Citation Nr: 1332083 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-25 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for paranoid schizophrenia has been received. 2. Entitlement to service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from February 1986 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which last denied service connection for paranoid schizophrenia ultimately on the basis that no new and material evidence had been received to reopen a previously denied claim that had become final. By way of history, the Board notes that a September 2002 rating decision initially denied service connection for paranoid schizophrenia on the merits. Subsequently, a January 2006 rating decision declined reopening the claim, finding no new and material evidence had been received. No timely Notice of Disagreement was filed, therefore the January 2006 decision became final. The Veteran submitted the current claim to reopen in March 2008. Later, the aforementioned July 2008 rating decision was issued. The Veteran filed a timely Notice of Disagreement in August 2008, and a Statement of the Case was issued in July 2009 denying service connection, finding that no new and material evidence had been received. Consequently, the Board will review the issue of whether new and material evidence has been received. Given the favorable disposition of the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for paranoid schizophrenia, the issue will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In September 2002, the RO denied the Veteran's claim of entitlement to service connection for paranoid schizophrenia, finding that no evidence had been presented to establish that a causal relationship exists between the Veteran's paranoid schizophrenia and his active service. In a January 2006 rating decision, the RO determined that the requisite new and material evidence had not been received to reopen the veteran's previously denied claim for entitlement to service connection for paranoid schizophrenia. The Veteran was notified of the adverse determinations and of his procedural and appellate rights, but did not appeal either decision. 2. The additional evidence presented since the January 2006 rating decision is new, and when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for paranoid schizophrenia and raises a reasonable possibility of substantiating the claim of entitlement to service connection for paranoid schizophrenia. CONCLUSION OF LAW 1. Evidence received since the January 2006 rating decision in relation to the Veteran's claim for entitlement to service connection for paranoid schizophrenia is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§5108, 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. § 3.104, 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed in more detail below, sufficient evidence is of record to grant the application to reopen the Veteran's claim for entitlement to service connection for paranoid schizophrenia. Thus, any errors in complying with the notice or assistance requirements with respect to this matter are moot. The claim on the merits requires additional development, which is addressed in the remand below. New and Material Evidence In September 2002, the Board denied the Veteran's claim of entitlement to service connection for paranoid schizophrenia, finding that no evidence had been presented to establish that a causal relationship exists between the veteran's paranoid schizophrenia and his active service. In a January 2006 rating decision, the RO determined that the requisite new and material evidence had not been received to reopen the Veteran's previously denied claim for entitlement to service connection for paranoid schizophrenia. The Veteran was notified of the adverse determinations and of his procedural and appellate rights, but did not appeal either decision. The evidence considered by the RO in 2002 consisted of service treatment records that were negative for any complaints, treatment, or diagnosis of paranoid schizophrenia, a VA examination dated in May 2002 diagnosing chronic paranoid schizophrenia, and VA post-service outpatient treatment records from September 1998 through May 2002 showing ongoing treatment for paranoid schizophrenia. The basis for the denial was that no competent medical evidence had been presented to establish that a casual relationship exists between the Veteran's current paranoid schizophrenia disability and his active military service. The new evidence considered by the RO in the January 2006 rating decision, consisted of updated medical treatment records from the Bronx VAMC through December 2003 and medical treatment records from a mental health facility in Yanceyville, NC documenting treatment for paranoid schizophrenia. The basis for the denial was that the new and material evidence was cumulative and redundant because the prior evidence had already established that the Veteran suffers from paranoid schizophrenia. The Veteran was provided notice of that decision in January 2006 but did not submit a Notice of Disagreement within one year of that notice. An application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction, becomes final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d) (2012). An RO determination as to whether evidence is "new and material" for purposes of reopening is subject to de novo adjudication by the Board. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In order to reopen a claim there must be added to the record "new and material evidence." 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). The credibility of the evidence is presumed for the purpose of reopening. Justus v. Principi, 3 Vet. App. 510 (1992). Under 38 C.F.R. § 3.156(a), as amended, 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In March 2008, the current claim to reopen was received by the RO. The prior denials of the claim had been essentially based upon the finding that there was no evidence submitted that the claimed paranoid schizophrenia was related in any way to the Veteran's military service. Accordingly, for evidence to be new and material in this matter, it would have to tend to show that the Veteran's current paranoid schizophrenia is linked to an in-service injury or disease. The additional evidence received since the January 2006 rating decision includes a June 2009 letter from Dr. W, a psychiatrist from a mental health facility in Yanceyville, NC, stating that in her opinion, the Veteran's illness "must have affected his ability to perform his military tasks at times, and in particular was the direct cause of his poor job performance in the National Guard." Assuming its credibility, this evidence received since the January 2006 denial is neither cumulative nor redundant, and by itself, and in particular when viewed in connection with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for paranoid schizophrenia. The Board finds that the noted evidence received subsequent to the RO's January 2006 rating decision denial is new and material as it provides medical evidence that the current paranoid schizophrenia are related to the veteran's service. As a result, the requirements to reopen the claim of entitlement to service connection for migraine headaches have been met. Accordingly, the veteran's claim is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159, 3.304 (2012). ORDER New and material evidence having been received, the claim for entitlement to service connection for paranoid schizophrenia is reopened; the appeal is granted to this extent only. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits can be reached for the issue of entitlement to service connection for paranoid schizophrenia. The Board notes that the duty to assist required under the VCAA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In McLendon v. Nicholson, the Court held that the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As to the Veteran's paranoid schizophrenia claim, there now exists competent and credible medical evidence of record indicating a possibility that the Veteran's current diagnosis of paranoid schizophrenia could be related to his military service. Specifically, a June 2009 letter from Dr. W, a psychiatrist from the mental health facility in Yanceyville, NC, stated that in her opinion, the Veteran's illness "must have affected his ability to perform his military tasks at times, and in particular was the direct cause of his poor job performance in the National Guard." However, Dr. W did not provide an opinion or rationale as to the etiology of the Veteran's paranoid schizophrenia. Given such, the Board concludes that a VA examination or evaluation to determine the nature and etiology of the Veteran's paranoid schizophrenia is warranted prior to the adjudication of this claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination or evaluation with a licensed psychiatrist skilled in the treatment and diagnosis of psychiatric disorders. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, conducting a physical examination, and obtaining all appropriate diagnostic tests, the examiner should render an opinion as to whether it is at least as likely as not that any diagnosed paranoid schizophrenia psychiatric disability was incurred in or otherwise related to the Veteran's military service. In that regard, the examiner is requested to specifically consider, and discuss as necessary, the June 2009 letter from Dr. W. The examiner should use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner cannot render a requested opinion without resorting to speculation, the examiner must provide the reasoning for that determination. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large or those of the particular examiner. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. AFTER COMPLETION OF THE ABOVE, readjudicate the Veteran's claim for entitlement to service connection for paranoid schizophrenia. If the benefit sought remains denied denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs