Citation Nr: 1329402 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-40 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, claimed as schizophrenia. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and M. C., Psy. D. ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from August 1972 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the Veteran's application to reopen a claim for entitlement to service connection for schizophrenia. The Veteran and his treating psychologist testified during a videoconference hearing before the undersigned Acting Veterans Law Judge in August 2011. A transcript of that hearing is of record. 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. An October 2005 rating decision previously considered and denied service connection for an acquired psychiatric disorder. 2. The evidence received since the October 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 3. The Veteran has been shown to have an acquired psychiatric disorder that is etiologically related to his military service. CONCLUSIONS OF LAW 1. The October 2005 rating decision, which denied service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104(a) (2012). 2. The evidence received subsequent to the October 2005 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Resolving reasonable doubt in favor of the Veteran, an acquired psychiatric disorder was caused by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has reopened and granted the Veteran's claim for service connection for an acquired psychiatric disorder. Therefore, the benefits sought on appeal have been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Initially, the Board observes that the Veteran's claim for service connection for an acquired psychiatric disorder was previously considered and denied by the RO in a rating decision dated in October 2005. The Veteran was notified of that decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In June 2009, the Veteran essentially requested that his claim for service connection for an acquired psychiatric disorder be reopened. However, the rating decision currently on appeal denied reopening the claim because new and material evidence was not submitted. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claims in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). As noted above, the October 2005 rating decision denied the Veteran's claim for service connection for an acquired psychiatric disorder. In that decision, the RO found that the evidence failed to establish that an acquired psychiatric disorder was caused or aggravated by active service. The evidence of record at that time included the Veteran's service treatment records and post-service VA and private psychiatric treatment records. The evidence associated with the claims file subsequent to the October 2005 rating decision includes private medical records, VA medical records, a July 2010 VA examination report, and hearing testimony, as well as the Veteran's own assertions. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the October 2005 rating decision and finds that this evidence constitutes new and material evidence which is sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disorder. The majority of this evidence is certainly new, in that it was not previously of record. With regard to whether the evidence is material, the Board notes that private treatment records include a November 2009 letter from the Veteran's treating psychologist which indicates that the Veteran's acquired psychiatric disorder was caused by or incurred during active service. Therefore, the private treatment records relate to an unestablished fact necessary to substantiate the claim. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for an acquired psychiatric disorder. Initially, the Board concedes the Veteran has a current psychiatric disorder, diagnosed as schizophrenia, as found by the VA examiner in July 2010 and private examiner in October 2009. Although the July 2010 VA examiner opined that the Veteran's acquired psychiatric disorder was not related to his military service because his behavior in service is due to a separate diagnosable personality disorder, the Veteran's private psychologist, in an November 2009 letter and during his August 2011 testimony, determined that the Veteran's acquired psychiatric disorder was caused by the stressors of active duty military service and was evidenced by his behavior at that time. Therefore, there is at least an approximate balance of positive and negative evidence regarding the issue at hand, and the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current acquired psychiatric disorder was incurred in service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current acquired psychiatric disorder is related to his period of service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for an acquired psychiatric disorder is warranted, and the appeal is granted in full. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened, and service connection for an acquired psychiatric disorder is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs