Citation Nr: 22012402 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-40 150 DATE: March 3, 2022 ORDER New and material evidence having been received, the previously denied claim of entitlement to service connection for an acquired psychiatric disability (previously characterized as nervous condition including stress and personality disorder) is reopened. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder (GAD), and insomnia disorder, is remanded. FINDINGS OF FACT 1. In an April 1995 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a nervous condition, including stress and personality disorder (claimed as a mental, stress, and nervous condition). He did not file a Notice of Disagreement (NOD) within one year of the April 1995 rating decision notification letter, and VA did not receive new and material evidence during the appeal period. 2. In a December 2001 rating decision, the AOJ denied service connection for a nervous condition including stress and a personality disorder as well as PTSD. However, notification to the Veteran regarding the December 2001 rating decision was returned as undeliverable, and there is no indication that the AOJ attempted to contact the Veteran or his representative to obtain an updated address. CONCLUSIONS OF LAW 1. The April 1995 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. 2. The presumption of regularity attaches regarding the AOJ's attempt to mail the December 2001 rating decision notification letter to the Veteran; but the presumption is rebutted by clear evidence of irregularity. Therefore, the December 2001 rating decision did not become final. 38 U.S.C. § 5104, 7105; 38 C.F.R. §§ 3.103, 19.52, 20.1103; Romero v. Wilkie, 33 Vet. App. 84, 86 (2020). 3. New and material evidence having been received, the previously denied service connection claim for an acquired psychiatric disability is reopened. 38 U.S.C. § 501; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to July 1993. These matters come before the Board of Veterans' Appeals (Board) from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his July 2017 substantive appeal (VA Form 9). A Board hearing initially was scheduled for March 2020, as set forth in a February 2020 notification letter. However, that letter was returned as undeliverable later that month, and the Veteran confirmed that he never received it. Accordingly, a hearing was rescheduled for February 2021, and he was notified in December 2020 and February 2021. However, that hearing date was postponed. Another Board hearing was scheduled for July 2021, and the Veteran was so notified in May 2021. However, he failed to report, and neither he nor his representative showed good cause or timely requested rescheduling. Therefore, the Veteran's Board hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The Veteran characterized the petition to reopen on appeal as one for service connection for PTSD. However, upon review of the evidence, the Board has broadened the claim to include other diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Moreover, the Board finds that the present petition to reopen constitutes the same claim as the original, prior, February 1995 service connection claim for a mental, stress, and nervous condition. See Velez v. Shinseki, 23 Vet. App. 199 (2009) (providing guidance for distinguishing a new psychiatric service connection claim from a petition to reopen a previously denied claim, considering factors such as: what symptoms the Veteran used in describing the prior claims; what the medical evidence showed at the time of the prior denials (e.g., what disorders the claimant had been diagnosed with); and how broadly the AOJ adjudicated the scope of the prior claims). The present claim is based on the same general contentions as the February 1995 claim, which he broadly phrased as one for a mental, stress, and nervous condition. Similarly, the April 1995 rating decision broadly phrased the claim as service connection for a "nervous condition including stress and a personality disorder." For the reasons discussed below, the most recent prior, final denial of the service connection claim for an acquired psychiatric disability is the April 1995 rating decision, and new and material evidence has been received since that rating decision to reopen the claim. Legal Criteria Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Generally, in the legacy appeals system, a claim which has been denied in an unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if 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. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. The April 1995 rating decision became final; however, the December 2001 rating decision did not become final. Turning to the procedural history, the Veteran submitted an initial claim for service connection for a mental/nervous condition and stress in February 1995. In connection with this claim, the AOJ reviewed the Veteran's service treatment records (STRs) showing that he was seen on several occasions for suicidal and homicidal ideation and was subsequently diagnosed with dependent personality disorder and suicidal ideation with continued risk for harm to self or others in the future and recommended for administrative separation. In an April 1995 rating decision, the AOJ denied service connection for a nervous condition, including stress and personality disorder (claimed as a mental, stress, and nervous condition). The AOJ reasoned that the Veteran's nervous condition including stress and personality disorder was a constitutional or developmental abnormality, i.e., a condition which was present at birth and/or would have developed with or without entry into military service. The Veteran did not file an NOD within one year of the April 1995 rating decision notification letter, and VA did not receive new and material evidence within that appeal period. Therefore, the April 1995 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. After the April 1995 rating decision, the AOJ obtained additional service personnel records that had existed at the time of that decision. Notably, under 38 C.F.R. § 3.156 (c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file "relevant" official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will "reconsider" the claim de novo. See 38 C.F.R. § 3.156 (c)(1). In such instance, the Veteran is not required to provide new and material evidence to reopen the claim under 38 C.F.R. § 3.156 (a). In this case, the Board finds that reconsideration of the April 1995 rating decision is unwarranted under the service records exception. In the context of 38 C.F.R. § 3.156(c)(1), "relevant" means the new service records must address a factual issue that was dispositive against the veteran in the prior VA adjudicationi.e., an element in dispute. Kisor v. McDonough, 995 F.3d 1347, 1362-62 (Fed. Cir. 2021). Here, additional service records received after the April 1995 rating decision reference the Veteran's administrative discharge due to his personality disorder. However, those records were duplicative of evidence previously of record and considered in the April 1995 rating decision. See DD Form 214 received in February 1995 (specifying circumstances of discharge due to personality disorder). Moreover, additional service records received after the April 1995 rating decision documented the circumstances of the Veteran's active service, such as his military occupational specialty (MOS) duties and duty station aboard a submarine. However, those records also were duplicative of information in the DD Form 214 that was previously of record at the time of the April 1995 rating decision and considered therein. Therefore, reconsideration of the April 1995 rating decision is unwarranted under the service records exception. In August 2001, the Veteran sought to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, now claimed as "mental and nerve condition, and PTSD." In a December 2001 rating decision, the AOJ denied service connection for "nervous condition including stress and personality disorder" and PTSD. However, notification to the Veteran regarding the December 2001 rating decision was returned as undeliverable, and there is no indication that the AOJ attempted to contact the Veteran or his representative to obtain an updated address. The copy sent to his representative was not. Notably, a review of the pertinent regulations shows that a claimant is entitled to notice of any decision made by VA affecting their benefits. Significantly, "...[a] claimant, or his or her representative, must file a [NOD] with a determination by the [AOJ] within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final." 38 C.F.R. § 19.52(a) (emphasis added) (formerly 38 C.F.R. § 20.302(a)). Also, "[i]n the case of a decision by the Secretary under section 511 of this title [38 U.S.C. § 511] affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant's representative) notice of such decision." 38 U.S.C. § 5104(a) (emphasis added). Furthermore, "[e]very claimant has the right to written notice of the decision made on his or her claim...." 38 C.F.R. § 3.103(a) (emphasis added). "Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief." Id. § 3.103(b)(1) (emphasis added). As a matter of law, the existence of a legal duty to mail a decision triggers the attachment of the presumption of regularity. Romero v. Wilkie, 33 Vet. App. 84, 86 (2020). Under this presumption, "...if law imposes a relevant, official duty on an official, we presume that the official has properly performed that duty, unless there is evidence to the contrary." Id. at 91. The presumption of regularity can be rebutted by "clear evidence" of irregularity. Id. at 93. Once the appellant rebuts the presumption, the burden shifts to the Secretary to establish that the relevant decision was mailed as required by statute and regulation, or that appellant or his representative actually received the relevant decision. See id. at 99. Here, VA had a legal duty to notify both the Veteran and his representative of the December 2001 rating decision. Therefore, the presumption of regularity attached. However, the presumption was rebutted because there was clear evidence of irregularity. The December 2001 notification letter was returned as undeliverable, and there is no indication that the AOJ made any subsequent efforts to contact the Veteran or his representative to attempt to obtain an updated address needed to re-mail the letter. Although the copy of the December 2001 letter sent to the representative was not returned as undeliverable, the applicable statute and regulation both expressly required the AOJ to send notice of the December 2001 rating decision to both the claimant and his representative. 38 U.S.C. § 5104(a); 38 C.F.R. § 3.103(a) and (b)(1). In summary, since the presumption of regularity in the mailing of the December 2001 rating decision notice to the Veteran has been rebutted, the December 2001 rating decision did not become final. Therefore, the relevant inquiry for this petition to reopen is whether new and material evidence has been received since the prior, final April 1995 rating decision. 2. New and material evidence has been received since the April 1995 rating decision to reopen the service connection claim for an acquired psychiatric disability. As above, in an April 1995 rating decision, the AOJ denied service connection claim for a nervous condition, including stress and personality disorder, reasoning that the Veteran's nervous condition including stress and personality disorder is a constitutional or developmental abnormality, i.e., a condition which was present at birth and/or would have developed with or without entry into military service. For the reasons discussed in the preceding section, the April 1995 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. Here, the previously denied claim for service connection for an acquired psychiatric disability is reopened based on the following new and material evidence received since the April 1995 rating decision: Competent evidence of current psychiatric disabilities other than a personality disorder (including PTSD, GAD, and insomnia disorder): see November 2016 disability benefits questionnaire (DBQ); see also September 2016 opinion by private treating psychologist, Dr. R.W. A September 2016 private opinion by private treating psychologist, Dr. R.W. (opining that the Veteran's current PTSD is related to his military service). The Veteran's presumptively credible lay statements describing an alleged in-service stressor, and suggesting that his current psychiatric issues may have begun during and continued since active service. See, e.g., June 2016 correspondence; July 2016 and September 2016 statements; July 2017 VA Form 9. Justus, supra. The evidence summarized above was not previously submitted to agency decision makers and relates to unestablished facts necessary to substantiate the claim. Therefore, new and material evidence has been received to reopen the previously denied claim. See 38 C.F.R. § 3.156. REASONS FOR REMAND 3. The claim of entitlement to service connection claim for an acquired psychiatric disability to include PTSD, GAD, and insomnia disorder, is remanded. As above, the previously denied claim of entitlement to service connection claim for an acquired psychiatric disability has been reopened based on the submission of new and material evidence. Unfortunately, the following additional development is necessary in order to resolve this claim. Private treatment records: The evidence of record references outstanding private treatment records. See September 2016 opinion by private treating psychologist, Dr. R.W.; see also August-September VA treatment notes. On remand, the RO must attempt to obtain authorization and request them. If they are unavailable, then the RO must advise the Veteran so and give him an opportunity to submit them. PTSD stressor research: The Board finds that the AOJ made inadequate efforts to attempt to verify the Veteran's claimed in-service stressor in which he reportedly feared for his life when a fire alarm / announcement went off while he was serving aboard a submarine. See September 2016 memorandum (AOJ found insufficient information received to corroborate the claimed stressor). The Veteran submitted multiple statements providing the minimum threshold of detail required to attempt to research the claimed stressor, including: the approximate month and year (May 1993); his duty station at the time (submarine, USS Henry M. Jackson SSBN730(B)); the submarine's location at the time (Bangor, Washington "in dry dock at delta pier"); and the name and position of another person involved in the incident (Shutdown Reactor Operator / Petty Officer EMZ B.). See June 2016 correspondence; see also July 2016 and September 2016 statements; July 2017 VA Form 9. VA examination and medical opinion: The AOJ must obtain a VA examination and medical opinion to address whether a current acquired psychiatric disability is directly related to psychiatric issues documented in the Veteran's STRs. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. After obtaining completed releases from the Veteran, request all outstanding treatment records from Family Health Center of Southern Oklahoma (including Dr. R.W.) and any other identified private / non-VA providers. Document all records requests and any negative responses. If any requested records are unavailable, then notify the Veteran and his representative and give them the opportunity to submit the records. 2. Complete all appropriate development to attempt to verify the Veteran's claimed in-service stressor involving a fire alarm / announcement that reportedly went off during his service aboard the submarine, USS Henry M. Jackson SSBN730(B) around May 1993 in Bangor, Washington. See June 2016 correspondence and July and September 2016 statements; July 2017 VA Form 9. Document all negative responses. If any requested records are unavailable, then notify the Veteran and his representative. 3. Do not proceed with the following instructions until completing those above (to the extent possible). 4. Schedule a VA examination to assess the nature and etiology of the Veteran's current psychiatric disabilities. The examiner must answer the following questions, with full supporting rationales: (a.) List all current psychiatric disabilities from 2016 through the present. See November 2016 private psychological DBQ and September 2016 nexus statement by private treating psychologist, Dr. R.W. (noting diagnoses of PTSD, GAD, and insomnia disorder). (b.) If the VA examiner finds that the Veteran has a current diagnosis of PTSD, is the evidence in approximate balance (nearly equal) that there is a link between his current PTSD symptoms and a verified in-service stressor(s)? The Veteran contends that his current psychiatric disabilities are due to an alleged incident when he reportedly was in fear for his life when an alarm / announcement went off while he was serving aboard a submarine in May 1993. See June 2016 correspondence and July and September 2016 statements; July 2017 VA Form 9. (c.) Is the evidence in approximate balance (nearly equal) that any current, non-PTSD psychiatric disabilities (including GAD and insomnia disorder see November 2016 private DBQ) were incurred in or are otherwise related to active service, to include whether such disability manifested within one year after the Veteran's discharge from service? Please expressly consider several STRs documenting psychiatric issues, e.g.: April 1990 psychiatric consult regarding sleepwalking episodes; May 1993 gastroenterology consult noting anxiety NOS in context of reoccurring vomiting; July 1993 hospitalization for suicidal ideation. Also, please consider the September 2016 statement from Dr. R.W. linking the Veteran's current psychiatric problems with his military service. The examiner must note review of the complete claims file, including this remand. If any requested finding is not possible without resort to speculation, then the examiner must explain why. APRIL MADDOX Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Janofsky, 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.