Citation Nr: 0812743 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-07 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, diagnosed as schizophrenia. 2. Whether new and material evidence has been received to reopen a claim of service connection for a back disorder. ATTORNEY FOR THE BOARD A. Roth, Associate Counsel INTRODUCTION The veteran served on active duty from November 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. During the pendency of this appeal, the veteran moved to Houston, Texas and reported such in a March 2007 communication. Accordingly, the RO in Houston, Texas currently has jurisdiction over the case. The veteran's psychiatric disability and back disability claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. By decision dated in March 1982, the Board denied the veteran's claim of service connection for an acquired psychiatric disorder; in January 1986 and again in June 1990, the Board denied an application to reopen the same claim, the veteran did not appeal the June 1990 determination, and that decision became final. 2. The evidence received since the June 1990 Board decision is not duplicative or cumulative of evidence previously of record, and raises a reasonable possibility of substantiating the veteran's schizophrenia claim. CONCLUSIONS OF LAW 1. The Board's unappealed June 1990 decision that denied his claim to reopen service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7103(a) (West 2002); 38 C.F.R. § 20.1100 (2007). 2. Evidence received since the June 1990 Board decision is new and material; the claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the veteran's claim for a psychiatric disorder and remands it for further development. Thus, a discussion of VA's duties to notify and assist is not necessary regarding this claim. In a June 1990 Board decision, while noting that service connection for an acquired psychiatric disorder had previously been denied, the Board determined that there was no new and material evidence submitted that demonstrated his current psychiatric pathology had origins during his period of service. In denying his application to reopen service connection claim, the Board acknowledged that the veteran was seen during service for complaints of nervousness, but denied the claim on the basis that there was no medical evidence of an acquired psychiatric disorder that was related to service. The evidence of record at the time of the June 1990 Board decision consisted of his service medical records; post- service medical records and examinations; and lay statements from the veteran, fellow servicemen, and family and friends. Because the veteran did not appeal the June 1990 Board decision, it became final based on the evidence then of record. 38 U.S.C.A. § 7103(a) (West 2002). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decisionmakers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When determining whether a veteran has submitted new and material evidence sufficient to reopen a claim, VA must consider the evidence received since the last final denial of the claim on any basis, i.e., on the merits or denying reopening. See Evans v. Brown, 9 Vet. App. 273 (1996). Evidence associated with the claims folder since the Board's June 1990 decision consists of a VA examination; VA medical records; a private medical report; and lay statements from the veteran and his friends and family members. The veteran has maintained that service connection is warranted for schizophrenia because he developed the disease during service. In support, he states that he had psychiatric problems during service and that he began manifesting psychiatric symptoms within a few months of his discharge. In point of fact, his VA treatment records from June 1980, four months after discharge, indicate that he was diagnosed with anxiety and depressive neurosis. Further, he points out that he has since been consistently diagnosed as having schizophrenia. Additionally, lay statements submitted by his family and friends reflect that his mental condition has "deteriorated" since his period of active duty service. Of particular significance is a November 2005 VA examination report. In this report, the examiner concluded that the veteran's current schizophrenia is not due to, caused by, nor related to his military service; however he then stated that due to the described symptomatology soon after military service, his schizophrenia must have been present prior to military service. This statement appears to raise the issue of whether the veteran had a pre-existing condition that was aggravated by his period of active service. Additionally, a private medical opinion was also submitted that concluded his psychiatric conditions of major depression, post traumatic stress disorder, and generalized anxiety disorder are related to his service in the military. In light of these medical reports and opinions, the Boards finds that the evidence raises a reasonable possibility of substantiating his claim. As such, the evidence is new and material under the provisions of 38 C.F.R. § 3.156(a) and the claim is reopened. ORDER New and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, has been presented; to this extent, the appeal is granted. REMAND As noted above, the veteran was diagnosed as having anxiety and depressive neurosis approximately five months after his discharge from active duty and with schizophrenia within a year of separation from service. Further, service medical records, treatment records, and evaluation reports show that the veteran reported having psychiatric symptoms during and shortly after service. The veteran has since consistently been diagnosed as having schizophrenia. The November 2005 VA examination afforded to the veteran provided a medical opinion that stated both that his current schizophrenia is unrelated to active duty service and also that it pre-existed service without providing a clear reason or rationale for such a conclusion. Specifically, while this opinion raised the issue of whether his schizophrenia was aggravated by service, it did not address it any further. Additionally, the claims file also contains a positive February 2005 medical opinion provided by his private physician. Therefore, a solicited a medical opinion is needed as to whether it is at least as likely as not that his schizophrenia had its onset during service or before service, and if so, whether it was aggravated by service. Under the circumstances, the Board finds VA must obtain medical evidence addressing these questions because doing so is necessary to adjudicate his appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, lay statements from friends and family of the veteran indicate that the veteran receives social security benefits due his mental disability. As such, VA is obliged to attempt to obtain and consider any SSA records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2006); see also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to his additional claim to reopen to service connection for a back disorder, an March 1982 Board decision denied entitlement to service connection for a back disorder. More recently, his application to reopen his service connection claim for a back disorder was last denied in a January 1986 Board decision. The Board observes that, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Kent v. Nicholson, 20 Vet. App. 1 (2006). In that decision, the Court held that VA must notify a claimant of the evidence and information necessary to reopen a previously denied claim, as well as the evidence and information necessary to establish his entitlement to the underlying claim for the benefit sought, (i.e., service connection). In that case, the Court noted that VA's obligation to provide a claimant with notice of what constitutes new and material evidence to reopen a service connection claim may be affected by the evidence which was of record at the time that the prior claim was finally denied. The Court further stated the VCAA requires, in the context of a claim to reopen, that the Secretary look at the basis for the denial in the prior decision, and respond with a notice letter which describes what evidence would be necessary to substantiate the element or elements required for service connection which were found insufficient in the previous denial. While the veteran was provided with a basic description of the requirements for service connection, he has yet to be provided with notice which fully complies with the specified criteria regarding new and material evidence in Kent (i.e., the type of evidence which would be new and material based on the reasons for the prior denial). Such notice must be provided to him prior to a final adjudication of his current claim for service connection for a back disorder. Accordingly, the case is REMANDED for the following action: 1. Review the claims file, and ensure that the veteran is sent a corrected VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) as outlined in Kent v. Nicholson, 20 Vet. App. 1 (2006) for his claim to reopen service connection for a back disorder. 2. Request, directly from the Social Security Administration, complete copies of any medical records related to a claim asserted by the veteran for disability benefits from that agency, as well as any disability determination(s) made by SSA. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the veteran must be informed in writing. 3. The veteran should be scheduled for a VA psychiatric examination to determine the nature, extent, onset and etiology of any psychiatric disability found to be present. All indicated studies should be performed, and all findings should be reported in detail. The claims files should be made available to and reviewed by the examiner. The examiner should state the likelihood that any psychiatric disability found to be present, to specifically include schizophrenia, existed prior to service. If the examiner concludes that a psychiatric disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the veteran as having a psychiatric disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service. In offering each of these opinions, the examiner should specifically acknowledge and comment on the veteran's report of a continuity of psychiatric symptoms since service. The rationale for all opinions expressed should be provided. 4. Then, the AMC should adjudicate the veteran's claims. If the benefits sought on appeal are not granted, the AMC should issue the veteran a Supplemental Statement of the Case and provide him with an opportunity to respond. 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. 2006). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs