Citation Nr: 0811290 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-19 950 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for schizophrenia; and if so, whether the claim may be granted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from May 1993 to February 1994. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in April 2005 and May 2006. This matter was originally on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in New Orleans, Louisiana. The issue of entitlement to service connection for schizophrenia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A claim for service connection for a mental condition diagnosed as schizophrenia was denied by an October 1998 rating decision that was not appealed. 2. Evidence submitted subsequent to the October 1998 rating decision is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1998 rating decision which denied a claim for service connection for a mental condition diagnosed as schizophrenia is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. New and material evidence has been submitted since the October 1998 rating decision, and the claim of entitlement to service connection for schizophrenia is reopened. 38 U.S.C.A. §§ 5108 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Pursuant to the Board's April 2005 and May 2006 Remands, the AMC obtained treatment records from VAMC in New Orleans from 1994 and 1995, as well as VA treatment records from June 2002 to August 2005, including hospitalization in December 2005, and readjudicated the veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). Based on the foregoing actions, the Board finds that there has been compliance with the Board's April 2005 and May 2006 Remands. Stegall v. West, 11 Vet. App. 268 (1998). II. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Initially, the Board observes that in light of the favorable outcome of this appeal with respect to the issue of whether new and material evidence has been submitted to reopen the claim, any perceived lack of notice or development under the VCAA should not be considered prejudicial. To that end, the Board notes that it is expected that when the claim is returned to the RO for further development and reviewed on the basis of the additional evidence, the RO will properly conduct all necessary VCAA notice and development in accordance with its review of the underlying claim. III. New and Material Evidence In a decision dated in October 1998, the RO denied the veteran's claims for service connection for a mental condition diagnosed as schizophrenia. The veteran did not timely appeal this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). Thus, the October 1998 decision is final. The veteran's application to reopen his claim of service connection for chronic paranoid schizophrenia was received in April 2002. The Board notes that there has been a regulatory change with respect to the definition of new and material evidence, which applies prospectively to all claims made on or after August 29, 2001. As the veteran filed his claim after this date, the new version (cited below) applies in this case. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board notes that by a July 2002 rating decision, the RO declined to reopen the veteran's claim of entitlement to service connection for schizophrenia. However, the Statement of the Case (SOC) issued in May 2003 noted that the claim for service connection for schizophrenia was considered reopened and subsequent Supplemental Statements of the Case (SSOCs) noted that new and material evidence sufficient to reopen a claim of entitlement to service connection of paranoid schizophrenia had not been submitted. On appeal, however, the Board must make its own determination as to whether any newly submitted evidence warrants a reopening of the claims. This is important because the preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claims on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The October 1998 rating decision noted that the evidence of record failed to establish any relationship between the veteran's mental condition diagnosed as schizophrenia and his service-connected disability, atrophy of the left testicle. In addition, a September 1998 rating decision noted that although service connection may be presumed for a psychosis if the condition was manifested to a compensable degree within a year of discharge from service, no evidence of that kind was of record. Based on the grounds stated for the denial of service connection for schizophrenia in the October 1998 rating decision, new and material evidence would consist of evidence that the veteran's schizophrenia was manifested to a compensable degree within a year of discharge from service, was related to his military service, or was related to a service-connected disability. In this regard, additional evidence received since the October 1998 rating decision includes various VA treatment records dated in 1994 and 1995 as well as VA treatment records from June 2002 to August 2005. In regard to the evidence submitted since the October 1998 rating decision, the Board finds the newly obtained VA medical records are neither cumulative nor redundant. Further, the evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. VA treatment records include a July 1995 medical certificate which indicates that the veteran presented with complaints of uncontrollable outbursts of anger and rage and the need to lash out at people. In addition, the veteran stated that he was placed on Xanax, an anti-anxiety medication, by a private physician but indicated that the Xanax did not help. The veteran reported that he had been hearing voices for the past three weeks and bad dreams off and on for years. After mental status examination, the impression was schizophrenia, r/o psychosis NOS disorder, r/o impulse disorder, r/o bipolar disorder. The veteran was referred to mental health intake. An August 2, 1995 social working note which stated that the veteran presented with problems of recurrent nightmares, trouble sleeping and anxiety. It was also reported that the veteran had been violent with family in past, holding them hostage, attacking his fiancé, and reporting a rage that he didn't understand. An August 2, 1995 psychiatric evaluation indicated that the veteran ran out of medicines three days prior and woke up from a dream choking his fiancé. The veteran reported hearing voices for less than six months. Mental status examination noted auditory hallucinations "calling his name, laughing, and telling him to do all bad" as well as visual hallucinations. At the neurology consult requested in August 1995, the veteran stated that the for past six months he had been hearing voices calling his name and for 18 months he had going into episodes of uncontrolled rage and having bad dreams. The veteran reported that he awoke choking his fiancé (episode happened four times). Lay statements are competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). Although there is no indication exactly which symptoms reported on the July 1995 VA medical certificate contributed to the diagnosis of schizophrenia, since a diagnosis was rendered with symptoms reported as early as 18 months prior, during his period of service, the Board finds that the evidence raises a possibility of substantiating his claim for service connection. ORDER New and material evidence having been submitted, the claim for service connection for schizophrenia is reopened, to this extent only the appeal is granted. REMAND As the Board has granted the veteran's request to reopen his previously denied claim of service connection for schizophrenia, a remand of the underlying service connection claim is necessary. Initially, the Board notes that the July 1995 medical certificate noted that the veteran was prescribed Xanax by a private physician. It would be helpful if the veteran could identify that private physician and provide an address and authorization so that VA can obtain the medical records. In addition, the veteran should be asked to provide where he has been receiving psychiatric treatment since January 2006 so that VA can obtain these records. In order to afford the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that a medical opinion in conjunction with the review of the entire record and examination of the veteran is warranted to determine the date of onset of the veteran's schizophrenia. Accordingly, the case is REMANDED for the following action: 1. The veteran should be asked to identify (and provide releases for records from) all sources of private treatment he received for any psychiatric problems from February 1994 to July 1995. The veteran should also be asked to identify all sources of VA treatment he has received since January 2006. These records should be obtained from all identified sources and associated with the claims file. 2. The veteran should be afforded the appropriate VA psychiatric examination. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should render an opinion whether it is at least as likely as not that schizophrenia developed during service or within one year of his discharge from active duty. In offering these assessments, the examiner must comment on the veteran's report regarding the onset of psychiatric symptoms in post-service medical records. The rationale for all opinions expressed should be provided. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. After ensuring that any actions needed to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ K. M. MORGAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs