinical evidence or recorded history” in the record). When no preexisting condition is noted upon entry into service, a veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). The Secretary must rebut the presumption of soundness with “clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). If the presumption of soundness is rebutted, and the claimed disability is therefore found to have preexisted service, the Veteran can only bring a claim for aggravation of that disability, not for service connection for the disability itself. A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Here, because no psychiatric disorder, including any personality disorder, is noted at enlistment, the Veteran is presumed sound. As noted above, in order to rebut the presumption of soundness, VA must prove that there is evidence both that a current disorder clearly and unmistakably existed prior to service and that it clearly and unmistakably was not aggravated by service. In this case, no medical provider has discussed the Veteran’s history and provided a medical opinion as to any of the above. Such must be remedied on remand. Additionally, the Board notes that it previously remanded the Veteran’s claim to the AOJ to retrieve missing private treatment records. Statements of record at the time noted treatment at Westside Lodge Psychiatric Hospital prior to service and at both Westside Behavioral Health and Goddard Medical Associates after service. However, while records from Westside and Goddard have been obtained, a January 13, 2020 VA Form 21-0820, Report of General Information, indicates that Westwood Lodge permanently closed. No additional attempt appears to have been made, however, to determine where medical records from this facility might currently be located. Further, while the records from Goddard Medical Associates that are of record appear to date back to 1999, the Veteran has reported treatment dating back to 1990. Thus, while on remand, additional attempts should be made to retrieve any outstanding medical records identified by the Veteran. The matter is therefore REMANDED for the following action: 1. Attempt to locate any remaining medical treatment records pertaining to the Veteran from Goddard Medical Associates dating back to 1990, as well as from the former Westwood Lodge Psychiatric Hospital. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. Ask the Veteran to identify any additional outstanding treatment records relevant to his claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 3. After records development is completed, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The examiner must opine as to the following: a) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that the Veteran has an acquired psychiatric disorder that preexisted any period of his active military service? b) If so, state whether there is clear and unmistakable evidence (obvious, manifest, and undebatable) that the preexisting psychiatric disorder was NOT aggravated (i.e., worsened beyond its normal progression) during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. c) If the Veteran’s acquired psychiatric disorder is NOT found to clearly and unmistakably exist prior to service, the examiner should opine as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that it had its onset during service or is related to incident of service. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scarduzio, Robert 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.