Citation Nr: 1115442 Decision Date: 04/20/11 Archive Date: 05/04/11 DOCKET NO. 09-43 673 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, to include schizophrenia. 2. Entitlement to service connection for a psychiatric disorder to include schizophrenia. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from July 1995 to November 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by which the RO declined to reopen the finally decided claim of entitlement to service connection for schizophrenia. The RO previously denied service connection for schizophrenia in a May 2004 rating decision that became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2010). In its present adjudication, the RO denied the claim of entitlement to service connection for schizophrenia based on the fact that sufficient new and material evidence to reopen it had not been received. Indeed, a previously decided claim may not be reopened in the absence of new and material evidence. Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Regardless of RO action, however, the Board is bound to decide the threshold issue of whether the evidence is new and material before addressing the merits of a claim. Id. The United States Court of Appeals for Veterans Claims (Court) has recently held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the Veteran's contentions, and the evidence of record, the Board has recharacterized the issue on appeal as entitlement to service connection for a psychiatric disorder, to include schizophrenia as opposed to simply entitlement to service connection for schizophrenia. As set forth in more detail below, a remand is necessary with respect to the claim of entitlement to service connection for a psychiatric disorder, to include schizophrenia. That issue 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. By May 2004 rating decision, the RO denied the Veteran's claim of entitlement to service connection for schizophrenia; although he was sent notice of the RO's decision, the Veteran did not file a timely appeal regarding that decision. 2. The evidence associated with the claims file subsequent to the May 2004 rating decision is not duplicative of evidence previously of record, relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder to include schizophrenia. CONCLUSIONS OF LAW 1. The May 2004 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. Since the final May 2004 rating decision, new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder to include schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, VA has a duty 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Given the Board's favorable decision on the Veteran's petition to reopen his previously denied claim of service connection for a psychiatric disorder, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. Discussion Generally, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after service when all of the evidence establishes that the disease was incurred in service. Id. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002), 38 C.F.R. § 3.304(b) (2010); see also VAOPGCPREC 3-2003 and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did no detect or note the disability that the Veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b) . A "history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The Court has held that "the burden of proof is on VA to rebut the presumption of soundness by producing clear and unmistakable evidence that the Veteran's asthma existed prior to service and . . . if the government meets this requirement, that the condition was not aggravated in service." Crowe v. Brown, 7 Vet. App. 238, 246 (2004), citing Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden is a formidable one. Id. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (2010). In a May 2004 rating decision, the RO denied the Veteran's claim of entitlement to service connection for schizophrenia on the basis that the condition existed prior to entry into service. The Veteran was provided notice of the decision and of his appellate rights. He did not perfect a timely appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2010) (the regulations pertaining to the procedures for initiating and perfecting appeals to the Board of unfavorable RO determinations). Therefore, the May 2004 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Nevertheless, a claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108. Because the May 2004 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the Veteran's claims for service connection should be reopened and re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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. 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) (2010). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the May 2004 rating decision consisted of the service treatment records that did not reflect psychiatric problems on entry but contained subsequent psychiatric findings, which show that the Veteran reported psychiatric problems prior to service. Also included were records from the Riverside County Regional Medical Center showing treatment for psychiatric disorders to include depression and schizophrenia. Potentially relevant evidence received subsequent to the May 2004 rating decision consists of various non-VA psychiatric treatment records showing diagnoses of schizophrenia. Of note in May 2004, the Veteran told a social worker that he started hearing voices in 1999 but that symptoms consistent with paranoia began when he was 23, before service. VA medical records dated in December 2007 reflect that the Veteran was seen as a poor historian. In October 2008, the Veteran related to a mental health professional that upon discharge from the Navy he was suffering from stress and that he began hearing voices in 1998 or 1999. In his March 2009 notice of disagreement, the Veteran stated that his psychiatric symptoms began in service. The Board has reviewed the evidence since the May 2004 rating decision and has determined that it is new, as it was not of record prior to the issuance of the May 2004 rating decision. The aforementioned evidence, moreover, is new and material within the meaning of applicable law and regulations because it is probative of the issue at hand, which is whether the Veteran's current psychiatric disorder is related to service. The new evidence suggests that the Veteran's symptoms began in service, as apparent from the Veteran's March 2009 notice of disagreement, or were aggravated thereby, as apparent from a May 2004 report reflecting that he indicated that he was suspicious and paranoid but that auditory hallucinations began in or after service. Because the credibility of the evidence is presumed, for the first time, there is evidence of in-service incurrence or aggravation. Thus, the Board finds that the newly added evidence relates to unestablished facts necessary to substantiate the Veteran's claim of service connection for a psychiatric disorder to include schizophrenia. 38 C.F.R. § 3.156(a). Accordingly, the Veteran's claim of service connection for a psychiatric disorder to include schizophrenia is reopened. ORDER The claim of entitlement to service connection for aq psychiatric disorder to include schizophrenia is reopened. To that extent only, the claim is granted. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim of service connection for a psychiatric disorder to include schizophrenia. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. The record contains VA treatment records dated in December 2007. At that time, during treatment at the Loma Linda VA Medical Center (MC), the Veteran indicated that he was planning to pursue further treatment at the Loma Linda University Medical Center. The record does not contain these records, and there is no indication that the RO made efforts to obtain these records. As such, after obtaining the requisite release from the Veteran, the RO should make appropriate efforts to secure these records. Additionally, as VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from December 18, 2007 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Furthermore, the claims file suggests that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). The RO should associate with the claims file the records pertaining to the Veteran's SSA disability claim. Next, the RO must schedule a VA psychiatric examination for a diagnosis of all current psychiatric disorders and for an opinion as to the likely etiology of each disability diagnosed, including whether the Veteran's claimed psychiatric disorder pre-existed service, and if so underwent permanent aggravation therein. The examination instructions can be found below. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. Associate with the claims file all VA clinical records to include from the Loma Linda VAMC dated from December 18, 2007 to the present. 2. After securing the necessary release, obtain medical records from the Loma Linda University Medical Center. 3. Obtain from SSA the records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 4. After completing the above development, schedule a VA psychiatric examination. The claims file must be provided to the examiner and all pertinent documents in the claims file should be reviewed in conjunction with the examination. The examination report should indicate whether the requested review took place. The examiner should diagnose all present psychiatric disorders. It is requested that the VA examiner address the following questions regarding the claimed psychiatric disorder(s): 1) Did a psychiatric disorder or disorders clearly and unmistakably exist prior to entrance into active duty service? 2) If there was a clearly and unmistakably preexisting psychiatric disorder or disorders, did any condition undergo aggravation during service or was any increase clearly and unmistakably due to the natural progress of the disease? 3) If there was not a preexisting psychiatric disorder, is it at least as likely as not that the claimed disorder or disorders had its/their onset during service or is/are otherwise related to service or an incident of military service? For purposes of this analysis, aggravation is defined as a permanent worsening of the disability beyond that due to the natural progress of the disease. A thorough rationale for all opinions and conclusions should be provided. 5. After conducting the requested development and any additional development deemed necessary, the RO should readjudicate the claim, considering all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case and an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2010). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs