Citation Nr: 1032268 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 07-20 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of service connection for schizophrenia, undifferentiated type. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD D.S. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which declined to reopen the Veteran's claim of service connection for schizophrenia, undifferentiated type. In his May 2007 substantive appeal, the Veteran initially indicated that he wished to be scheduled for a Board hearing at his local VA office. In May 2010, however, his request for a hearing was withdrawn. At the Veteran's request, the record on appeal was held open for an additional 60 days to permit him to submit additional evidence. No additional evidence was received during that time. The issue of entitlement to service connection for schizophrenia, undifferentiated type, 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 rating decision mailed to the Veteran in September 1992 declined to reopen the Veteran's claim of service connection for schizophrenia, undifferentiated type, and, the Veteran did not subsequently appeal that decision. 2. The Veteran filed his current request to reopen his claim of service connection for schizophrenia, undifferentiated type, in November of 2005. 3. The evidence associated with the claims file since the RO's September 1992 rating decision, when considered with the evidence previously of record, bears directly and substantially upon the questions of whether the Veteran sustained an in-service incurrence or aggravation of schizophrenia and/or whether the Veteran's schizophrenia was manifested within one year from his discharge from active duty service. CONCLUSION OF LAW The additional evidence associated with the claims file since the RO's September 1992 rating decision that declined to reopen a claim of service connection for schizophrenia, undifferentiated type, is new and material, and the Veteran's claim of service connection for schizophrenia, undifferentiated type, is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156(a) (2001); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Laws and Regulations Concerning Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including psychoses such as schizophrenia, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. II. New and Material Evidence Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the Veteran's claim was received after August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran's initial claim for service connection for schizophrenia, undifferentiated type, was denied in an August 1981 rating decision on the basis that the evidence at that time did not demonstrate in-service incurrence or aggravation of schizophrenia. Later that month, the Veteran sought to reopen his claim. In a September 1992 rating decision, however, the RO declined to reopen the Veteran's claim on the continuing basis that the evidence did not show incurrence or aggravation of schizophrenia during service. This rating decision was not appealed. Accordingly, the Board finds that the September 1992 rating decision is final under 38 U.S.C.A. § 7105(c). The question for the Board now is whether new and material evidence has been received, in support of the Veteran's claim, since the issuance of that final decision. In support of his November 2005 request to reopen his claim of service connection for schizophrenia, undifferentiated type, the Veteran has provided a January 2006 personal statement in which he asserts that the onset of schizophrenia during service caused him to go absent without leave (AWOL) for 87 days in 1975. He further asserts that he advised a "Cpt. Henderson" as to his illness and that he was subsequently discharged. VA has also obtained the Veteran's social security records, which include psychiatric evaluation and treatment records from 1976 to 1986. A January 1977 report reflects that the Veteran alleged disability due to "mental and speech problems" since September 29, 1975, the date of the Veteran's discharge from service. Treatment records from Southeastern Regional Mental Health Center (Southeastern Regional) reflect that the Veteran began receiving psychiatric treatment at that facility in November 1973, prior to service, and through October 1978. A January 1978 treatment record from Southeastern Regional reflects that a prior diagnosis of "non-psychotic organic brain syndrome" was changed to schizophrenia reaction, chronic undifferentiated. At a psychiatric evaluation in July 1985, the Veteran reported that he suffered "nervous breakdowns" prior to service in 1972 and again during service in 1975. At that time, the Veteran was diagnosed with "probable alcoholic hallucinosis versus possible chronic undifferentiated schizophrenia." The foregoing evidence indicates that the Veteran has received psychiatric treatment since November 1973, that the Veteran's disorder continued through his active duty service from August 1974 to September 1975, and that the Veteran has received ongoing psychiatric treatment since his discharge from service. This new evidence relates to the previously unestablished questions of whether the Veteran sustained an in-service incurrence or aggravation of schizophrenia and/or whether the Veteran's schizophrenia was manifested within one year from his discharge from active duty service. As these records also raise the reasonable possibility of substantiating the Veteran's claim, the Board finds that new and material evidence has been received, warranting that the Veteran's claim of service connection for schizophrenia, undifferentiated type, be reopened. III. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insofar as the Veteran's request to reopen service connection for schizophrenia, undifferentiated type, the Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, 38 C.F.R. § 3.159, and Kent v. Nicholson, 20 Vet. App. 1 (2006). Given the favorable action taken with regard to that issue, however, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. ORDER New and material evidence has been received to reopen the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD. REMAND A review of the claims file reveals that, to date, the Veteran's private and VA treatment records through May 2007 have been obtained. The RO should contact the Veteran to obtain the names and addresses for any private or VA treatment facilities who have provided him with psychiatric evaluation or treatment since May 2007. After the RO has obtained this information, efforts should be made to obtain treatment records from each provider identified by the Veteran. Although VA examinations were previously performed in July 1981 and June 1992, the corresponding examination reports do not reflect any opinions as to whether the Veteran's schizophrenia, undifferentiated type was either incurred during or aggravated by his active duty service. The Board also notes that a psychiatric evaluation performed in September 1985, as part of his social security disability claim, led the physician who performed that examination to conclude that the Veteran had "probable alcoholic hallucinosis versus possible chronic undifferentiated schizophrenia." Under the circumstances, a VA examination is required to clarify the nature of the Veteran's disorder and its etiology. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of service connection for schizophrenia, undifferentiated type. This letter must inform the Veteran about the information and evidence that is necessary to substantiate the claim and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The Veteran should be requested to provide, on a VA 21-4142 release, the names and addresses for any private or VA treatment providers who have given him psychiatric evaluation or treatment since May 2007. The Veteran should also be notified that, in cases where service connection is granted, both a disability evaluation and an effective date for that evaluation will be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. After securing any necessary release forms, with full address information, all records of medical treatment received since May 2007 should be requested. All records obtained pursuant to this request must be included in the Veteran's claims file. If the search for such records has negative results, documentation to that effect should be included in the claims file. 3. Then, the veteran should be afforded a VA examination, with an appropriate examiner, to determine the nature and etiology of the claimed psychiatric disorder. The Veteran's claims file must be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to provide a diagnosis corresponding to the claimed psychiatric disorder. The examiner is also requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed psychiatric disorder was incurred during service, or was aggravated by his active duty service. In providing the requested opinions, the examiner should provide an explanation of the rationale for his opinions, taking into account all relevant evidence in the claims file, including, the Veteran's service treatment records, service personnel records, lay statements, prior VA examinations of July 1981 and June 1992, VA treatment records, private treatment records from Southeastern Regional Mental Health Center, Quaker Center, Wake County Mental Health Services, and the Veteran's social security records. All opinions and conclusions should be expressed in a typewritten report. 4. After completion of the above development, the Veteran's claim of entitlement to service connection for schizophrenia, undifferentiated type, should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given 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. 2009). ______________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs