Citation Nr: 0004517 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 98-02 112 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Whether new and material evidence has been submitted to reopen the claim of service connection for an innocently acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran had active military service from March 1944 to December 1945. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a October 1997 rating decision by the RO. FINDINGS OF FACT 1. New evidence, which bears directly and substantially on the veteran's claim of service connection for a psychiatric disorder and is so significant that it must be considered to fairly decide the merits of the claim, has been presented following the final Board decision in May 1961. 2. The veteran's claim of service connection for an innocently acquired psychiatric disorder is plausible. CONCLUSIONS OF LAW 1. New and material evidence has been submitted to reopen the veteran's claim of service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. §§ 1101, 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). 2. The veteran has present evidence of a well-grounded claim of service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A. §§ 1101, 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 1959, the veteran submitted his original claim of service connection for a psychiatric disorder. In a June 1960 decision, the Board denied service connection for a psychophysiological cardiovascular reaction. It was noted that the veteran's service medical records indicated that he complained of nervousness on several occasions. In a May 1961 decision, the Board denied the veteran's claim of service connection for a neuropsychiatric disorder on the basis that there was no evidence of a neuropsychiatric disorder in service. The Board considered the service medical records which were negative for a psychiatric disorder, a physician's statement that he treated the veteran in 1946 and 1947 for nervousness, and the statements of several physicians who stated that they had treated the veteran for nervousness since 1951. In October 1997, the veteran again claimed service connection for a psychiatric disorder. In an October 1997 decision, the RO denied the veteran's reopened claim on the basis that the veteran had not submitted evidence material to the issue of whether the veteran's psychiatric disorder began in service. The RO considered the veteran's statements and testimony, medical records noting current treatment for anxiety and a letter from Oscar F. Lovelace, Jr., M.D., opining that the veteran's anxiety began in service. Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated by active service that is not the result of the veteran's own willful misconduct. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. A final decision of the Board may not be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104(b). Therefore, once a Board decision becomes final, the Board does not have jurisdiction to consider the previously adjudicated claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board must perform a two-step analysis when the veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the evidence is "new and material." Second, if the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must evaluate the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board is required to review all of the evidence submitted by an appellant since the last final denial of a claim on any basis, to include decisions by the RO or the Board which had refused, after having considered newly presented evidence, to reopen a previously disallowed claim because of a lack of new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). 38 C.F.R. § 3.156(a) provides that "new and material evidence" is 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of determining whether the evidence is new and material, the credibility of the evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In connection with the efforts to reopen his claim, the veteran has presented a letter from Dr. Lovelace opining that the veteran's anxiety began in service. This evidence is material. See Hodge, supra. The Board finds that this new evidence is so significant regarding the issue of whether the veteran's psychiatric disorder was incurred in service that it must be considered to decide fairly the merits of the claim. Id. Thus, the claim is reopened. The process for reopening claims under the Federal Circuit's holding in Hodge, consists of three steps: the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary 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.A. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Elkins v. West, 12 Vet. App. 209 (1999). With regard to the second step under Elkins, the Board must address whether the appellant has presented a well-grounded claim. A claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well- grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The threshold question regarding this issue is whether the veteran has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not, the claims must fail and there is no further duty to assist in the development of the claims. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). For a claim to be well grounded, there must be competent evidence of a current disability (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). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The evidentiary assertions by the veteran must be accepted as true 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 person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The evidence currently before the Board includes medical evidence from a physician opining that the veteran's psychiatric disorder began in service. Hence, the veteran's claim meets the requirements set forth in Caluza. Accordingly, the Board finds the veteran has presented a well-grounded claim of service connection for an innocently acquired psychiatric disorder. ORDER As the reopened claim of service connection for a psychiatric disorder is well grounded, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND The Board notes that, since the veteran has been found to have submitted a well-grounded claim, VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a). The RO should afford the veteran a VA psychiatric examination to determine whether he has an innocently acquired psychiatric disability due to disease or injury which was incurred in or aggravated by service. Moreover, the RO should obtain any additional ongoing treatment records pertinent to this claim. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Under the circumstances in this case, further development and assistance are required. Thus, this case is REMANDED to the RO for the following actions: 1. The RO should take appropriate steps to contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his psychiatric disorder since 1998. After securing the necessary release, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request and associate them with the claims folder. 3. The veteran should be afforded a VA psychiatric examination to determine the nature and likely etiology of his claimed psychiatric disorder. All indicated tests should be undertaken. The examiner should report detailed clinical findings in connection with the evaluation. The examiner also should elicit from the veteran and record a full medical history in this regard. Based on his/her review of the case, the examiner should render an opinion as to the likelihood that the veteran has an innocently acquired psychiatric disability due to disease or injury which was incurred in or aggravated by service. The claims folder should be made available to the examiner prior to the examination. 4. Following completion of the development requested hereinabove, the RO should again review the veteran's claim. If any benefit sought on appeal is not granted to the veteran's satisfaction, then he and his representative should be issued a Supplemental Statement of the Case and afforded a reasonable opportunity to reply thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The veteran 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals