Citation Nr: 1326897 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 13-16 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that determined new and material evidence had not been submitted to reopen the claim for service connection for an acquired psychiatric disorder. However, in the March 2013 Statement of the Case, the RO reopened the Veteran's claim, but denied it on the merits. In this decision, the Board notes the Veteran has repeatedly attempted to establish his entitlement to service connection for various psychiatric disorders. Specifically, he has filed claims for posttraumatic stress disorder (PTSD), schizophrenia and neuropsychiatric disorders. However, in June 2013, the Veteran withdrew his claim of entitlement to service connection for PTSD. Therefore, as it pertains to the remaining diagnoses, following a review of the evidence in the claims file, the Board has expanded the claim to also more generically include all psychiatric disorders, most recently denied in a September 2008 rating decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.). The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. During the March 2013 VA compensation examination, the examiner noted that the Veteran was last employed in 1995. Additionally, the examiner concluded that the Veteran is unemployable. Therefore, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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. Service connection for psychiatric disability was denied in an unappealed September 2008 rating decision; the Veteran was notified of the determination and of his appellate rights but did not appeal and the decision became final. 2. Evidence received since the most recent September 2008 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. Competent medical evidence indicates that an acquired psychiatric disorder, diagnosed as schizophrenia, is related to the Veteran's military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The criteria for service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board reopens the Veteran's psychiatric disability claim and grants service connection for schizophrenia. As such, no discussion of VA's duty to notify and assist is necessary. I. Claim to Reopen The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's claim of service connection for psychiatric disability was previously denied in a September 2008 rating decisions. The Veteran did not file any statement indicating disagreement with these prior decisions, or submit relevant evidence within one year following their issuance, specifically, the September 2008 decision. In fact, following the most recent denial in September 2008, the next statement received by VA from the Veteran was his October 2010 petition to reopen this claim. Accordingly, the September 2008 rating decision is now final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2012). Generally, a claim that has been finally denied by an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7104(c). 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court recently 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 v. Shinseki, 24 Vet. App. 110 (2010); 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, but only needs to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, following the receipt of service personnel records, the Veteran's psychiatric disability claim was reconsidered de novo in September 2008. At the time of that determination, the evidence included the Veteran's service treatment and service personnel records, and VA treatment records dated through August 2008. The RO denied the Veteran's claim because there was no evidence the Veteran had a diagnosed psychoneurotic disorder attributable to his military service. In October 2010, the Veteran filed a petition to reopen this claim. The evidence received since the September 2008 rating decision includes a memorandum from the National Personnel Records Center (NPRC); statements from the Veteran in support of his claim; a record of the Veteran's hospitalization at the St. Louis, Missouri, VA Medical Center (VAMC) from March 10, 2011 to March 17, 2011 and in October 2011 for schizophrenia and substance abuse; VA treatment records dated through July 2011, showing continuous mental health treatment and current diagnoses of mental health disabilities; and, the report of a March 2013 VA compensation exemption. The credibility of this additional evidence is presumed for the limited purpose of determining whether this evidence is new and material. Justus, 3 Vet. App. 510, 513 (1992). As such, the Board finds that the new evidence relates to a previously unestablished fact necessary to substantiate the Veteran's psychiatric disability claim. Consequently, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, the claim is granted. II. Service Connection Claim The Veteran asserts he has a psychiatric disorder as a result of his military service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, for certain chronic diseases, such as psychoses, including schizophrenia, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for psychoses is one year. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran's service treatment records show he received a diagnosis of acute schizophrenia, simple type, in June 1976. Following psychiatric evaluation and admission, the treating physician determined the Veteran suffered from adjustment reaction to adult life, acute, resolved. Additionally, the treating physician provided a diagnosis of acute psychotic breakdown. The physician further stated that the Veteran's symptoms noted during previous psychiatric evaluations, can be explained on the basis of either malingering (a Gansser-like syndrome), or transient acute psychotic episode in response to the stress of confinement. The physician concluded it was not possible to distinguish between the two possibilities. Following service, the Veteran was initially diagnosed as having schizophrenia in November 1994. The report of an August 1998 VA psychiatric examination reflects the Veteran has been receiving treatment for a psychiatric disability since 1977. Consequently, the examiner diagnosed him as having chronic paranoid schizophrenia and noted that his entitlement to nonservice-connected pension was based on the impact of that disability. The report of a September 2004 VA psychiatric examination reflects diagnoses of paranoid schizophrenia; alcohol, cocaine, and marijuana dependency, in remission; and, personality disorder, not otherwise specified. Significantly, the physician recommended that a review of the service hospitalizations should be done, and if there is any hint of schizophrenic symptoms, it is more likely than not the current illness first started in service. Further, VA treatment records from the St. Louis and Phoenix VAMC, dated through July 2011, show his continuous treatment for mental health disorders, reflecting diagnoses of chronic schizophrenia. He has been hospitalized numerous times for his psychiatric and substance disorders, most recently for schizophrenia and substance abuse in March and October 2011. As indicated, the Veteran's VA treatment records reflect drug abuse, diagnoses of alcohol, cocaine and marijuana dependency, history of polysubstance abuse, and drug abuse. None of these records contain any medical opinions that link any of the noted diagnoses to military service. The Veteran was more recently examined in March 2013. The VA examiner provided diagnoses of personality disorder, polysubstance dependence, and substance induced psychotic disorder. A diagnosis of schizophrenia was not provided and the examiner stated the Veteran does not present the adequate symptoms required for such a diagnosis. Following a review of the Veteran's claims file, the examiner determined that substance induce psychotic disorder better explains the Veteran's mental health and substance dependence symptoms versus a diagnosis of schizophrenia. The examiner concluded that the Veteran's current mental health symptoms are not attributable to his military service. Based on the evidence, and resolving all reasonable doubt in the Veteran's favor, the Board finds service connection for schizophrenia is warranted. The competent medical evidence of record has established a current disability exists. Although other psychiatric disability were diagnosed during this appeal, the consensus of the examiners is that the Veteran has schizophrenia and that service connection is not warranted for alcohol, cocaine, and marijuana dependency, in remission; and, personality disorder, not otherwise specified. In addition to current diagnoses, a causal nexus has been established. The persuasive medical evidence supports a finding that a nexus exists between the current diagnosis of schizophrenia and service. The September 2004 VA examiner stated a review of the service hospitalizations should be done, and if there is any hint of schizophrenic symptoms, then it is more likely than not the current illness first started in service. In light of the in-service diagnosis of acute schizophrenia, the hospitalization report which reflects a diagnosis of acute psychotic breakdown and the opinion of the psychologist who conducted the September 2004 VA psychiatric examination, the Board finds that service connection for schizophrenia is warranted. In reaching this determination, the Board has considered the negative nexus opinion provided by the VA examiner in March 2013. However, the Board finds the March 2013 VA examination opinion to be inadequate, as to the determinative matter at hand. The examiner did not consider the findings of the September 2004 VA examination. Additionally, while the March 2013 examiner may not have agreed with the prior diagnoses of schizophrenia as an adequate explanation for the Veteran's symptoms, for the purposes of this appeal, the Veteran has a current diagnosis of schizophrenia. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, this examination does not reflect adequate consideration of the competent and credible medical evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336. This deficiency renders the findings of the March 2013 VA examiner incomplete, and the Board accords the opinion no probative value. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In sum, the evidence supports a finding that the Veteran's schizophrenia had its onset in service. Accordingly, service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, is warranted. 38 U.S.C.A. § 5107(b). ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened; to that extent, the appeal is granted. Service connection for an acquired psychiatric disorder, diagnosed as schizophrenia, is granted. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs