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