Citation Nr: 9925652 Decision Date: 09/09/99 Archive Date: 09/21/99 DOCKET NO. 96-25 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the post operative residuals of a laminectomy at L5-S1. 2. Entitlement to service connection for psychiatric disability, claimed as depression. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from March 1982 to March 1986. He also had National Guard service from May 1986 to May 1987. This matter came to the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In its decision, the RO noted that entitlement to service connection for a bone fragment/old fracture L1 was denied. The veteran did not submit a Notice of Disagreement with that portion of the decision. 38 U.S.C.A. § 7105(a) (West 1991); § 20.200 (1998). Accordingly, that portion of the decision is final and is not currently before the Board. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.302(a) (1998). In this regard, it should be noted that during the veteran's hearing at the RO in October 1996, the issue involving his back disability was clarified as whether new and material evidence had been submitted to reopen a claim of entitlement to service connection for the post-operative residuals of a herniated lumbar disc. In his Informal Hearing Presentation, dated in April 1999, the veteran's representative raised contentions to the effect that service connection remains warranted for the residuals of a fracture of L1. Inasmuch as that issue is not part of the current appeal, it is referred to the RO for appropriate action. The issue of entitlement to service connection for psychiatric disability, secondary to low back disability, is the subject of a remand at the end of this decision. FINDINGS OF FACT 1. The veteran did not appeal an October 1987 decision in which the RO denied the veteran's claim of entitlement to service connection for the post-operative residuals of a herniated disc at L5-S1. 2. Evidence received since the RO's October 1987 decision is neither cumulative nor duplicative of that on file at the time of the decision and is so significant, by itself or in connection with evidence previously assembled, that it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for psychiatric disability, claimed as depression, on a direct or presumptive basis, is not plausible. CONCLUSIONS OF LAW 1. The unappealed October 1987 rating decision, which denied entitlement to service connection for the post-operative residuals of a herniated disc at L5-S1, is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302. 2. The evidence received since the October 1987 rating decision is new and material to reopen the veteran's claim for service connection for the post-operative residuals of a herniated disc at L5-S1. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1998). 3. The claim of entitlement to direct service connection for psychiatric disability, claimed as depression, on a direct or presumptive basis, is not well grounded. 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Low Back In October 1987, the RO denied the veteran's claim of entitlement to service connection for the post-operative residuals of a herniated disc at L5-S1. Evidence on file at that time consisted of private medical reports, dated in 1986 and 1987, from the following: Deaconess Hospital, Evansville, Indiana; Randall G. Norris, M.D.; and William C. Madauss, M.D. Also of record was a Work Capacity Evaluation from the state of Indiana. Those records show that in September 1986, the veteran sustained a low back injury as the result of a lifting accident at work. Myelography confirmed a disc protrusion at L5-S1, and the next month, the veteran underwent a right hemilaminectomy. There was no evidence of any relationship between that surgery and service. The veteran was notified of the October 1987 decision, as well as his appellate rights; however, he did not submit a Notice of Disagreement. Accordingly, that decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302(c). Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 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. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must perform a three step analysis. First, it must determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, immediately upon reopening the claim, the Secretary must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), the claim as reopened (and as distinguished from the original claim) is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the Board may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. "New and material evidence" is evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Evidence added to the record since the October 1987 decision consists of the veteran's service medical records and numerous reports from the VA and private medical sources; articles; lay statements submitted on the veteran's behalf; and the transcript of the veteran's October 1996 hearing. Such evidence shows that in service in August 1984, the veteran sustained a lower back pull and that in January and February 1986, he sustained a low back strain/sprain. Various health care professionals, including Harland W. Wittwer, D.C., (October 1995); James Twomley, M.D., (October 1995 and September 1996); Bryan A. Bloss, M.D., (September 1996); Bryan P. Warren, M.D., (September and October 1995 and April 1996); and Craig N. Bash, M.D., (April 1999) have reported an association between the veteran's post-operative residuals of a laminectomy and his period of service. Clearly such evidence bears directly and substantially upon the specific matter under consideration, and is neither cumulative nor redundant. By itself or in connection with evidence previously assembled, it is so significant that it must be considered in order to fairly decide the merits of the claim. Not only is the additional evidence new and material, it renders the claim plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Accordingly, the claim is well grounded. II. Psychiatric Disability In part, the veteran contends that he has psychiatric disability, depression, as a result of his father's death, which occurred while the veteran was in service. Therefore, he maintains that service connection is warranted. (Note: Although the veteran also contends that his psychiatric disability is the result of his back disability, this portion of the veteran's appeal will only consider the veteran's claim for service connection on a direct or presumptive basis. The question of secondary service connection will be addressed below in the remand portion of this decision.) Service connection connotes many factors, but basically, it means that the facts, shown by evidence, establish that a particular disease or injury resulting in disability was incurred coincident with service in the Armed Forces, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). For certain disabilities, such as a psychosis, service connection may be presumed when that disability is shown to a degree of 10 percent within one year of the veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). The threshold question is whether the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). If the claim is not well grounded, VA has no duty to assist in the development of that claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Murphy, 1 Vet. App. at 81. In order for a direct service connection claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), incurrence or aggravation of a disease or injury in service (lay or medical evidence), and a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical etiology, competent medical evidence that the claim is plausible or possible is required in order for the claim to be well grounded. This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. LeShore v. Brown, 8 Vet. App. 406, 408 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The evidence shows that in service requests were made on behalf of the veteran for a compassionate reassignment due to the death of his father in December 1984. His service medical records, however, are completely negative for any evidence of psychiatric disability. Indeed, during his May 1986 entrance examination for the National Guard, the veteran responded in the negative when asked if he then had, or had ever had, frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. Moreover, a psychiatric evaluation was normal. In May 1987, the veteran was hospitalized at the Memorial Hospital and Health Care Center for a drug overdose. The following month, he was hospitalized at the Southwestern Indiana Mental Health Center, Inc. (Stepping Stone) for polydrug detoxification. He was transferred for further treatment to St. Mary's Medical Center in Evansville, Indiana. At discharge, the diagnoses included substance abuse. No psychiatric disability was reported during any of those hospitalizations. It should be noted that for the purposes of compensation, service connection for drug and/or alcohol abuse is precluded by 38 U.S.C.A. § 1131, as amended by the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351. See, e.g., Barela v. West, 11 Vet. App. 280 (1998). Psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features (subjective depression and anxiety); and mixed personality disorder, was first clinically reported in July 1987, during the veteran's treatment at Southern Hills Counseling Center, Inc. It was noted that as the result of his post-service back injury, he had considerable emotional distress which took the form of subjective depression and anxiety. There was no objective evidence, however, of a chronic acquired psychiatric disability, including depression or anxiety. Although the care giver did state that there was evidence of a preexisting characterological condition, it should be noted that such disorders are not considered diseases within the meaning of the regulations governing the award of compensation benefits. 38 C.F.R. § 3.303(c) (1998). Chronic acquired psychiatric disability, depression, was first reported by Dr. Warren in December 1987 and was associated with the veteran's chronic back pain. He noted that he had been treating the veteran since November 4, 1987. Dr. Warren was also one of the primary care givers during hospitalization for a drug overdose in January and February 1988. At that time, the Minnesota Multiphasic Personality Inventory (MMPI) did not provide the basis for a clear cut diagnostic recommendation but revealed significant elevations of histrionic depressive hysterical psychopathic deviant and schizophrenic scales. The veteran complained that he had been depressed since his father died and since a fall in which he had injured his back. Although the admission diagnoses included depression, the diagnoses at discharge were substance abuse disorder; chronic pain syndrome, back; and dependent personality disorder. In April 1988, the veteran was admitted to Deaconess Hospital for complaints of severe back pain and associated drug problems and depressive episodes. On admission, a psychiatric evaluation revealed a major depressive disorder. In May 1988, the veteran was again hospitalized for substance dependence and a dependent personality disorder. There was no evidence of chronic acquired psychiatric disability. Again, one of the primary care givers was Dr. Warren. In a Mental Impairment Evaluation Form, dated later that month, Dr. Warren's diagnoses were passive dependent personality disorder; psychogenic pain disorder; and narcotic dependence disorder. In Physical Capabilities Evaluation form, dated in May 1988, David W. Johnson, M.D., reported that he was treating the veteran for low back disability and that the veteran had associated psychiatric problems. Dr. Johnson noted that the veteran had chronic pain syndrome and depression. In an August 1988 psychiatric report to the Indiana State Disability Determination Division, S. T. Ha, M.D., reported that the veteran had the following relevant diagnoses: Adjustment disorder with mixed emotional features, mild to moderate; substance abuse, not otherwise specified, in remission; and personality disorder, not otherwise specified (histrionic and borderline type). That same month, a psychological evaluation by William U. Weiss, Ph.D., revealed a borderline personality; major depression, recurrent with psychotic features; somatoform pain disorder; borderline intellectual functioning; and chronic benign intractable pain syndrome. His psychosocial stressors reportedly appeared severe in view of the veteran's significant personality difficulties, as well as his chronic pain. More recent records show that the veteran has continued to receive treatment for various psychiatric disabilities, including major depression, a personality disorder, schizophrenia, and anxiety reaction (See, e.g., private outpatient records, dated in April and July 1994 and VA outpatient treatment records, dated from September 1995 to April 1998). In November 1995, as the apparently lone item of evidence even facially probative of service-incurred depression, Dr. Warren stated that the veteran's depression was precipitated by the death of the veteran's father while the veteran was in service. That opinion, though, does not eliminate the need to present evidence of an identifiable psychiatric disease in service or of a psychosis during the first year after service. In this regard, however, the evidence of record, as itemized with particularity hereinabove, simply does not fulfill either of those requirements. In view of the foregoing, then, the Board is of the opinion that the veteran's claim of entitlement to service connection for psychiatric disability is not well-grounded on a direct or presumptive basis. To that extent, the appeal is denied. ORDER New and material evidence having been received, the request to reopen the claim of entitlement to service connection for the post operative residuals of a laminectomy at L5-S1 is granted. The claim of entitlement to service connection for psychiatric disability, claimed as depression, on a direct or presumptive basis, is denied. REMAND In light of the foregoing decision to reopen the claim of entitlement to service connection for the post operative residuals of a laminectomy at L5-S1, a de novo review of the evidence is required. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). It would be premature for the Board to take such action, as it could result in prejudice to the veteran's claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Since the last Supplemental Statement of the Case (SSOC) was issued to the veteran (October 1998), he has submitted additional evidence including the statement from Dr. Bash noted above. Dr. Bash's statement was received for the record less than 90 days after the veteran's appeal was certified to the Board. That statement has not yet been reviewed by the RO, and the veteran's representative has expressly stated that the veteran does not waive to have it so reviewed (Informal Brief of Appellant in Appealed Case, dated in April 1999). Accordingly, it must be reviewed by the RO prior to further appellate consideration. 38 C.F.R. § 20.1304(c) (1998); see Sutton v. Brown, 9 Vet. App. 553, 568 (1996). Finally, the veteran contends that his psychiatric disability, claimed as depression, is primarily the result of his post-operative residuals of a herniated disc at L5-S1. As such, that issue is inextricably intertwined with the issue of entitlement to service connection for the post operative residuals of a laminectomy at L5-S1. Accordingly, the issue of secondary service connection for psychiatric disability must be held in abeyance pending further development of the issue of entitlement to service connection for the post-operative residuals of a herniated disc at L5- S1. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In light of the foregoing, the Board is of the opinion that additional development of the record is necessary prior to further appellate consideration. Accordingly, the case is remanded for the following actions: 1. The RO should forward the veteran's claims folder to an appropriate VA specialist for review and a determination as to the nature and etiology of the veteran's post operative residuals of a laminectomy at L5-S1. After reviewing the entire record, the examiner should specifically state whether it is at least as likely as not that the post operative residuals of a laminectomy at L5-S1 are related to the veteran's period of service. A complete rationale for any opinion expressed must be provided. 2. When the requested actions have been completed, the RO should undertake any other indicated development and then readjudicate the merits of the issue of entitlement to service connection for the post operative residuals of a laminectomy at L5-S1. In so doing, the RO must consider all of the evidence of record, including, but not limited to, the statement of Craig N. Bash, M.D., (April 1999). In the event such claim is granted, the RO must then readjudicate the issue of entitlement to service connection for psychiatric disability, claimed as secondary to the post operative residuals of a laminectomy at L5-S1. If the benefit(s) sought on appeal are not granted to the veteran's satisfaction, he and his representative must be furnished an SSOC on all issues remaining in appellate status and afforded an opportunity to respond. Thereafter, if otherwise in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action until he is otherwise notified. MICHAEL P. VANDER MEER Acting Member, Board of Veterans' Appeals