Citation Nr: 0002765 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 95-07 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: D.C. Daniel, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from June 1963 to February 1964. He had 81 days time lost resulting from absence without leave (AWOL) and subsequent disciplinary action. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which found that the veteran had not submitted new and material evidence to reopen his claim for service connection for an acquired psychiatric disorder. This case was previously before the Board in May 1997 when the Board determined that new and material evidence had not been submitted to reopen the claim for service connection for an acquired psychiatric disorder. The veteran appealed to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In February 1999, the Court vacated the Board's decision because of recent court decisions which changed the manner in which VA was to review claims involving the submission of "new and material evidence." In January 1997, a hearing was held before Bettina S. Callaway, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). FINDINGS OF FACT 1. Following a decision by the Board in October 1991 which found that new and material evidence had not been submitted to reopen a claim of service connection for an acquired psychiatric disorder, the veteran appealed to the Court which affirmed the Board's decision in an October 1993 decision. 2. Evidence has been received since the October 1991 decision of the Board which is relevant to or probative of whether the veteran's acquired psychiatric disorder was incurred in or aggravated during the veteran's active military service from June 1963 to February 1964, or present to a compensable degree within the first post service year. 3. There is medical evidence of record indicating that the veteran has an acquired psychiatric disorder related to military service that provides a more complete picture of the circumstances surrounding the origin of the alleged psychiatric disability. 4. The veteran's claim to service connection for an acquired psychiatric disorder is plausible. CONCLUSIONS OF LAW 1. The October 1991 decision of the Board denying service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7103 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. Evidence received since the October 1991 Board decision denying the veteran's claim for service connection for acquired psychiatric disorder is new and material, and the appellant's claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran's reopened claim for service connection for an acquired psychiatric disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995) aff'd per curiam, 78 F3d 604 (Fed. Cir. 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection and the Requirement of Submitting a Well Grounded Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Certain diseases, including a psychosis, may be presumed to have been incurred during active military service if manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b) (1999). The law provides that "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). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service-connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1997); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Lay evidence is also acceptable to show incurrence in service if the veteran was engaged in combat and the evidence is consistent with the circumstances, conditions and hardships of such service, even though there is no official record of such incurrence. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1999). Reopening the Claim Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C.A. § 5108 (West 1991); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). When considering whether new and material evidence has been presented or secured to reopen a claim, the law provides, 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). In Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), the Court provided a standard, adopted from a district court decision pertaining to social security benefits, for determining whether evidence submitted by a claimant was "new and material". See Chisholm v. Secretary of Health & Human Services, 717 F. Supp. 366, 367 (W.D. Pa. 1989). Although a definition of new and material evidence at that time recently had been promulgated by VA, the Court stated that the VA regulation was not "inconsistent" with the standard articulated in Chisholm and that the standard in Chisholm was "clearer and more easily applied". Colvin, 1 Vet. App. at 174. In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Court overstepped its judicial authority in failing to defer to the interpretation of the term "new and material" set forth by VA in its own regulation and adopting instead "a definition of materiality from an entirely different benefits scheme -- the administration of social security benefits." Hodge v. West, 155 F.3d 1356 (1998); 38 C.F.R. § 3.156(a) (1999). Therefore, the Federal Circuit overruled the Colvin test for the purposes of reopening claims for the award of veterans' benefits. Hodge, at 1361. The standard adopted by the Court in Colvin, and more fully defined and explained in subsequent decisions of the Court, requires the Board to perform a two-step analysis when a veteran seeks to reopen a final decision based on new and material evidence. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the last final disallowance is "new and material." Ibid; see also Edenfield v. Brown, 8 Vet. App. 384, 389-90 (1995) (en banc) (holding that a denial on the merits and a determination that a claim is not well grounded both constitute a "disallowance" of a claim). If it is, the Board must then reopen the claim and review the new evidence "in the context of" the old to determine whether the prior disposition of the claim should be altered. Manio, 1 Vet. App. at 145; Jones v. Derwinski, 1 Vet. App. 210, 215 (1991). The Court has held that step one of the Manio two-step process, the determination of whether the evidence is new and material, involves three questions. Evans v. Brown, 9 Vet. App. 273, 283 (1996). The first question is whether the newly presented evidence is actually "new" in the sense that it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of other evidence of record. Ibid.; Struck v. Brown, 9 Vet. App. 145, 151 (1996). The second question is whether the evidence is "probative" of the "issue at hand." Evans, 9 Vet. App. at 283. Evidence is "probative" when it "tend[s] to prove, or actually prov[es] an issue." See Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing BLACK'S LAW DICTIONARY 1203 (6th ed. 1990). Determining what the "issue at hand" in a case is depends on the specified basis or bases for the last disallowance of the claim. Evans, 9 Vet. App. at 284. The third question is whether, in light of all of the evidence of record, there is a reasonable possibility that the outcome of the claim on the merits would be changed. Dolan v. Brown, 9 Vet. App. 358, 361 (1996); Evans, 9 Vet. App. at 283. Affirmative answers to both "materiality" questions are required in order for "new" evidence to be "material." Ibid.; Blackburn v. Brown, 8 Vet. App. 97, 102 (1995). As to those two "materiality" components, the evidence is presumed credible for the purpose of determining whether the case should be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Section 3.156(a) provides, 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 (1999) (final emphasis added). After reviewing the portion of the regulation emphasized above and considering the portion of the Colvin test requiring that "there must be reasonable possibility that that new evidence . . . would change the outcome" of the prior final decision in order to be considered "material" evidence, the Federal Circuit stated, There is no indication that the test for materiality adopted by the Secretary was similarly intended to focus on whether the new evidence will affect the outcome of the ratings decision. Although the regulation does require that the new evidence be "so significant that it must be considered in order to fairly decide the merits of the claim," 38 C.F.R. § 3.156(a), it is not clear to what extent this addresses the final ratings decision rather than emphasizes the importance of ensuring that the evidentiary record is complete before a ratings decision is made. Hodge, 155 F.3d at 1363. The Federal Circuit considered an explanation that had accompanied the proposed regulatory amendment which added the definition in section 3.156(a) and concluded, This passage suggests that the purpose behind the definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather, it emphasizes the importance of a complete record for evaluation of a veteran's claim. Hodge, 155 F.3d at 1363. The Federal Circuit also stated, We certainly agree with the Court of Veterans Appeals that not every piece of new evidence is "material"; we are concerned, however, that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability. Hodge, 155 F.3d at 1363. If the newly presented evidence is not "new", the claim to reopen fails on that basis and no further analysis of the evidence is required. Similarly, if "new" evidence is not "material" in the sense that it is not relevant to and probative of the "issue at hand," the claim to reopen fails on that basis and the inquiry ends. See Evans, at 286 (holding that "new" evidence was not relevant to and probative of a nexus between the claimed psychiatric disorder and an inservice injury or disease which was the "issue at hand" in the case, and therefore the "new" evidence was not "material" evidence and the inquiry ended, notwithstanding "old" evidence in the record pertaining to a nexus between the veteran's psychiatric disorder and his military service). Factual Background In this case, the RO originally denied service connection for a nervous condition in a January 1967 rating decision, noting that service records were negative for any evidence of a nervous condition in service. This decision was confirmed by a Board decision in February 1968. Thereafter, the veteran attempted to reopen his claim in November 1989, which was denied in a January 1990 rating decision. This decision was also appealed to the Board which found in a July 1990 decision that "[e]vidence received subsequent to the February 1968 decision . . . is new and material, but does not alter the basis upon which the prior decision was predicated." The veteran again attempted to reopen his claim with the submission of medical evidence in the form of letters from his physician, Paul C. Estes, M.D. These letters attempted to link a current psychiatric disorder to his active service, and stated that the veteran had been treated for this condition within one year of release from service. Following a field examination conducted in an attempt to verify the veteran's claim through the actual records of treatment, the RO denied the claim in a March 1991 decision. The basis for that decision was that Dr. Estes' statement that he had treated the veteran in the one year following service was apparently based on his own recollection, and not the medical records of treatment, which failed to verify any treatment for more than 20 years following active service. Dr. Estes' records were no longer available and his home address was unknown. This decision was also appealed to the Board. In October 1991, the Board decided that although the information was new, it was not material. The Board's decision contained the following: After having carefully considered the additional evidence, the Board believes that Dr. Estes' two letters, although new, are not material. The only portion of these two brief letters which is pertinent to the issue at hand is an unsubstantiated statement to the effect that the appellant's current psychiatric disorder is related to his military service. No reasons were given for this statement. . . . Dr. Estes did not even give a current diagnosis [and] the evidence indicates that [he] did not see the appellant until over 20 years after service. In short, the letters cannot be considered to be probative of the issue at hand. . . . The Board declined to reopen the claim. The veteran appealed this decision to the Court which affirmed the Board's decision in October 1993. The Board observes that the last final disallowance of the veteran's claim is the October 1991 Board decision, and the Board will determine whether evidence submitted since that disallowance constitutes new and material evidence. Since the October 1991 Board decision, the veteran has submitted the following as new and material evidence: (1) his contentions contained in claims made to the RO, and during his personal hearings before the RO in September 1994, and before the undersigned member of the Board in January 1997, (Item One), (2) a letter dated July 1992 from Paul C. Estes, M.D., (Item Two), (3) records of VA outpatient treatment from August 1993 through September 1994 (Item Three), (4) copies of the veteran's service records including service medical records, a record of a court martial proceeding, service personnel records, and his discharge papers (Item Four), and (5) a letter from Stephen H. Dill, M.D., dated October 1994 (Item Five). Analysis The July 1992 letter from Paul C. Estes, M.D., Item Two, is new because it was not before the Board in October 1991 when the veteran's claim to reopen was denied. This letter states in part that he began treating the veteran in February 1987 primarily for a psychological problem previously diagnosed as hysteria with depression and later diagnosed as schizophrenia, chronic undifferentiated type. He writes: I obtained the history that his condition began or was aggravated by his tenure in the service. . . . A review of the court transcripts on this date show, in my medical opinion, a relationship and correlation of this discharge diagnosis of hysteria with his later diagnosis of schizophrenia. This statement is material because it is relevant to the issue of whether the veteran has an acquired psychiatric disorder related to his active service, and because it contributes "to a more complete picture of the circumstances surrounding the existence of a current disability." See Hodge, 155 F.3d 1356 (1998). The Board concludes that the additional evidence submitted in support of the veteran's claim is new and material evidence sufficient to reopen the claim for service connection for an acquired psychiatric disorder. Thus, the Board reopens the claim for service connection for an acquired psychiatric disorder. Having reopened the claim, the Board must now determine whether the claim is well grounded. Elkins v. West, 12 Vet. App. 209 (1999) (en banc). In Elkins, the Court held that , if new and material evidence has been presented, immediately upon reopening the claim VA must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); 38 U.S.C.A. § 1110 (West 1991). The veteran claims that he has a psychiatric disorder which was caused or aggravated by his active service. There is objective medical evidence indicating that a current acquired psychiatric disorder is related to symptoms shown during his active service. Although there is conflicting evidence in the file as to the facts of this case, assuming the credibility of this evidence, the Board finds that the claim is well grounded. ORDER New and material evidence having been submitted, the veteran's claim for entitlement to service connection for an acquired psychiatric disorder is reopened. The veteran's claim for entitlement to service connection for an acquired psychiatric disorder is well grounded and, to this extent, the appeal is allowed. REMAND Although the July 1992 letter from Dr. Estes provided the basis for reopening the veteran's claim, indicating that he had been treating the veteran for schizophrenia, and indicating that this was related to his diagnosis of hysteria during service, the Board cannot determine the basis for Dr. Estes opinion as his letter states that he began treating the veteran in February 1987, some 23 years following the veteran's discharge from active service. Dr. Estes appears to base his medical opinion on only a partial examination of the medical records, consisting of only those records which were part of the court transcripts. Because Dr. Estes provided a home address in his correspondence dated in 1992, the RO should attempt to contact him for further information. The Board is unable to determine from the medical evidence whether the veteran currently has a psychiatric disorder, and, if so, whether such psychiatric disorder is causally related to his active service. A clear medical diagnosis of a current disability is an absolute prerequisite to a well- grounded claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (absent "proof of a present disability there can be no claim"). See also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)(wherein the United States Court of Appeals for the Federal Circuit recognized as "rational" VA's long- standing requirement that service connection be granted only in cases of currently existing disability, even where not specifically required by statute). The United States Court of Appeals for Veterans Claims has also held, that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). The veteran should be afforded the appropriate VA examination to determine whether he has any current psychiatric disorder, and if so whether this is related to his active service. For the reasons noted above and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should attempt to contact Paul C. Estes, M.D., at the address noted on his correspondence dated July 27, 1992, as "506 Bluebell, Murfreesboro, TN 37129. If the physician is located, he should be queried as to the medical basis for his opinion, stated in that correspondence, that the veteran has schizophrenia that is related to hysteria noted in service over 20 years before Dr. Estes first saw the veteran as a patient. Dr. Estes' comments should be associated with the claims folder. 2. The RO should schedule the veteran for a VA examination by a specialist in psychiatry. All necessary tests are to be conducted. The claims file and a copy of this REMAND must be made available to and reviewed by the examiner prior to the requested examinations. The examination should include a complete diagnosis of the veteran's psychiatric disorder or disorders. After a review of the record, particularly the service medical records and the report from Paul C. Estes, M. D., the examiner is requested to comment as to whether any currently-shown psychiatric disorder is etiologically related to symptoms manifested during the veteran's active service or to any other incident of service. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Abernathy v. Principi, 3 Vet. App. 461, 464 (1992); and Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 4. The RO should then ensure that the above-specified actions have been completed. Any deficiency must be returned to the appropriate office until full compliance with this REMAND is achieved. Next, the RO should readjudicate the veteran's claim for service connection for an acquired psychiatric disorder. Once the foregoing has been accomplished and, if the veteran remains dissatisfied with the outcome of the adjudication of the claim, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is to assist the veteran and to obtain clarifying information. The Board intimates no opinion as to the ultimate outcome of this case. Further adjudication of the question involving service connection for an acquired psychiatric disorder will be postponed until the remand action is completed. The appellant has the right to submit additional evidence and argument on the matter or matters that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals