Citation Nr: 1319610 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 12-06 715 ) 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 an acquired psychiatric disorder, diagnosed as schizoaffective disorder (bipolar type) and, if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied schizoaffective disorder (bipolar type). The Veteran testified before the undersigned Veteran Law Judge in May 2013. 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 June 1996 denied service connection for acquired psychiatric disorder. The Veteran did not appeal and the decision became final. 2. The evidence received since the June 1996 rating decision is new and raises a possibility of substantiating the claim. 3. The Veteran's schizoaffective disorder (bipolar type) had its onset in service. CONCLUSIONS OF LAW 1. The unappealed June 1996 rating decision that denied service connection for schizoaffective disorder (bipolar type) 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 schizoaffective disorder (bipolar type). 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Schizoaffective disorder (bipolar type) was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 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 schizoaffective disorder (bipolar type). 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 acquired psychiatric disorder. A rating decision issued in June 1996 denied entitlement to service connection for acquired psychiatric disorder. The Veteran did not file a notice of disagreement with the June 1996 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. 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 June 1996 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 June 1996 denial consisted of the Veteran's service treatment records (STRs), Marine Corps Reserve medical records, and an April 1996 VA psychiatric examination report. The basis of the final denial was the absence of evidence that the current disability was aggravated by service. Since the June 1996 rating decision, new evidence added to the record consists of VA treatment records dated from November 1997 to May 2011; private treatment records dated March 1998, September 1999, and October 2004; 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 did not experience any psychiatric symptoms before service, that his symptoms began during basic training, and that his symptoms have continued and progressively worsened since that time. The new evidence also contains VA treatment records in which the Veteran reported that his psychiatric symptoms began in service. The absence of evidence that his current disability was aggravated by service was the element of service connection upon which the prior denial was based. Accordingly, this evidence that his symptoms did not begin until service and worsened during and thereafter 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 an acquired psychiatric disorder, diagnosed as schizoaffective disorder (bipolar type), 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). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). 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 recurrent symptoms. 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 schizoaffective disorder (bipolar type) began in and have been continuous and worsening since service. The Board notes that the April 1996 VA examiner felt that "it appeared that the Veteran suffered in his late teens or beginning twenties, "schizoid personality disorder" from being disposed for psychotic break under severe mental demand." 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 a current diagnosis of schizoaffective disorder (bipolar type). Specifically, VA treatment records show that in November 1997 he was diagnosed with probable schizophrenia (disorganized type), rule out schizoaffective disorder. By June 1998 he was diagnosed with schizophrenia (disorganized type). The diagnosis of schizophrenia continued through June 2002, variously characterized as undifferentiated, chronic, unspecified, NOS, or disorganized. It was also sometimes paired with Axis I diagnoses of thought disorder, paranoia, and anxiety disorder NOS. In June 2002, the diagnosis changed to schizoaffective disorder (bipolar type) and that diagnosis has continued to the present day. The Board thus finds that the Veteran has a current disability of schizoaffective disorder (bipolar type). The Veteran's entrance examination, dated January 1991, shows normal psychiatric and psychological evaluation. On entrance the Veteran also denied any psychiatric symptoms or history on his Report of Medical History. The physician reviewing the form specifically noted that there was no history of psychiatric counseling. STRs show that in September 1991, during service, he had an Axis I diagnosis of depressive disorder NOS. In a Report of Medical History dated December 1991 the Veteran reported depression or excessive worry and nervous trouble. He highlighted these complaints in longhand notes reading "depression at times" and "nervous trouble yes." The physician noted "worry secondary to stress" and that he had intermittent hand tremors during high stress. Therefore, there were psychiatric symptoms noted in the STRs and a diagnosis in service of depressive disorder. Marine Corps Reserves medical records show that as early as July 1993 the Veteran was taking an antidepressant. He was treated for depression with medication thereafter, including psychiatric treatment at the Rhode Island Hospital from January 1995 to March 1995. He was eventually discharged from the Reserves in late 1995 due to his psychiatric diagnoses. At the April 1996 VA examination, the Veteran reported that he was mentally fine prior to service, and that it was in basic training that he experienced overwhelming difficulties and confusion with the demands and requirements of training. The VA examiner concluded that the Veteran must have undergone "some short lasting psychotic breaks, likely the first one and another one during the time of his intensive...basic training process." VA treatment records show continued treatment for psychiatric disabilities from November 1997 to the present. While the disability diagnosed in service was depressive 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 Veteran's claim for schizoaffective disorder (bipolar type) encompasses depressive disorder and his other various psychiatric diagnoses during the appeal period. The Veteran is competent to report on that of which he has personal knowledge, including his symptoms and treatment. Layno. Therefore, his testimony and statements regarding onset and recurrence of symptoms are competent. In its capacity as a finder of fact, the Board finds the Veteran is also credible both as to his hearing testimony and his reports of psychiatric history to various medical providers over the years. The Veteran testified that his psychiatric symptoms began during basic training and have progressively worsened ever since. This chronicity is supported by the STRs, Reserves treatment records, and VA treatment records. The evidence shows that the Veteran had psychiatric symptoms and a diagnosis during service and is currently diagnosed as having schizoaffective disorder (bipolar type). Further, an April 1996 VA psychiatrist indicated that the Veteran had his first two psychotic breaks in service. In addition, the Veteran has consistently, competently, and credibly reported having similar psychiatric problems since discharge. As such, and resolving all reasonable doubt in his favor, the Board finds that service connection for schizoaffective disorder (bipolar type) is warranted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for acquired psychiatric disorder. Service connection for schizoaffective disorder (bipolar type) is granted ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs