Citation Nr: 0005185 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-09 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a psychiatric condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from October 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 1998 rating decision of the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). The rating decision denied the veteran's application that his earlier claim of entitlement to service connection for a psychiatric condition be reopened on the basis that new and material evidence pertinent thereto had been submitted. The veteran filed a notice of disagreement with that rating decision in April 1998 and was provided with a statement of the case in June 1998. The veteran filed his substantive appeal in July 1998. Subsequently, in April 1999, the RO issued a supplemental statement of the case to the veteran. FINDINGS OF FACT 1. A rating decision issued to the veteran in December 1971 denied his claim of entitlement to service connection for anxiety reaction and psychosis. 2. Evidence added to the record since the December 1971 rating decision is not cumulative or redundant, is relevant and probative, and is so significant that it would be necessary to a fair determination of the merits of the veteran's service connection claim. 3. The evidence of record does not make a plausible showing that the veteran's current psychiatric condition is related to his active service. CONCLUSION OF LAW 1. New and material evidence warranting the reopening of the veteran's claim of entitlement to service connection for anxiety reaction and psychosis has been presented since the December 1971 rating decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. A well-grounded claim of entitlement to service connection for a psychiatric condition has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend that the veteran is disabled with a psychiatric disorder. They maintain that service connection for the claimed disability is warranted because it arose during the veteran's active service. A December 1971 rating decision denied the veteran's original claim of entitlement to service connection for a psychiatric condition. (The claims file did not contain documentation of that claim.) The rating decision indicated that the claimed disorder had been classified as anxiety reaction and psychosis under Diagnostic Code 9400 (pertaining at the time of the rating decision, as well as currently, to "generalized anxiety disorder"). Evidence that had been of record prior to the December 1971 rating decision consisted of the veteran's service medical records and the report of a September 1971 evaluation conducted for VA on a fee basis by Dr. Black. The service medical records were negative for a psychiatric disorder. The report of the veteran's March 1969 pre-induction examination indicated this and also documented that in the history that he gave, the veteran denied nervous trouble, depression or excessive worrying, sleep disturbances, periods of unconsciousness, frequent or terrifying nightmares, and the like. The veteran admitted problems with bed-wetting and also gave a history of having injured his head (along with other parts of his body) in an automobile accident within the previous 5 years. The veteran's May 1971 discharge examination was negative for any psychiatric disorder or symptoms of emotional disturbance reviewed in the pre-induction examination report. The service medical records also disclosed that in May 1971, three days before his discharge from service, the veteran was given a prescription for a tranquilizer, chlorpromazine (Thorazine). The September 1971 report of Dr. Black stated that the veteran had recounted that he began to feel depressed about one month before his discharge from service and that he had used heroin during his service (which involved time in the Republic of Viet Nam) but not since. Dr. Black diagnosed the veteran with "anxiety reaction with depressive features" and recommended that he have psychotherapy. In the matter being appealed, the veteran has applied to have his claim of entitlement to service connection for a psychiatric condition reopened on the basis that new and material evidence pertinent thereto has been added to the record. In this decision, the Board first will assess the merits of that application. In determinations of whether there exists new and material evidence pertaining to a claim, the evidence to be evaluated is that which has been added to the record since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996); Vargas- Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In the assessment of whether evidence is new and material, the credibility of each piece of evidence must be presumed, see Justus v. Principi, 3 Vet. App. 510 (1992), unless inherently incredible, see Duran v. Brown, 7 Vet. App. 216 (1994), or incompetent, see Moray v. Brown, 5 Vet. App. 211 (1993). If evidence secured in support of a claim is found to be new and material, the claim must be reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991). In this matter, therefore, evidence potentially representing new and material evidence will be that introduced into the record since the December 1971 rating decision. Medical records received from the State University of New York (SUNY) Health Science Center, Adult Psychiatric Clinic concerned inpatient treatment of the veteran from July 1990 to November 1991. They disclosed that the veteran received psychotherapy there and was diagnosed with 'personality disorder." He was assigned a Global Assessment of Functioning (GAF) Scale score of 75. The claims file also contained VA inpatient and outpatient medical records. Records from a VA Medical Center (VAMC) in Syracuse, New York were received by the RO in October 1997 and covered the periods July 1984-August 1985 and April 1993- October 1997. In addition, records of treatment received by the veteran at the VAMC in Canandaigua, New York covering the periods August 1996-August 1997 and June 1997-August 1997 were submitted to the RO in October 1997 and January 1998, respectively. The July 1984-August 1985 records disclosed that the veteran had been diagnosed with bipolar disorder and was taking lithium, desipramine, and alprazolam (Xanax). In April 1994, the veteran was referred to for further evaluation after having requested a prescription for an anti- depressant medication. The diagnostic impression was of possible dysthymia and alcohol dependence. It was noted that the veteran did not appear in immediate need of an anti- depressant. A progress note dated in April 1994 indicated that the veteran had been prescribed psychotherapy (Zoloft) and then began to evince symptoms of panic disorder when the prescription was discontinued. The veteran continued to be seen as an outpatient through 1994. The records showed from December 1994, desipramine, Zoloft, and other medications were again tried but produced no significant change in the veteran's symptoms. In June 1995, the veteran was again diagnosed with depression and given a strong recommendation that he have psychotherapy again. It was noted that the veteran was reluctant to follow this or other recommendations. A progress note dated in October 1995 indicated that the veteran continued to refuse psychotherapy, which again was documented as strongly recommended. It was observed in the note that the veteran did not exhibit symptoms of psychosis. In October 1996, after undergoing a series of tests, the veteran received a diagnosis of schizophrenia, undifferentiated, with paranoid and depressive features. Records for February 1997 disclosed that at that time, he was taking another serotonin uptake inhibitor (Prozac) and was prescribed additional medication, a psychotropic drug (Risperdal). It was noted that the veteran's maternal grandfather and his mother both took antipsychotic medication. The VAMC records also documented that the veteran began group psychotherapy there in February 1997. In June 1997, the veteran was referred from the Syracuse, New York VAMC to the Canandaigua, New York VAMC for electroconvulsive therapy (ECT). He received a series of treatments until he was discharged in July 1997. Thereafter, through August 1997, he returned to the Canandaigua, New York facility periodically for maintenance ECT while receiving follow-up care at the Syracuse, New York VAMC. A July 1997 progress note prepared the day before his discharge stated that the depression of the veteran had improved. An August 1997 discharge summary prepared at the conclusion of the ETC stated a final diagnosis of major depressive disorder, recurrent. The discharge summary revealed that the veteran continued to take antidepressant medicine for his condition. Also added to the record since the December 1971 rating decision were the reports of two VA examinations of the veteran. A general examination was conducted in July 1998. Among the diagnosis resulting from the examination, that pertaining to the veteran's psychiatric condition was depressive disorder. A psychiatric examination was performed in August 1998. It produced a diagnosis of major depression with psychotic features. The veteran received a GAF score of 52. i. New and Material Evidence As defined by regulation, new and material evidence means evidence not previously submitted 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 the evidence previously assembled, is so significant that it must be considered in order that the merits of the claim may be fairly decided. 38 C.F.R. § 3.156(a) (1999); see Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). It has been held in Hodge v. West that the regulatory standard constitutes the proper test of the materiality of new evidence. Hodge v. West, 155 F.3d 1356; see also Elkins v. West, 12 Vet. App. 209 (1999). In addition, in order to be material, or probative, evidence also must be competent on the issue to which it pertains. See Moray v. Brown, 5 Vet. App. 211 (1993). Having reviewed the evidence presented or secured since the December 1971 rating decision, the Board is of the opinion that it includes new and material evidence. Some of the evidence is new because it supplies new information about the veteran's psychiatric condition. Prior to the December 1971 rating decision, the record contained a diagnosis of anxiety reaction with depressive features. The evidence added to the record thereafter shows that the veteran received diagnoses indicative of major depression and of psychosis or psychotic traits. The sources of this evidence are medical experts, and the evidence therefore is competent. Grottveit v. Brown, 5 Vet. App. 91 (1993). This evidence also shows that the veteran received ECT and that he was prescribed psychotropic drugs. In addition, the new evidence is probative, or material. Insofar as it illuminates the veteran's post- service psychiatric condition, it goes to the merits of the veteran's claim of entitlement to service connection for his disorder and thus must be considered in order that a fair assessment of the veteran's service connection claim may be made. Thus, reopening of that claim is warranted. ii. Well-Grounded Claim Having reopened the veteran's claim, the Board observes that claims involving the question of new and material evidence are to be governed by a three-step process. First, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) sufficient to reopen the claim; second, if the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim is well grounded; third, if the claim is well grounded, its merits must be addressed, but only after ensuring that the duty to assist the claimant under 38 U.S.C.A. § 5107(a) has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc). See also Winters v. West, 12 Vet. App. 203 (1999) (en banc). A person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Such a claim need not be established conclusively in order to satisfy the claimant's initial burden of producing evidence. It is sufficient if the evidence of record establishes a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In particular, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service; and a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Evidence of record will be accepted as credible for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the evidentiary source. King v. Brown, 5 Vet. App. 19, 21 (1993). However, incompetent evidence will not be considered in an assessment of whether a claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91. When the issue is medical in nature, such as medical etiology or diagnosis, expert medical evidence is required. Caluza, 7 Vet. App. at 506; Voerth v. West, 13 Vet. App. 117 (1999). Turning to the veteran's claim of entitlement to service connection for a psychiatric condition, the Board finds that even with the evidence introduced into the record since the December 1971 rating decision, the claim is not well- grounded. Sufficient competent evidence of current disability is of course supplied by the medical diagnoses documented in the record. However, there is no competent evidence of record making a plausible showing that the veteran incurred, or experienced the aggravation of, a psychiatric disorder during service. That the veteran was prescribed a tranquilizer three days before his discharge from service does not make it plausible that he incurred a psychiatric disorder during service, particularly in view of the fact that his separation examination was negative for any psychiatric or other emotional abnormality. There is no documentation that the veteran was diagnosed with a psychiatric disorder of any kind during service. Nor may a statutory presumption of in-service incurrence of disease be applied in this case. Psychosis that is manifested to a compensable degree within one year from a veteran's separation from service may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). However, although the veteran was diagnosed with a psychiatric disorder during this post- service presumptive period, the disorder diagnosed was not characterized as psychosis. Furthermore, no competent evidence relates the veteran's current psychiatric condition to any disease or injury incurred in service. If a disease is not shown to be chronic during service, service connection may nevertheless be granted when there is continuity of symptomatology post-service. 38 C.F.R. § 3.303(b) (1999). However, even in that circumstance, the record must contain competent medical evidence of a nexus between the continuous symptomatology (or an in-service injury or disease) and the alleged current disability in order for a claim of entitlement to service connection to be well grounded. Voerth, 13 Vet. App. 117. Such evidence is absent here. Therefore, the veteran's claim of entitlement to service connection for a psychiatric condition is not well grounded and will be denied. ORDER To the extent that the Board has determined that new and material evidence has been received sufficient to reopen the veteran's claim of entitlement to service connection for a psychiatric condition, the appeal is granted. As a well-grounded claim has not been presented, the claim of entitlement to service connection for a psychiatric condition is denied. BARBARA B. COPELAND Member, Board of Veterans' Appeals