Citation Nr: 1334514 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-33 260 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence was received to reopen the claim of service connection for schizophrenia. 2. Entitlement to service connection for schizophrenia. 3. Entitlement to service connection for a psychiatric disorder other than schizophrenia. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: James Fausone, Attorney ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the RO. The RO's rating decision specifically dealt only with the issues of service connection for PTSD and sleep apnea. However, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for a particular psychiatric disorder encompasses all psychiatric disorders that may be productive of the Veteran's symptoms. Therefore, the issue has been expanded to include other psychiatric disorders. The Board notes that the Veteran's attorney specifically requested that the Veteran's claim be interpreted as encompassing the claim of service connection for schizophrenia that had previously been denied. The reopened claim of service connection for schizophrenia and the matters of service connection for another psychiatric disorder and sleep apnea are being remanded to the RO. FINDINGS OF FACT 1. The Veteran's claim of service connection for schizophrenia was previously denied in a rating decision in February 1998; he was notified of this decision and apprised of his appellate rights, but did not perfect a timely appeal. 2. The additional evidence received since the February 1998 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. New and Material Evidence In a February1998 rating decision, the RO denied the Veteran's claim of service connection for schizophrenia. The evidence considered at that time included the service treatment records and VA treatment records from 1987 through 1997. The Veteran did not file a timely Notice of Disagreement with this decision. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 un-established 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 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). In this case, the evidence received since the February 1998 rating decision includes (among other things) the most recent VA treatment records, written statements from the Veteran and his wife, and a May 2010 private medical opinion from a doctor indicating that the Veteran had an anxiety disorder since service that might may have preexisted his schizophrenia. The written statements from the Veteran also attest to unreasonable fears and unusual behaviors that he reports having had during service. He also provided information about events that caused him to experience mental distress in service. His wife indicated that the Veteran showed signs of "traumatic stress" and ulcers which were thought to be stress induced shortly after service. His attorney submitted internet articles about schizophrenia and stated in a letter that the Veteran's behavior in service might have indicated an early stage of schizophrenia. The VA treatment records have consistently shown a diagnosis of schizophrenia over many years. This evidence is new because it was not of record at the time of the prior rating decision. It is material because, when taken together with other evidence of record, it addresses an element of service connection which was missing at the time of the February 1998 rating decision, specifically, a nexus to service, and therefore raises a reasonable possibility of substantiating the Veteran's claim. Accordingly, on this record, the Board finds that new and material evidence has been submitted to reopen the claim. ORDER As new and material evidence has been submitted to reopen the claim of service connection for schizophrenia, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND Further development is required with respect to the Veteran's reopened claim. First, the Board notes that the Veteran reported to his treating providers that he is receiving Social Security Administration (SSA) disability benefits for his schizophrenia. These records have yet to be obtained. The Veteran reported having strange fears and behaviors during service, such as an unreasonable fear of his roommate and an inability to respond to verbal commands. He also reported having various traumatic incidents. Although the Veteran did not provide enough evidence about these incidents to enable verification, service personnel records such as enlisted performance reports (EPRs) may provide information relevant to determining whether these events actually occurred and/or whether behavior changes that could be indicative of psychiatric problems such as early schizophrenia began in service. The only personnel record in the claims file is the Record of Service. A complete copy of the Veteran's personnel file should be obtained and associated with the claims file. The Veteran submitted a letter in October 2007 from his primary care physician indicating that he had diagnosed the Veteran with PTSD and sleep apnea. However, no actual treatment records from this provider are in the claims file. The Board notes that this letter is the only evidence of a diagnosis of sleep apnea that is of record. The Veteran should be requested to provide a release to obtain all outstanding private treatment records. Additionally, the Veteran has not been provided with a VA examination to determine the nature and likely etiology of the claimed psychiatric disorder. The Veteran's primary care physician in this regard opined that the Veteran had PTSD as a result of in service experiences. Additionally, another doctor who reviewed the claims file opined that the Veteran had some type of anxiety disorder in service and this has continued to the present time. The Veteran's treatment providers diagnosed paranoid schizophrenia consistently during his many years of psychiatric treatment with VA. This is enough to satisfy the low standard for provision of a VA examination. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Similarly, the Veteran presented evidence that he was diagnosed with sleep apnea by his primary care physician and the Veteran's wife indicated that she noticed that the Veteran had problems with his sleep since shortly after service. This also satisfies the very low standard set forth in McClendon and a VA examination should be provided. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he provide an appropriate release to enable VA to obtain copies of his treatment records from Dr. V.S. If the Veteran provides the appropriate release, then these copies should be obtained. The Veteran should also be informed that he may submit a copy of these records himself. If the Veteran provides a proper release, but the private treatment records cannot be obtained by VA, the claims file should document the attempts made to obtain the records and the Veteran should be notified of VA's inability to obtain them. 2. The RO should also take all indicated action in order to obtain a copies of the Veteran's personnel file and associate them with the claims file. If these records no longer exist or otherwise cannot be obtained, the claims file should document the efforts that were made to obtain them and the Veteran should be notified of VA's inability to obtain them. 3. The RO then should take all indicated steps to obtain copies of the Veteran's SSA disability records. If these records no longer exist or otherwise cannot be obtained, then efforts to obtain these records should be documented in the claims file and the Veteran should be notified of VA's inability to obtain them. 4. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed psychiatric disorder. If PTSD is diagnosed, the examiner should identify the documented stressful event(s) during service that are implicated in the diagnosis. If a disorder other than PTSD is diagnosed, the examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the other psychiatric disability had its clinical onset during service or otherwise was due to an event or incident of the Veteran's service. If schizophrenia or another psychosis is diagnosed, the examiner should opine as to whether it is at least as likely as not (at least 50 percent likely) that that disability had its clinical onset during service or within one year thereafter. A complete rationale should be provided in the report of examination. This should include a discussion of the opinion that the Veteran suffers from PTSD that is related to service and the other one that he has an unspecified anxiety disorder related to service. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 5. The RO finally should have the Veteran scheduled for a VA examination to determine the Veteran nature and likely etiology of the claimed sleep apnea. Any necessary diagnostic tests should be performed. If sleep apnea is diagnosed, the examiner should opine as to whether it is at least as likely as not (at least 50 percent likely) that the sleep apnea had its clinical onset during service or otherwise is due to an event or incident of the Veteran's period of active service. A complete rationale for any opinion should be provided in the report of examination. If the examiner is unable to provide the requested opinion, he or she should explain why this is the case. 6. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L.WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs