Citation Nr: 0000184 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-05 128 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Whether new and material evidence has been presented to reopen a claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. J. McCafferty, Counsel INTRODUCTION The veteran had active service from August 1982 to August 1986. Service medical records show a diagnosis of adjustment disorder with explosive features in February 1986. Service medical records are negative as to any diagnosis of a chronic psychiatric disorder during service. In June 1989, the veteran filed his original claim for service connection for schizoaffective illness indicating treatment in service, but with a definitive diagnosis not made until May 1988. A rating action in February 1990 denied service connection for schizoaffective disorder. The veteran was advised of the denial in March 1990, but he did not appeal and that decision became final. The veteran attempted to reopen his claim for service connection in 1994. He also raised the issue of clear and unmistakable error (CUE) in the February 1990 rating action's denial of service connection for a schizoaffective disorder. These issues were developed for appellate review and in a decision of February 1997, the Board found that new and material evidence to reopen the claim for service connection for schizoaffective disorder had not been submitted and that there was no CUE in the February 1990 rating action denying service connection for a schizoaffective disorder In May 1997, the veteran again attempted to reopen his claim for service connection for schizoaffective disorder with submission of a medical opinion from his treating psychiatrist. A rating action in April 1995 found that new and material evidence had not been submitted. The veteran disagreed and the current appeal ensued. FINDINGS OF FACT 1. The veteran's claim for service connection for an acquired psychiatric disorder was last denied by the Board in a decision in February 1997. 2. The evidence pertaining to an acquired psychiatric disorder, which has been presented since February 1997, is so significant that it must be considered in order to fairly decide the merits of the claim; the new evidence includes a psychiatrist's opinion relating the veteran's current acquired psychiatric disorder to service. CONCLUSIONS OF LAW 1. The February 1997 Board decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (1999). 2. Additional evidence presented since February 1997 is new and material, and the veteran's claim for entitlement to 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 claim for service connection for an acquired psychiatric disorder is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that the RO made a mistake by failing to reopen and allow his claim for service connection for a psychiatric disorder. He argues that he developed a nervous disorder in service, and that while this disorder had its inception during service, it was not definitively diagnosed until after his release from service. Factual Background. The veteran's claim for service connection for an acquired psychiatric disorder, schizoaffective disorder, was originally denied by final rating action in February 1990. The veteran's previous attempt to reopen this claim was denied by Board decision in February 1997. The evidence which was of record at the time of the Board's 1997 decision included the veteran's service medical records. Records that did not contain any references to a chronic psychiatric disorder, although an adjustment disorder was identified during service. Post service medical records reveal that the first showing of a chronic psychiatric disorder was not until 1988, more than one year after the veteran's discharge from service. The psychiatric disorder identified in 1988 was not shown to be related to service. Based on the evidentiary record, the Board found that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a schizoaffective disorder. In May 1997, the veteran again attempted to reopen his claim for service connection for schizoaffective disorder. In support of his claim to reopen he submitted an April 1997 medical opinion from his treating psychiatrist, Dr. Mark A. Burns, who noted that he had reviewed service medical records as well as post-service medical records. Based upon his review of these records, as well as his care of the veteran for a number of years, Dr. Burns offered his opinion that the veteran's psychiatric symptomatology in service was a prodromal sign of the veteran's current schizoaffective disorder. The veteran's attempt to reopen his claim was denied by rating action in December 1997 based, in part, on a finding that there was no reasonable possibility that the outcome of the claim on the merits would be changed by the evidence submitted. Laws and Regulations. Generally, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131. If a chronic disorder such as a psychosis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). When the Board disallows a claim, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered, unless new and material evidence is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. 20.1100 (1999). In order to reopen a claim which was denied previously, a claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 1991). "New and material evidence" means evidence not previously submitted to the agency decision makers which bears directly and substantially on 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 to fairly decide the merits of the claim. See 38 C.F.R. § 3.156. When determining whether new and material evidence has been presented to reopen a claim, VA considers the evidence presented since the most recent decision in which the claim was denied on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). In the present case, the most recent decision which denied the appellant's claim is the Board's February 1997 decision. In determining whether evidence is "new and material" the Board must consider whether the additional evidence is "new," that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. The Board must also consider whether the additional evidence is it probative of the issue at hand. A third consideration, that is, whether the additional evidence presents a reasonable possibility of changing the outcome of the claim on the merits, has been invalidated, and cannot, therefore, be applied in the present case. See Hodge v. West, 155 F. 3d 1356 (Fed Cir 1998). The U.S. Court of Appeals for Veterans Claims has concluded that Hodge provides for a reopening standard which call for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Fossie v. West, 12 Vet. App. 1 (1998). Analysis. As noted above, the criteria for determining whether new and material evidence has been submitted was changed by Hodge. However, the 1997 determination made by the RO in the present case was based on the law as it existed prior to Hodge. The RO's determination was based, in part, on the standard that there was no reasonable possibility that the outcome of the claim on the merits would be changed by the evidence submitted, rather than the less stringent standard that the evidence submitted is so significant that it must be considered to fairly decide the merits of the claim. In this case, the additional evidence presented since February 1997 includes the veteran's reiteration of his previously considered contentions concerning the nature of his psychiatric problems during service and their relationship to his current schizoaffective disorder. These contentions were considered previously by the Board. However, the additional evidence also includes an opinion from the veteran's treating psychiatrist to the effect that the veteran's psychiatric symptoms in service represented the prodromal stage of the veteran's current schizoaffective disorder. Significantly, this opinion was based in part upon review of the service medical records. The Board finds that the submissions from the psychiatrist, particularly his opinion of April 1997, provide support for the claim for service connection for a schizoaffective disorder. This material bears directly and substantially on the specific matter at issue. Further, the evidence presented is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 and Hodge. Accordingly, the Board concludes that the additional evidence presented since the Board's February 1997 decision is new and material, and the claim for service connection for a schizoaffective disorder has been reopened. The Board also finds that the claim is well grounded, particularly in view of the opinion from the treating psychiatrist relating the onset of the veteran's current schizoaffective disorder to his psychiatric symptomatology in service. ORDER The claim for service connection for a schizoaffective disorder is reopened and is well grounded. To this extent only, the appeal as to this issue is granted. REMAND VA has a duty to assist an appellant with a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). The current record contains psychiatric treatment records from 1992 to October 1997 previously furnished by Dr. Burns. The doctor's post 1997 treatment records may also be relevant to the veteran's reopened claim for service connection for a schizoaffective disorder and the RO should attempt to obtain such records with the assistance of the veteran. The current record also raises a medical question concerning the nature of any relationship between the veteran's service symptomatology and his schizoaffective disorder. A question that needs further consideration. Accordingly, the case is being remanded for the following development: 1. The veteran should be asked to identify any psychiatric treatment he received from Dr. Burns or any other provider since October 1997. He should also be asked to provide the appropriate release forms for any treatment identified so that the records may be obtained and added to the claims folder. 2. After the development requested above has been completed to the extent possible, along with any additional development deemed necessary by the RO, the veteran's claims folder should be furnished to an appropriate specialist and the specialist should be requested to review the record and furnish an opinion as to the relationship, if any, between the veteran's service symptomatology and his schizoaffective disorder or any other psychiatric disorder currently found present by the reviewer. The reviewer should offer an opinion as to the degree of probability that any psychiatric disorder currently present is related to the veteran's period of service. If the reviewer feels that additional examina- tion or testing is needed prior to rendering the requested opinion, then such should be scheduled and conducted. 3. Thereafter, the RO should review the requested opinion to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. 4. After undertaking any development deemed appropriate in addition to that specified above, the RO should review and adjudicate the veteran's claim for service connection for schizoaffective disorder in light of the entire record to include any evidence added to the record as a result of this remand. If the RO's decision is adverse to the veteran, then the veteran and his representative should be furnished a supplemental statement of the case covering the new evidence and given an opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. GARY L. GICK Member, Board of Veterans' Appeals