Citation Nr: 1319103 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 11-31 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for paranoid schizophrenia and chronic schizoaffective disorder and, if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran, his parents, and his sister-in-law ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's application to reopen a claim of service connection for schizophrenia. The Veteran, his parents, and his sister-in-law testified before the undersigned Veteran Law Judge (VLJ) in May 2013. The RO has characterized the psychiatric disorder on appeal as schizophrenia. However, the record shows that during the appeal period the Veteran has also been diagnosed with paranoid schizophrenia and chronic schizoaffective disorder. Claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2010). Thus, the issue has been recharacterized as stated on the title page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A rating decision issued in October 2008 denied service connection for schizophrenia. Though the Veteran initiated an appeal of this decision, he did not perfect an appeal, and the decision became final. 2. The evidence received since the October 2008 rating decision is new and raises a possibility of substantiating the claim. 3. The Veteran's schizophrenia and chronic schizoaffective disorder had their onset in service. CONCLUSIONS OF LAW 1. The unappealed October 2008 rating decision that denied service connection for schizophrenia is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Paranoid schizophrenia and chronic schizoaffective disorder were incurred in service. 38 U.S.C.A. §§ 1111, 1112, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for paranoid schizophrenia and chronic schizoaffective disorder. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. Reopened Claim The Veteran seeks to reopen his previously denied claim of service connection for schizophrenia. In a rating decision issued in October 2008 denied entitlement to service connection for schizophrenia. The Veteran filed a timely notice of disagreement and additional evidence was submitted. The RO considered that evidence and issued a Statement of the Case (SOC) in February 2009 continuing to deny the claim. The Veteran did not file a Substantive Appeal following the SOC. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the October 2008 rating decision became final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2012). Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final rating decision. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding reopening. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. Shade; see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim; rather it need only be probative in regard to each element that was a specified basis for the last disallowance). Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered in the final October 2008 denial consisted of the Veteran's service treatment records (STRs), service personnel records, lay statements from the Veteran, Social Security Administration (SSA) records, and VA treatment records dated from April 1992 to February 1994, August 2001 to April 2003, and June 2008 to August 2008. The basis of the final denial was the absence of evidence that the current disability was incurred in, caused by, or permanently worsened by, service. Since the October 2008 rating decision, new evidence added to the record consists of VA treatment records dated March 2011, and testimony from the May 2013 Board hearing. All of this evidence is new because it was not previously considered by agency decision makers. The new evidence includes testimony that the Veteran exhibited psychiatric symptoms and changes in behavior shortly after separating from service. The absence of evidence that his current disability incurred in service was the element of service connection upon which the prior denial was based. Accordingly, this evidence of symptoms and changed behavior close to separation from service relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim. It is therefore material and sufficient to reopen the previously-denied claim. Shade. The Board reopens the Veteran's claim of entitlement to service connection for a paranoid schizophrenia and chronic schizoaffective disorder for a de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be shown by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112, 1131; 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his symptoms of his currently diagnosed paranoid schizophrenia and chronic schizoaffective disorder have been continuous since service. The Board notes that there is lay evidence that the Veteran's psychiatric symptoms may have pre-existed service. However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). No psychiatric disability or symptoms were noted at entrance into service and the evidence does not clearly and unmistakably show that it was not aggravated by service. Accordingly, the Veteran is presumed to have been sound on entry with respect to his mental health. The evidence of record shows that the Veteran has current diagnoses of paranoid schizophrenia and chronic schizoaffective disorder. Specifically, during a psychiatric hospitalization in March 2011 at a VA hospital, his admitting diagnosis was schizoaffective disorder and his discharge diagnosis was paranoid schizophrenia. VA and SSA records (including records of private psychiatric hospitalizations in 1992 and 2001) show that he has been diagnosed with various psychiatric disorders over the last twenty or more years, including schizophrenia, schizoaffective disorder (bipolar type), and psychosis, NOS. The Board finds that the Veteran has a current disability of paranoid schizophrenia and chronic schizoaffective disorder. Schizophrenia is a psychosis, and therefore is one of the chronic illnesses enumerated in 38 C.F.R. § 3.309(a). The Veteran served for at least 90 days after December 31, 1946, satisfying the requirement at 38 C.F.R. § 3.307(a)(1). Thus, if his schizophrenia manifested to a degree of 10 percent or more within one year from November 1988 (his date of separation from service), it be considered to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a)(3). Paranoid schizophrenia and chronic schizoaffective disorder are considered to have manifested to 10 percent when they are manifested by 1) occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or 2) symptoms controlled by continuous medication. The STRs are silent as to psychiatric symptoms or treatment. His entrance examination shows normal psychiatric and psychological evaluation. There is no separation examination report in the claims file. The claims file does not contain any treatment records dated between November 1988 and November 1989. However, lay evidence, taken together with medical evidence, indicates that his symptoms were controlled by continuous medication during this time. In the majority of the private and VA treatment records, the Veteran and his parents reported that his psychiatric symptoms had been continuously controlled with Haldol and Lithium during service and since service. The earliest treatment record in the claims file, dated March 1992, states that the Veteran has "a long history of what appears to be a schizoaffective disorder, bipolar type." By March 1992, he had already been on a low dose of Haldol for years. This treatment record is part of the Veteran's first psychiatric hospitalization at The Institute of Living, where he was hospitalized for 18 days from March 1992 to April 1992. On admission, he was diagnosed with schizoaffective illness, bipolar type and the psychiatrist noted "[i]t appears that the patient is suffering from an exacerbation of his schizoaffective illness of a bipolar type. He has managed well over the years on low-dose Haldol but recently went off this medication and became increasingly symptomatic." Thus, the treatment records and hearing testimony are consistent with this medical conclusion, showing that the Veteran has had a continuity of symptomatology since service and that his psychiatric symptoms have been continuously controlled by medication since service. The Veteran's parents are competent to report on that of which they have personal knowledge, including observed symptoms, behavior, and treatment. Layno. Therefore, their testimony and statements are competent. In its capacity as a finder of fact, the Board finds the Veteran's parents are also credible both as to their hearing testimony and their reports of the Veteran's psychiatric history to various medical providers over the years. Both of the Veteran's parents testified that his behavior changed shortly after he separated from service, becoming less outgoing, more irritable, more strained, and having difficulty keeping a job. They testified that his symptoms have progressively worsened. This chronicity is supported by the medical records, which show that the Veteran had a longstanding history of psychiatric symptoms controlled by medication but by March 1992 he had to be hospitalized. The Board notes that the Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336 Given the Veteran's parents' credible continuity of symptomatology and control by continuous medication, as well as treatment records supporting a history of schizoaffective illness that predated March 1992 by years, the Board finds that, resolving doubt in favor of the Veteran, his schizophrenia manifested to a degree of 10 percent or more within one year from his date of separation from service. Therefore, his paranoid schizophrenia and chronic schizoaffective disorder are considered to have been incurred in or aggravated by service even though there is no evidence of such diseases during the period of service. 38 C.F.R. § 3.307(a)(3). Accordingly, service connection for such disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for schizophrenia. Service connection for paranoid schizophrenia and chronic schizoaffective disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs