Citation Nr: 1243167 Decision Date: 12/17/12 Archive Date: 12/27/12 DOCKET NO. 03-01 823 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, claimed as paranoid schizophrenia. 2. Entitlement to service connection for a psychiatric disorder. (The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder will be the subject of a separate decision. ) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from March 1975 to March 1979. In February 2004 and December 2006, the Board considered the issues of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia and entitlement to service connection for PTSD. Each time, they were remanded for further development. In November 2010, following additional development of the evidence, the Board of Veterans' Appeals (Board) granted the Veteran's request to reopen his claim of entitlement to service connection for PTSD. The Board then remanded that issue for further development. The Board also remanded the Veteran's request to reopen his claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. In March 2012, the VA Appeals Management Center (AMC) in Washington, D.C. denied the Veteran's request to reopen his claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. The AMC found that the Veteran had not submitted new and material evidence to support a reopening of the claim. The AMC also confirmed and continued the denial of entitlement to service connection for PTSD. The AMC found that the Veteran did not have a confirmed diagnosis of PTSD or evidence of a confirmed stressor. During the course of the appeal, the Veteran had hearings before members of the Board in conjunction with his various claims. In July 2003, the Veteran had a hearing at the RO before Veterans Law Judge Alan S. Peevy. Specifically before the Board was the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. With respect to that issue, Judge Peevy took testimony on entitlement to service connection for schizophrenia and PTSD. In February 2010, the Veteran had a video conference with Acting Veterans Law Judge L. M. Barnard. The issues were whether new and material evidence had been received to reopen a claim of entitlement to service connection for a psychiatric disorder and whether new and material evidence had been received to reopen a claim of entitlement to service connection for PTSD. Acting Judge Barnard also took testimony with respect to the issue of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a left knee disorder. In situations where the Veteran has had hearings on one or more issues before different members of the Board, the Chairman of the Board will assign a panel of three or more members to adjudicate the claim or to take other appropriate action. 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 19. 3 (2012). Therefore, with respect to the issues of whether new and material evidence had been received to reopen a claim of entitlement to service connection for a psychiatric disorder, including schizophrenia and entitlement to service connection for PTSD, the appeal is being addressed by a panel of three Board members. Those members include Veterans Law Judge Peevy and the Acting Veterans Law Judge Barnard, who conducted the Board hearings. See 38 C.F.R. § 20.707 (2012). In this regard, the Board notes that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). However, in correspondence received by the Board in October 2012, the Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge. Therefore, the Board will proceed without a third hearing. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder will be the subject of a separate decision. That appeal will be adjudicated solely by Acting Veterans Law Judge Barnard, as she was the only judge to receive testimony on that issue. After reviewing the record, the Board finds that still-additional development of the record is warranted with respect to the issues of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and entitlement to service connection for PTSD. FINDINGS OF FACT 1. In an unappealed rating decision, dated in September 1999, the RO confirmed and continued its June 1996 denial of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. 2. Evidence associated with the record since the RO's September 1999 decision has not been submitted, previously, to VA decisionmakers and bears directly and substantially upon the issue of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. 3. Evidence associated with the record since the RO's September 1999 decision is neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. CONCLUSIONS OF LAW 1. The RO's September 1999 rating decision, which denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001) (revised and codified at 3.156 (2012)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In October 2000, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. As noted above, this is not the Veteran's first claim for entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. That claim was initially denied by the RO in June 1996; and an application to reopen that claim was denied by the RO in September 1999. The Veteran was notified of each of those decisions, as well as his appellate rights. However, he did not file a notice of disagreement on either occasion with which to initiate an appeal. Therefore, those decisions became final under the law and regulations then in effect. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1103 (1999). With respect to his application to reopen a claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). VA also informed him of the evidence necessary to support the underlying service connection claim. In this regard, the Board notes that throughout the appeal, the Veteran and his representative have shown a good working knowledge of the criteria necessary to reopen the Veteran's claim, as well as the criteria to support the underlying claim. Id. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. That duty requires VA to make reasonable efforts to obtain relevant records (including private records) that the Veteran adequately identifies to VA and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b)(1). However, the duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. In this case, VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting the Veteran's treatment by J. E. E. from September 1990 through November 1992; records reflecting the Veteran's treatment by J. P. F., Ph.D. from December 1990 through April 1996; a May 1991 report from R. W. C., M.D., Ph.D.; records reflecting the Veteran's admission to Charter Hospital of Jackson from December 1990 through January 1991; records reflecting the Veteran's treatment at the Touro Center for Chronic Pain and Disability from July to November 1991; the reports of VA examinations, performed in February and April 1996, April 2001, and June 2011; an April 1996 report from J. D. P., M.D.; records reflecting the Veteran's VA treatment from April 1996 to August 2008; the transcripts of the Veteran's hearings before the Board in July 2003 and February 2010; and a January 2010 report from C. E. G., M.D. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his application to reopen a claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. He has not identified any outstanding evidence which could support that application; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis During his hearings, the Veteran testified that his psychiatric problems, diagnosed as paranoid schizophrenia, were first manifested in service. Therefore, he concluded that service connection was warranted. At the very least, he contended that he has submitted new and material evidence to reopen the claim. After reviewing the record, the Board finds that the Veteran has submitted new and material evidence, including the report of a VA psychiatric examination, performed in June 2011. Such evidence is new in the sense that it has not been before VA previously. It is also material in that it tends to fill deficits in the evidence which existed at the time of the RO's September 1999 decision. Such evidence is new and material for the purpose of reopening the claim; and, therefore, the claim is reopened. To that extent, the appeal is granted. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(b) (2012). Generally, there must be competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In September 1999, when the RO last denied the Veteran's claim of service connection for a psychiatric disorder, including paranoid schizophrenia, the evidence on file consisted of his service treatment and personnel records; records reflecting the Veteran's treatment by J. E. E. from September 1990 through November 1992; records reflecting the Veteran's treatment by J. P. F., Ph.D. from December 1990 through April 1996; a May 1991 report from R. W. C., M.D., Ph.D.; records reflecting the Veteran's admission to Charter Hospital of Jackson from December 1990 through January 1991; records reflecting the Veteran's treatment at the Touro Center for Chronic Pain and Disability from July to November 1991; an April 1996 report from J. D. P., M.D.; and the report of an April 1996 VA psychiatric examination. The RO acknowledged that the Veteran had experienced anxiety and hyperventilation syndrome in service but found it to be acute and transitory. The RO found no evidence of a chronic, identifiable psychiatric disorder, diagnosed primarily as paranoid schizophrenia and PTSD, until the early 1990's, many years after service. Although R. W. C., M.D., opined that there was a nexus to the Veteran's anxiety in service, the RO found the preponderance of the evidence against that claim. Accordingly, service connection was denied, and, as noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. The exception to this rule is 38 U.S.C.A. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510, 512 (1992). In October 2000, when the Veteran filed his claim, new and material evidence meant evidence not previously submitted to VA decisionmakers which bore directly and substantially upon the specific matter under consideration, which was neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). During the course of the appeal VA revised its regulations with respect to new and material evidence. However, those revisions applied to claims seeking to reopen filed on or after August 29, 2001 (66 Fed. Reg. 45620)(August 29, 2001). Inasmuch as the Veteran's claims were filed prior to that date, the revised provisions are not applicable. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Evidence added to the record since the RO's September 1999 decision includes the report of a VA psychiatric examination, performed in June 2011. Such evidence is new in the sense that it has not been before VA previously. It is also material in that it tends to fill deficits in the evidence which existed at the time of the RO's September 1999 decision. During the June 2011 VA examination, the examiner found the Veteran to be a reliable historian. The examiner noted that while the Veteran was in service, he began showing multiple symptoms of schizophrenia. Such a notation provides sufficient evidence to suggest a potential nexus between the Veteran's schizophrenia and service. It is neither cumulative nor redundant of the evidence of record in September 1999 and, bears directly and substantially upon the issue of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. Indeed, when considered with the evidence previously assembled, the Board finds it so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Therefore, it is sufficient to reopen the claim; and to that extent, the appeal is granted. ORDER The application to reopen a claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia, is granted. REMAND In light of the foregoing decision, the VA may proceed to evaluate the merits of the Veteran's claim of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia. Elkins. It would be premature for the Board to do so prior to the RO, as such action could result in prejudice to the Veteran's claim. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993); VAOPGCPREC 16-92. In reviewing the record, the Board notes that the Veteran has presented evidence of multiple psychiatric disorders. For example, in service in October 1975, the Veteran was treated for anxiety/hyperventilation syndrome. Post-service treatment records and reports, such as those from R. W. C., M.D., dated in May 1991, show that the Veteran was treated for paranoid schizophrenia, while those from J. P. F., Ph.D., dated in March 1992, show that the Veteran had PTSD. Following the VA psychiatric examination in April 1996, the diagnoses included psychotic disorder, not otherwise specified. That month J. D. P., M.D., found that the Veteran had posttraumatic anxiety and depression, and in January 2010, C. E. G., M.D., stated that in addition to PTSD and paranoid schizophrenia, the Veteran had panic disorder with agoraphobia. In sum, the Veteran has several diagnosed psychiatric disorders. In the October 2000 application to reopen his claim, the Veteran identified his psychiatric disorder as nervousness and anxiety. Nevertheless, the scope of the claim cannot be limited only to those conditions. Rather, it must be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue as entitlement to service connection for a psychiatric disorder to more accurately reflect the scope of the Veteran's claim. A further review of the record reveals the presence of a September 2008 report from the Social Security Administration showing that the Veteran is in receipt of Social Security benefits. However, the evidence does not show the type of benefit received, nor does it show the nature of any disabilities associated with that award. In any event, records associated with those benefits have not been requested from the Social Security Administration. During his February 2010 hearing, the Veteran testified that he had PTSD as the result of a stressor which occurred one evening while he was on guard duty. He stated that a group of Marines had thrown a beer bottle at him which had struck him in the testicles. His service treatment records show that in May 1978, he was treated for a 60 day history of trauma to the testicles. That would have placed the date of the trauma in March 1978. At that time, the Veteran was assigned to Company B, 1st Battalion, 7th Marines, 1st Marine Division (Rein.). In January 2011, VA requested records of the Veteran's stressor from the United States Marine Corps Archives and Special Collections section. In February 2011, the Head of the Archives and Special Collections Branch of the Library of the Marine Corps, stated that he was unable to fulfill the request at that time due to insufficient information. It was requested that VA identify the Veteran's unit of assignment and the exact date or month of the alleged incident. To date, such information has not been provided to the Archives and Special Collections Branch of the Library of the Marine Corps. As noted above, during the June 2011 VA psychiatric examination, the examiner found the Veteran to be a reliable historian. The examiner noted that while the Veteran was in service, he began showing multiple symptoms of schizophrenia. In another section of his report, the VA examiner stated that the Veteran showed symptoms of schizophrenia before, during, and after service. However, the examiner did not specify any instances of pre-service psychotic symptoms. He noted that the Veteran had been raised in a two parent household and that he denied any history of sexual or physical abuse. The Veteran reported 12 years of formal education with above average grades and denied any disciplinary, behavioral, or psychiatric problems during his high school years. Nevertheless, the VA examiner stated that he was unable to distinguish whether the Veteran's schizophrenic disorder began before, during, and after service. Therefore, the VA examiner stated that as to the etiology of the Veteran's schizophrenia, he was unable to render an opinion, without resorting to speculation. Not only is the VA examiner's statement unsupported by evidence of any preservice psychiatric problems, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Therefore, the Board finds the report of the June 2011 VA examination insufficient for rating purposes. Inasmuch as there may be outstanding evidence which could support the Veteran's claims of entitlement to service connection for a psychiatric disorder, including paranoid schizophrenia and PTSD, additional development of the record is warranted prior to further consideration by the Board. Accordingly, those issues are remanded for the following actions: 1. Request records directly from the Social Security Administration associated with the Veteran's grant of Social Security benefits. Such records should include, but are not limited to, a copy of the original award letter, a copy of the decision granting the Veteran Social Security benefits, and any medical records associated with that grant. Efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). 2. With respect to the Veteran's alleged stressor, provide additional information to the Archives and Special Collections Branch of the Library of the Marine Corps as requested in its February 2011 letter. Specifically, provide the Veteran's unit at the time of the stressor and the month and year of the stressor. A response must be obtained and associated with the claims file. 3. When the actions in parts 1 and 2 have been completed, schedule the Veteran for an examination by a Board of two psychiatrists who have not seen him previously. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of such materials in any report generated as a result of this remand. If a psychiatric disorder(s) is diagnosed, the examiners must identify and explain the elements supporting each diagnosis. In addition, the examiners must provide an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that any of the diagnosed disorders were first manifested in service. In so doing, the examiners must state how and why they reached the opinion(s) they did. The Veteran is advised that it is his responsibility to report for the examination(s) and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination(s), the notice informing him of the date, time, and location of the examination must be associated with the claims file. If such notice was returned to VA as undeliverable, that fact must be noted in writing and also associated with the claims folder. 4. When the actions requested in parts 1, 2, and 3 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a psychiatric disorder. If the benefit(s) sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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). ______________________________ ______________________________ L. M. BARNARD ALAN S. PEEVY Acting Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals ____________________________________________ DENNIS F. CHIAPPETTA Chief Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs