Citation Nr: 1337043 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-25 533 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim of service connection for schizophrenia. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from July 28, 1975, to October 20, 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Service connection for schizophrenia was denied by the Board in October 1978 on the basis that neither schizophrenia nor any other psychiatric disorder was shown to have manifested in service, and because the Veteran had less than 90 days of active duty thereby precluding presumptive service connection. 2. In an unappealed February 2007 decision, the RO declined to reopen the claim for entitlement to service connection for schizophrenia on the basis that new and material evidence had not been submitted. 3. Evidence received since the February 2007 rating decision is new, but does not relate to any unestablished facts necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim or trigger the duty to assist by providing a medical examination. CONCLUSION OF LAW The criteria for reopening a previously denied claim of service connection for schizophrenia have not been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A June 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). A VA examination was not conducted. Under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. §3.159(c)(4)(iii). As new and material evidence has not been presented to reopen the claim of service connection for schizophrenia, a VA examination or medical opinion is not required. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486 New and Material Evidence Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Veteran. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 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(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). To establish service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence or aggravation of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. All three elements must be established by competent and credible evidence in order to establish service connection. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases, if the disease is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. § 1137; 38 C.F.R. §§ 3.307, 3.309. For the conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), such as psychoses, the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for schizophrenia was initially denied in an April 1978 rating decision on the basis that schizophrenia was not incurred in or aggravated by service and the Veteran did not have 90 days of active service. The Veteran appealed this decision. A Board decision issued in October 1978 confirmed the denial on the basis that neither schizophrenia nor any other psychiatric disorder was shown to have manifested in service. The Board also explained that the Veteran was not entitled to service connection based on the chronic disease presumption because he had less than 90 days of active duty. The October 1978 Board decision became final when issued. 38 C.F.R. § 20.1100 (2013). The Veteran attempted to reopen his claim for schizophrenia in October 1998. In a rating decision issued in December 1999, the RO declined to reopen the claim. The Veteran appealed this decision. In May 2001 the Board remanded the claim to the RO for additional development. In February 2003, after the development was completed, the Board confirmed the RO's decision and declined to reopen the claim on the basis that new and material evidence had not been submitted. The February 2003 Board decision became final when issued. 38 C.F.R. § 20.1100 (2013). In June 2003 the Veteran expressed disagreement with the Board's decision, and in January 2004, he submitted a Motion for Reconsideration. The Motion for Reconsideration was denied in March 2004. The Veteran attempted to reopen his claim in November 2006. In a rating decision issued in February 2007, the RO declined to reopen the claim on the basis that new and material evidence had not been submitted. The Veteran was notified of the adverse determination and of his procedural and appellate rights, but he did not appeal the rating decision and no new and material evidence was submitted within the applicable appeal period. By operation of law, the February 2007 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 3.156(b). The RO received the instant petition to reopen the claim in March 2010. At the time of the last final rating decision in February 2007, the evidence of record consisted of the Veteran's DD Form 214, service treatment records, a December 1975 letter from Dr. Jurilla, the results of a November 1975 psychologic evaluation report, an August 1977 medical report from the National Mental Hospital, a January 1978 medical report from the National Mental Hospital, a June 1979 medical certificate from the Mariveles Mental Hospital, a June 1979 statement from Dr. Gamez, an October 1998 medical certificate from Dr. Reyes, a January 1999 psychiatric report from the Mariveles Mental Ward, a February 2000 Clinical History from the Mariveles Mental Ward, a March 2000 statement from Dr. Jurilla, a January 2001 substantive appeal (VA Form 9), a May 2002 certification from the National Personnel Records Center, and affidavits from A.P., V.B., and R.N. dated in June 2003. The Veteran's DD Form 214 showed he had active service for 2 months and 23 days, from July 28, 1975, to October 20, 1975. The service treatment records were negative for any diagnosis or treatment for schizophrenia or other psychiatric disorder upon enlistment, during service, and upon separation. The December 1975 letter from Dr. Jurilla contained a statement that he saw the Veteran in October 1975, November 1975, and December 1975. Dr. Jurilla suspected the Veteran had a thinking disorder and placed him on neuroleptics. The November 1975 psychologic evaluation report showed a clinical impression of transient situational disorder with marked depression. The August 1977 medical report from the National Mental Hospital showed the Veteran was admitted for sleeplessness, restlessness, wandering aimlessly, suspiciousness, and destructiveness. Upon discharge, he was diagnosed with schizophrenia. The January 1978 medical report from the National Mental Hospital showed the Veteran had been treated between January 1976 and August 1977 and was diagnosed with schizophrenia. The June 1979 medical certificate from the Mariveles Mental Hospital showed the Veteran had been readmitted in March 1979 due to a relapse of his schizophrenia. The June 1979 statement from Dr. Gamez certified that he had treated the Veteran for schizophrenia since December 1978. The October 1998 medical certificate from Dr. Reyes certified that the Veteran had been admitted to the Mariveles Mental Ward since March 1998 with a diagnosis of schizophrenia, paranoid type. The January 1999 psychiatric report from the Mariveles Mental Ward showed the Veteran was treated for schizophrenia beginning in August 1977 and had been readmitted on several occasions up through December 1997. The February 2000 Clinical History from the Mariveles Mental Ward provided details of the Veteran's inpatient treatment for schizophrenia in March 1998. The March 2000 statement from Dr. Jurilla certified that he had prescribed Haloperidol (also known as Serenace) in November 1975, but his records from 1975 could not be located. The January 2001 substantive appeal (VA Form 9) submitted by the Veteran's father on his behalf, contained the assertion that the Veteran's schizophrenia had manifested in service. The Veteran's father also asserted that since the Veteran was seen in December 1975 within a year of service, presumptive service connection was warranted. The May 2002 certification from the National Personnel Records Center certified that the Veteran was only authorized one day of travel time upon separation. This one day of authorized travel time awarded to the Veteran at discharge brought the total number of days of active service to 86. The June 2003 affidavits from A.P., V.B., and R.N. contained these individuals testimony that when the Veteran returned home from military service his mental state had changed. Since the last final rating decision in February 2007, the evidence includes a June 2010 affidavit from the Veteran's father, medical records from the Department of Health, Regional Health Office in Mariveles, Batan, dated from August 1998 to June 2010; an August 2010 clinical case summary from the Mariveles Mental Hospital, written argument dated in September 2010 and in November 2010 submitted by the Veteran's father, and witness statements from R. V. and J. L. dated in December 2010. The June 2010 affidavit from the Veteran's father contains the father's testimony that during training the Veteran became mentally ill and he has been confined in the hospital since 1998. The medical records from the Department of Health, Regional Health Office in Mariveles, Batan show the Veteran was treated for schizophrenia from 1998 to 2010. The August 2010 clinical case summary from the Mariveles Mental Hospital indicates that the Veteran was sent home from military training in 1975 because of poor sleep, restlessness, and suspicious behavior. The summary also indicated that the Veteran was admitted to the Mariveles Mental Hospital for the first time in August 1977 and had multiple relapses between March 1979 and the present. His diagnosis was schizophrenia, paranoid type. The written argument dated in September 2010 and in November 2010 submitted by the Veteran's father contains his assertion that the Veteran developed schizophrenia during service or within one year of discharge. He also asserted that the Veteran should have been allowed a period of 5 days travel time to return to the Philippines and thus should have earned a total of 93 days of service, and that calendar days in the US and the Philippines differ by one day. The December 2010 statement from R. V. contains his testimony that when he flew from the Travis Air Force Base to Clark Air Force Base in the Philippines, it took a total of 7 days. The December 2010 statement from J. L. contains his testimony that when he flew from the Travis Air Force Base to Clark Air Force Base in the Philippines, it took a minimum of 5 to 7 days. With the exception of the June 2010 affidavit and the August 2010 clinical case summary from the Mariveles Mental Hospital, the evidence received since the last final rating decision is new, as it was not previously considered the RO. The June 2010 affidavit and the August 2010 clinical case summary from the Mariveles Mental Hospital contain evidence and argument that is cumulative and/or redundant of evidence and argument that was previously submitted and considered by the RO at the time of the February 2007 rating decision. The assertions by the Veteran's father that schizophrenia manifested in service or within a year of discharge, as contained in his September 2010 and November 2010 written statements, are also cumulative and redundant of argument previously submitted and considered by the RO at the time of the February 2007 rating decision. None of the newly submitted evidence is material. The lack of evidence demonstrating schizophrenia had manifested in service or was causally related to service, and the lack of evidence showing that the Veteran had at least 90 days of active duty was the basis for the last denial of the claim. Therefore, any new evidence must relate to these unestablished facts and/or at least trigger the duty to assist by providing a medical opinion. See 38 C.F.R. § 3.303 (2012); see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). None of the evidence received since the February 2007 rating decision shows schizophrenia was incurred in service or is otherwise related to service. The medical records from the Department of Health, Regional Health Office in Mariveles, Batan only show treatment for schizophrenia years after service. In addition, none of the evidence shows the Veteran had at least 90 days of active duty such that he would possibly be entitled to a presumption of in-service incurrence of schizophrenia as a chronic disease. Although the Veteran's father argues that the Veteran had more than 90 days of active service because of the travel time between the continental United States to Philippines, and although the two witness assert that it took them at least 5 to 7 days to travel from the continental United States to Philippines, the findings of the U.S. service department through the NPRC are binding on VA for the purpose of establishing the Veteran's period of active duty in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530 (1992). The Veteran has provided no further evidence or information that would warrant a request for recertification from a U.S. service department. New and material evidence has not been received to reopen the claim for service connection for schizophrenia. Reopening of the claim is not warranted. ORDER New and material evidence has not been submitted; the claim for entitlement to service connection for schizophrenia is not reopened. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs