Citation Nr: 0005373 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-03 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Maureen A. Young, Associate Counsel INTRODUCTION The veteran had active military service from August 1974 to August 1976 and from December 1983 to December 1986. The veteran also served in the Army National Guard from September 1976 to September 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Board notes that entitlement to service connection for a neuropsychiatric condition was denied by the RO in March 1977. That decision was not appealed by the veteran and it became final in March 1978. The RO, in an August 1995 rating decision declined reopening the veteran's claim for a nervous condition. This claim was reviewed on a de novo basis and was found to be not well grounded. The veteran did not appeal that decision which became final in August 1996. In a December 1997 rating decision, the RO again reviewed the claim of entitlement to service connection for a nervous condition on a de novo basis and denied service connection. In accordance with the United States Court of Appeals for Veteran Claims (Court), ruling in Barnett v. Brown 8 Vet. App. 1 (1995), the Board is obligated to address the issue of new and material evidence regardless of whether the RO based its determination on that issue. Hence, the Board will proceed with a determination of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, which was denied in August 1995. FINDINGS OF FACT 1. The RO denied reopening the claim for service connection for a psychiatric disorder when it issued an unappealed rating decision in August 1995. 2. The evidence received since the final disallowance in August 1995 provides a more complete picture of the circumstances surrounding the origin of the veteran's claimed disability, bears directly and substantially upon the issue at hand, and because it is neither cumulative nor redundant, and is significant, it must be considered in order to fairly decide the merits of the claim. 3. The claim of entitlement to service connection for a psychiatric disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. Evidence submitted since the August 1995 decision wherein the RO denied entitlement to service connection for a nervous condition is new and material and the veteran's claim for that benefit is reopened. 38 U.S.C.A. §§ 5104, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a), 20.1103 (1999). 2. The claim of entitlement to service connection for a psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records reveal that the veteran underwent a pre-enlistment examination in April 1974 and denied any history of depression, excessive worry and nervous trouble of any sort. Clinical evaluation further found no psychiatric or neurologic abnormalities. A Physical Profile Record dated in September 1975 described the veteran as having known emotional and attitudinal problems, which may compromise his judgment and reliability. It was indicated that he was medically qualified for duty with limitations. It was noted on an in-service health clinic record in April 1976 that the veteran had slight depression and that he had been drinking quite a bit that night. In July 1976 the veteran underwent a separation examination. Clinical evaluation revealed that he had no psychiatric or neurologic abnormalities. There were no personality deviations noted. Further, the veteran reported no history of depression or excessive worry or nervous trouble of any sort. In August 1976, five days after his discharge from the service, the veteran was hospitalized at Memphis VA Medical Center (MC), for approximately 25 days. On admission he was extremely agitated, he was shouting, and he tore a piece of the ceiling down. He reported having auditory hallucinations. He was placed in full restraints and administered Thorazine. He was diagnosed with acute psychotic episode, resolved. At the time of discharge from the hospital, there was no evidence of psychotic thinking or affective disorder; he was discharged, competent and able to work full-time on no medications. In September 1976 the veteran filed a claim for service connection for a psychotic condition. He underwent VA compensation examination in February 1977. VA physician noted that there was no evidence of any type of major emotional disturbance. The veteran was well oriented and his memory was intact. The physician noted that he found no evidence of any sequelae from the veteran's previous hospitalization for an acute emotional episode. The diagnosis was adjustment reaction of early adult life. In March 1977 the RO denied the veteran's claim for service connection for a neuropsychiatric condition. The RO noted that VA examination revealed adjustment reaction of early adult life and there was nothing to suggest emotional illness. This decision was not appealed. The veteran was examined for re-enlistment in November 1983. He denied ever having depression, excessive worry or nervous trouble of any sort. He indicated that he had been a patient in VA hospital in Memphis, Tennessee. He did not disclose that such hospitalization was due to a psychotic episode. Clinical evaluation showed no psychiatric or neurologic abnormalities. In August 1985 the veteran underwent clinical evaluation. He was diagnosed with situational stress reaction relative to marital problems. His symptoms included sleeplessness, failure to eat, alcohol abuse and aggressive behavior. It was noted that there was marked improvement in his attitude and affect after his first session. He was psychiatrically cleared for any administrative action deemed appropriate by command. In an April 1987 medical history report for the purpose of enlistment in the Army National Guard, the veteran reported he had no depression, excessive worry or nervous trouble of any sort. He indicated that he was in good health. There was no neurologic or psychiatric abnormalities found on clinical evaluation. In September 1994 the veteran requested his claim for a psychiatric disorder be reopened. He asserted that he had been admitted to the Memphis VAMC within two months of his release from active duty with a diagnosis of paranoid schizophrenia. He stated that he was, at that time, a patient at the same Memphis VAMC and for the same condition. He was then seen on an outpatient basis until three years previously which coincided with his divorce in 1991. During his hospitalization in September 1994 the veteran was diagnosed with polysubstance dependence (alcohol, cocaine, marijuana and tobacco). He described his mood as depressed and withdrawn. He stated that he has had suicidal thoughts but has never acted on them. He claimed he hears muffled voices, which he can't understand. He stated that alcohol and crack makes the voices go away and that using such substances is not a problem for him. In addition to a diagnosis of polysubstance dependence under Axis I, a diagnosis of moderate was rendered under Axis IV, and his Global Assessment of Functioning (GAF) was 40 on admission and 50-55 on discharge. The September 1994 admission notes indicated that the veteran had a history of bipolar disorder. During this admission the veteran related that he had been receiving outpatient treatment In August 1995 the RO denied reopening the veteran's claim for service connection for a nervous condition on the basis that the claim was not well grounded. This decision was not appealed. In June 1997 the veteran again filed a claim for service connection for mental problems, specifically, schizophrenia and manic depression. Subsequent to the August 1995 disallowance, the RO received progress notes from the local VA mental health center dated from June 1997 to July 1997. These progress notes indicate that the veteran was taking medication and that he was feeling better. There was no diagnosis provided in these reports. Progress Notes of June 1997, received by the RO in September 1997, indicated that the veteran complained that he was depressed. He was irritable at times when pressed for too much detail and did not want to be questioned about certain things. It was noted that part of his depression is wondering about his living accommodations, relationships with people and not holding a job to support himself. He was diagnosed with bipolar affective depressed type, mixed substance abuse, and GAF of 40 to 50. Medication was prescribed. In August 1997 the RO received a portion of the veteran's service medical records, including reports of his entrance and separation physical examinations. The content of pertinent service medical records is described above. VA mental disorder examination was conducted in October 1997. The veteran reported that he was hospitalized for depressive symptomatology with auditory hallucinations and persecutory depreciating kind of comments from the hallucinations in 1989 and 1991. He further reported that he developed his most severe depressive reaction in 1994 reaching the point where he stuffed his tail pipe in the car wherein he was sleeping and tried to carbon monoxide himself in a suicide attempt. On examination, the physician noted that the veteran's content of thought revealed no evidence of formal thought disorder. He did not have any thought content that would suggest a schizophrenic disorder. The physician further noted that the veteran's thought content and his associations were tight. He had no autistic form of ideation and no hallucinatory phenomenon. His anxiety was under control. His insight was quite good. The physician stated that the veteran knows that he has a mood disorder and he knows it must be treated with medications. The diagnosis was bipolar affective disorder. The physician stated that the veteran's life stressors are in the moderate to severe category depending upon whether he is in treatment. The physician further noted that the veteran's GAF score puts him in the 20 to 40 percent range. In June 1998 the veteran stated that he had no problems before he went in the Army. He further stated that the pressure of combat training broke him down and caused his manic depression. At his personal hearing in October 1999 the veteran testified that his psychiatric problems began in basic training and got worse when he went to Germany. Hearing Transcript (Tr.), pp. 3, 9, 11. He stated that he did not seek any medical treatment for his psychiatric problem. Tr., p. 4. He testified that during his second enlistment a psychiatrist said that he had a nervous breakdown. Tr., p. 5. He stated that his current diagnosis is bipolar disorder. Tr., p. 8. Criteria If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as otherwise provided by regulation. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1999). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of VA as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a) (1999). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103 (1999). 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. 38 U.S.C.A. § 5108 (West 1991). The determinations of whether evidence is new and whether it is material are governed by the tests set forth in 38 C.F.R. § 3.156(a); new and material evidence means 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) (1999); Fossie v. West 12 Vet. App. 1, 4 (1998); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence, which (1) was not in the record at the time of the final disallowance of the claim, and (2) is not merely cumulative of other evidence in the record. Smith v. West, 12 Vet. App. 312, 314 (1999); Evans v. Brown, 9 Vet. App. 273, 283 (1996). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability, even where it will not eventually convince the Board to alter its decision. See Hodge, supra at 1363. Recently in Elkins v. West, 12 Vet App. 209 (1999) the Court held that the recent decision of the Federal Circuit in Hodge, supra requires the replacement of the two-step Manio test with a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999); See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under the new Elkins test, VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Second, if new and material evidence has been presented, immediately upon reopening the claim the Board must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened 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. Winters, supra. 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); Duran v. Brown, 7 Vet. App. 216, 220 (1994). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Pursuant to 38 U.S.C.A. § 5107(a), 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. The Court has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). If a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. 38 C.F.R. § 3.303 (1999). Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well-grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. The veteran seeks to reopen his claim of service connection for a psychiatric disorder, which the RO denied in August 1995. When a claim is finally denied by the RO, the claim may not thereafter be reopened and allowed, unless new and material evidence has been presented. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104 (1999). When a veteran seeks to reopen a finally denied claim, the Board must review all of the evidence submitted since that action, to determine whether the claim should be reopened and readjudicated on a de novo basis. Glynn v. Brown, 6 Vet. App. 523, 529 (1994). The Court has defined new evidence as evidence, which was not in the record at the time of the final disallowance of the claim, and, is not merely cumulative of other evidence in the record. See Smith v. West 12Vet. App. 312, 314 (1999). New evidence is considered to be material where such evidence provides a more complete picture of the circumstances surrounding the origin of the veteran's injury or disability. See Hodge, supra at 1363. In the instant case, the Board finds that evidence has been submitted which was not in the record at the time of the final disallowance of the veteran's claim and such evidence is not redundant of evidence previously of record and it provides a more complete picture of the circumstances surrounding the origin of the veteran's claimed mental disability. This evidence consists of VA mental health clinic progress notes, service medical records, VA mental disorder examination and the veteran's personal statements and testimony. Since this evidence was not of record prior to the August 1995 finally denied claim, this evidence is neither duplicative nor cumulative, and therefore constitutes new evidence. Such evidence bears directly and substantially upon the specific issue being considered in this case. Moreover, it is probative as to whether continuity of symptomatology has been demonstrated since the veteran's diagnoses of acute psychotic episode and adjustment reaction to early adult life. Therefore, the evidence is significant and must be considered in order to fairly decide the merits of the claim. The Board notes that the veteran, regardless of the various diagnoses offered over the years to account for his psychiatric symptomatology, is in effect endeavoring to claim service connection for the same psychiatric symptomatology which was the subject of the previous denial, and accordingly is not stating a different claim on the basis of a different theory of entitlement. Ashford v. Brown, 10 Vet. App. 120 (1997); Ephraim v. Brown, 5 Vet. App. 549 (1993). The Board finds that new and material evidence has been received since the August 1995 final determination, and the veteran's claim is reopened. The second step of the three-step test in Elkins, supra, provides that if new and material evidence has been presented, immediately upon reopening the claim, the Board must determine whether the claim is well grounded. Whether the claim of entitlement to service connection for a psychiatric disorder is well grounded. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is plausible. 38 U.S.C.A. § 5107. Such a claim need not be conclusive, but only possible to satisfy the initial burden of § 5107(a). Murphy, supra at 81. A well- grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and a current disability. Caluza, supra at 506. The threshold question in this case is whether there is sufficient evidence to establish a nexus between a mental condition diagnosed within one year after service and the veteran's current diagnosis of bipolar affective disorder. The record contains evidence that the veteran received two distinct diagnoses regarding his mental condition with within one year of service. On one occasion the veteran was diagnosed with acute psychotic episode; and on another occasion he was diagnosed with adjustment reaction of early adult life. On his most recent VA examination, in October 1977, he was diagnosed with bipolar affective disorder. There is no objective medical evidence that adequately supports that the veteran had a chronic mental condition while in service or during the applicable presumption period that is linked to his current mental condition of bipolar affective disorder. In the absence of medical evidence of a nexus between a chronic mental condition in service or within the applicable presumption period and the veteran's current mental condition, his claim for entitlement to service connection for a psychiatric disorder is not well grounded. However, since a chronic mental condition was not shown in service or within the applicable presumption period, for the purpose of establishing a well grounded claim, the regulations permit the veteran to show evidence based on continuity of symptomatology if a condition is observed in an applicable presumption period and competent evidence relates the present condition to that symptomatology. See 38 C.F.R. § 3.303(b); see also Savage, supra at 498. The evidence does not demonstrate continuity of symptomatology with regard to the veteran's mental condition. Symptoms shown immediately following service, which warranted a diagnosis of acute psychotic episode and adjustment reaction of early adult life, are dissimilar to those currently shown on examination. The VA physician in September 1976 found no evidence of any sequelae from the veteran's previous hospitalization or any type of major emotional disturbance. The veteran reported having depressive symptomatology with auditory hallucinations in 1989 and 1991. The VA physician in October 1997 found no evidence of a formal thought disorder and indicated that the veteran currently has a mood disorder. On examination for re-enlistment in November 1983 and on examination in April 1987 for the purpose of enlistment in the Army National Guard, the veteran denied having any type of mental disorder and clinical evaluation found no psychiatric or neurologic abnormalities. Evidence of a possible link between any current mental condition to service or within an applicable presumption period is limited to the veteran's own assertions. In this instance, the veteran's own opinion and statements are not sufficient for linking his present mental condition to service. See Savage, supra at 494. While a lay person is competent to provide evidence on the occurrence of observable symptoms during and following service, such a lay person is not competent to make a medical diagnosis or render a medical opinion, which relates a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1991). The Board notes that the veteran stated that he was hospitalized in 1989 and 1991 primarily for depressive symptomatology. He also related, while hospitalized by VA in 1994, that he had been previously treated on an outpatient basis since his 1986 separation until three years prior to the current admission coinciding with his 1991 divorce. The records referable to these specific time periods are not on file; however, the RO already requested all records referable to treatment since 1986 and no such additional records were provided with the other substantial quantity of treatment reports already associated with the claims file. While the dates and locations of such hospitalizations were not specified by the veteran, all additional claimed treatment reports have been requested by the RO from VA facilities including the facility wherein the veteran claimed the additional inpatient and outpatient treatment. Inasmuch as the veteran has stated that the reason for such hospitalizations was for depressive symptoms, the Board finds that such medical evidence, even if obtainable, would not be necessary to fairly decide the veteran's claim as such evidence is not probative of the issue at hand. That is, such evidence if existent would not provide a link between the veteran's current mental condition and military service. In any event, exhaustive efforts have already been made to obtain all claimed records of treatment. Bell v. Derwinski, 2 Vet. App. 611 (1992). For the foregoing reasons, the veteran's claim for service connection for a psychiatric disorder is not well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is the claim is not plausible. Consequently his claim for entitlement to service connection for a psychiatric disorder must be denied. The Court has held that if the veteran fails to submit a well grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). As the veteran's claim for service connection for a psychiatric disorder is not well grounded, the doctrine of reasonable doubt has no application to his claim. The Board finds that the RO advised the veteran of the evidence necessary to establish a well grounded claim, and he has not indicated the existence of any post- service medical evidence that has not already been considered, requested or obtained that would well ground his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER The veteran having submitted new and material evidence to reopen a claim of entitlement to service connection, the appeal is granted to this extent. The veteran not having submitted a well-grounded claim of entitlement to service connection for a psychiatric disorder, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals