Citation Nr: 0814008 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 05-17 498A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for schizophrenia. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Morales, Associate Counsel INTRODUCTION The veteran served on active duty from August 1976 to May 1977. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which found there was not new and material evidence sufficient to reopen the claim for service connection for schizophrenia. The appeal for service connection for schizophrenia is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. A March 1979 RO decision which denied the veteran's claim of entitlement to service connection for a mental disorder was a final decision. 2. The veteran submitted new evidence showing symptoms of a mental disorder in service which is related to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence pertinent to the claim of entitlement to service connection for schizophrenia has been presented and the claim is reopened. See 38 U.S.C.A. § 5107, 5108 (West 2002), 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Most of the veteran's service medical records are unavailable. The only records VA was able to locate are an enlistment examination, a separation examination, and dental records. Under such circumstances, VA has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992), O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 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, 3.326(a) (2007). A veteran attempting to reopen a previously adjudicated claim must be notified of the elements of her claim and of the definition of "new and material evidence." Notice must be given of precisely what evidence would be necessary to reopen a claim, depending upon the basis of any previous denial of the claim. See Kent v. Nicholson, 20 Vet. App. 1 (2006). As the veteran's request to reopen her claim is being granted, no further discussion of the VCAA is required. New and Material Evidence A claim that has been denied, and not appealed, will not be reopened. See 38 U.S.C.A. §§ 7104(b), 7105(c), 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a). The exception to this rule provides that if new and material evidence is presented or secured with respect to the disallowed claim, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108, 38 C.F.R. § 3.156. "New evidence" means existing evidence not previously submitted to agency decisionmakers. "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. See 38 C.F.R. § 3.156. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The veteran's claim for service connection for schizophrenia, also called a mental disorder, was originally denied in a March 1979 rating decision, based on the lack of symptoms or diagnosis in service. The veteran did not appeal and that decision became final. A request to reopen the claim was previously denied due to lack of new and material evidence in a rating decision of January 1986. In August 2005, the veteran submitted a copy of a single page from her service medical records, dated April 5, 1977, which noted "patient unable to keep straight history, jumping from subject to subject, patient walked out of office AMA. Needs mental hygiene counselling." This evidence was not previously submitted, and is therefore "new." The evidence also relates to a fact not previously established. It shows that the veteran exhibited problems in service that merited a referral for mental hygiene counseling and may have received counseling. Therefore, the evidence can be considered "material." New and material evidence having been submitted, the claim for service connection for schizophrenia is reopened. ORDER New and material evidence having been submitted, the claim for service connection for schizophrenia is reopened. REMAND The veteran began active duty in August 1976. An April 1977 service medical record shows that she was recommended for mental health counseling due to being unable to keep straight her history, jumping from subject to subject, and walking out on her job. A separation examination conducted in April 1977, following the recommendation for counseling, noted normal psychiatric functioning. She was discharged in May 1977. It does not appear that VA has attempted to obtain service personnel records which may explain why the veteran was discharged less than a year after induction. Also, while service medical records have been determined to be unavailable, VA has not yet requested service medical records showing mental treatment, which are sometimes separately filed. These records must be obtained. The private and VA medical records associated with the claims file may be incomplete. Records from the Niagara Fall Memorial Medical Center show that the veteran was transferred to the Buffalo VA facility for treatment in October 1978 and that she received previous VA treatment. Also, while there are various records from the Niagara Fall Memorial Medical Center associated with the claims file, the veteran's complete records from that facility are not associated with the claims file. At a VA examination in November 2006, the examiner found there was no relationship between the veteran's schizophrenia and service, finding the April 1977 notation to be insufficient evidence. The examiner did not discuss that the veteran was diagnosed with schizophrenia shortly after service, and did not state whether schizophrenia "at least as likely as not" began in service. Although a new examination is not necessary unless required by the examiner, a more detailed opinion is required. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request the veteran's service personnel file, including any records relating to discharge, and any separately filed mental health records, from the National Personnel Records Center. 2. The veteran's complete VA treatment records from Buffalo, New York, as well as any other VA facility, should be associated with the claims file. 3. The veteran's complete Niagara Fall Memorial Medical Center records should be associated with the claims file. 4. When the above development is completed, the entire claims file must be made available to a VA provider for a medical opinion. Examination of the veteran is not needed unless required by the examiner. Pertinent documents should be reviewed. The examiner should state whether the veteran's schizophrenia, which was first diagnosed in October 1978, is at least as likely as not had its onset in or is otherwise related to service. 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 causation as it is to find against causation. 5. After completing the above action and any other development as may be indicated, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and her representative. After the veteran and her representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review. 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007). Department of Veterans Affairs