Citation Nr: 1336067 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-09 024 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and a schizoid personality disorder with passive-dependent personality. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from October 1957 to February 1958. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the RO. 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. In an unappealed rating decision, dated in February 2004, the RO confirmed and continued its July 1993 decision which denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality. 2. Presumed credible, evidence associated with the record since the RO's February 2004 decision is either cumulative or redundant and, by itself or in connection with evidence previously assembled, does not relate to an unestablished fact or raise a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality. CONCLUSIONS OF LAW 1. The RO's February 2004 rating decision, which denied reopening of the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1993). 2. New and material evidence has not been submitted to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of his claim of entitlement to service connection for a psychiatric disorder, characterized as schizophrenia/schizoid personality disorder with passive-dependent personality. 38 U.S.C.A. §§ 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. § 3.159 (2013). In this case, the Board finds that VA has met that duty. A review of the record discloses that this is not the Veteran's first claim entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality. That claim was initially denied by the RO in July 1993. In February 2004, the VA confirmed and continued that denial, because the Veteran had not submitted new and material evidence to reopen the claim. The Veteran was notified of each of those decisions, as well as his appellate rights. However, he did not perfect an appeal to the Board. Therefore, those decisions became final under the law and regulations then in effect. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.1103 (1993). In April 2010, the Veteran filed an application to reopen his claim of entitlement to service connection for a psychiatric disorder, characterized as schizophrenia/ schizoid personality disorder with passive-dependent personality. The following month, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. In addition, VA informed the Veteran of the bases for the prior denials and advised him of the evidence necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting his VA treatment from May 1999 through July 2012; a March 2010 report from the Army Board of Correction for Military Records, and the transcript of a July 2012 hearing held at the RO before a VA Decision Review Officer. The Veteran has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. Accordingly, the Board will proceed to determine whether or not new and material evidence has been received to reopen claim of entitlement to service connection for a psychiatric disorder, characterized as schizophrenia/schizoid personality disorder with passive-dependent personality. Analysis Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection is warranted for a disability when there is competent evidence of current disability (generally, a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In February 2004 the evidence consisted of the Veteran's service treatment records and records reflecting his VA treatment from September 2002 through June 2003. It showed that in service in January 1958, the Veteran reported that since Basic Combat Training, he had felt strange and had felt that he was being followed. He also reported "illusions" and that he heard strange sounds at night, like bunks squeaking and dog tags rattling. The differential impressions were paranoid personality versus an early schizophrenic process and acute anxiety. Thereafter, he was admitted to the hospital where a 7-week workup showed a schizoid personality manifested by seclusiveness, unrealistic thoughts and ineffectiveness. The precipitating stress was routine military duty, and the predisposition was a preservice passive dependent personality disorder. Although the Veteran was found to be in balance and in contact during his hospitalization, the psychiatric health care provider opined that if the Veteran was to remain in the service, he would breakdown and become psychotic. Therefore, he was medically separated from the service and given a General Discharge due to a chronic, moderate schizoid personality and a moderate passive dependent personality. In February 2004, as now, personality disorders were not considered diseases within the meaning of the law and regulations governing service connection. 38 C.F.R. § 3.303(c). However, evidence of additional disability resulting from a mental disorder that was superimposed upon and aggravated a congenital disease such as a personality disorder or mental deficiency during service could be service-connected. 38 C.F.R. §§ 3.303(c) , 4.9, 4.127; VAOPGCPREC 82-90; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In the Veteran's case, there was no evidence of a superimposed disease or injury or additional disability. Absent evidence of a psychiatric disorder other than a personality disorder in service and absent evidence that the personality disorder had been aggravated by a superimposed disease or injury in service, service connection was denied. As noted above, that decision became final. Generally, a claim which has been denied by the RO may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105. 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 which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to VA 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. If new and material evidence is presented, the Board may then proceed to evaluate the merits of the claim but only after insuring that the duty to assist the Veteran in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Evidence added to the record since the RO's February 2004 decision consists of records reflecting the Veteran's VA treatment from May 1999 through July 2012; a March 2010 report from the Army Board of Correction for Military Records, and the transcript of a July 2012 hearing held at the RO before a VA Decision Review Officer. During his hearing, the Veteran testified that he had not had any psychiatric problems prior to service but that he began to experience a lack of focus and hallucinations in service. He further stated that they started getting worse after service. The Veteran has not submitted new and material evidence and his application to reopen the claim will be denied. The Veteran is competent to testify about what he experienced during and since the conclusion of his service. For example, he is competent to report that he began to have hallucinations in service and that he has continued to experience them since his separation from service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Federal Circuit Court discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Although the Veteran argues that his current psychiatric disorder was first manifested in service, the question of whether a current disorder may be related to the inservice disorder involves a medical issue. The question of etiology may not be competently addressed by lay evidence. See Davidson, 581 F.3d at 1316. The decision of the service department discharge review board and continuing records of VA treatment are new because they have not previously been before the VA. However, the newly-submitted evidence is not material because it does not relate to unestablished facts necessary to substantiate the claim. 38 C.F.R. § 3.156(a). Continuing care records without evidence of etiology are not material to the question of aggravation or pre-existence of any disorder. See Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of a claimant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). Although the service department review board recharacterized the Veteran's service as honorable, the review board report indicates that there was no evidence, other than that previously before VA, which altered the service department's original findings. The mere fact that the service department recharacterized the Veteran's discharge is not material to the question of any pre-existence or aggravation of his disorder. While the additional evidence shows that the Veteran has a current diagnosis of anxiety, there remains no evidence of a chronic, identifiable psychiatric disorder in service other than the noted personality disorders. Moreover, there remains no evidence that the personality disorders noted in service were aggravated by a superimposed disease or injury in service. The additional evidence is cumulative or redundant of that on file in February 2004. Even when considered with the evidence previously of record, it does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and schizoid personality disorder with passive-dependent personality. Because it is not new and material, the additional evidence does not meet the criteria to reopen the claim. Accordingly, the appeal is denied. ORDER New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for a psychiatric disorder, claimed as schizophrenia and a schizoid personality disorder with passive-dependent personality is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs