Citation Nr: 1339514 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 13-00 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD) (claimed as schizophrenia, paranoid type, organic delusional disorder, nervous disorder as a result of binary nerve gas exposure, and organic brain damage as a result of in-service head injury). REPRESENTATION Veteran represented by: Shannon K. Holstein, Esq. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1970 to April 1972 with subsequent service in the National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The RO denied the reopening of the claim on appeal. Before reaching the merits of the claim, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed the issue on the title page accordingly. During the course of the appeal, the evidentiary development has resulted in evidence showing psychiatric diagnoses of schizophrenia, major depression, and psychosis not otherwise specified (NOS). In light of the evidence of record and the decision in Clemmons v. Shinseki, 23 Vet. App. 1 (2009), the Board has characterized the issue on appeal to include all psychiatric diagnoses, other than PTSD. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system and the "Virtual Benefits Management System (VBMS)" to ensure a total review of the evidence. The issue of entitlement to service connection for PTSD has been raised by the record in an October 2012 private medical opinion, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The appeal of reopening service connection for schizophrenia, paranoid type, and organic delusional disorder was denied in an April 2005 rating decision; and the Veteran was notified of this action and of his appellate rights, but did not file a timely notice of disagreement. New and material evidence was not received within one year of the decision. 3. The evidence received since the April 2005 rating decision, regarding service connection for an acquired psychiatric disability, other than PTSD, is new and material. 4. The Veteran was initially diagnosed with schizophrenia after separation from service, and this disorder began during active service. CONCLUSIONS OF LAW 1. The April 2005 rating decision, that denied the reopening of service connection for schizophrenia, paranoid type, and organic delusional disorder, became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence has been received since the April 2005 rating decision to reopen service connection for acquired psychiatric disability, other than PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Resolving all reasonable doubt in the Veteran's favor, an acquired psychiatric disability, specifically schizophrenia, was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. New and Material Evidence In an April 2005 rating decision, the RO denied the reopening of service connection for schizophrenia, paranoid type, and organic delusional disorder because the new evidence received did not show a medical opinion, supported by medical rationale, that his traumatic brain injury is due to his service. The Veteran was notified of the April 2005 rating decision and of his appellate rights, but did not file a timely notice of disagreement. As a result, the Board finds that the rating decision became final for this claim on appeal. No new and material evidence was received within one year of the 2005 rating decision. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. A claim that has been previously denied may be reopened if new and material evidence is received with respect to that claim. If the claim is reopened, it will be reviewed on a de novo (new) basis, with consideration given to all the evidence of record. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273, 282 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). The evidence that is considered to determine whether new and material evidence has been received is the evidence submitted since the last final denial of the appellant's claim on any basis. Evans, 9 Vet. App. at 273. This evidence is presumed credible for the purposes of reopening the claim, unless it is inherently false or untrue, or if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992); see also Robinette v. Brown, 8 Vet. App. 69 (1995). New and material evidence can be neither cumulative (new material of the same kind) nor redundant (duplicate) 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); see Shade v. Shinseki, 24 Vet. App. 110 (2010) (finding that the language of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened). The evidence of record associated with the claims file since the April 2005 rating decision, pertaining to the claim on appeal, does not include relevant official service department records, and as noted, there was no evidence received prior to the expiration of the appeal period pertaining to this claim. Therefore, 38 C.F.R. § 3.156(b) and 38 C.F.R. § 3.156(c) are not applicable. The evidence received since the April 2005 rating decision, particularly an October 2012 private medical opinion, was not previously received submitted to VA. In this opinion, Dr. H. H. concluded the Veteran has a diagnosis of schizophrenia, paranoid type, based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. Following a review of the Veteran's service treatment records, service personnel records, VA psychiatric treatment records, and the claims file, he provided the following opinions, supported with rationale: (1) the Veteran's early symptoms of schizophrenia manifested during active duty, (2) it is more likely than not that the Veteran's schizophrenia is caused by or related to the exposure to DEHP in service and/or the incident when he was struck on the head with a tire iron in service, and (3) it is much more likely than not the Veteran began heavy substance use as a result of schizophrenia symptoms after service. Such evidence is pertinent to the element of a link between service and the current disability of an acquired psychiatric disability, other than PTSD, which was not established at the time of the April 2005 rating decision. Dr. H. H. also concluded the Veteran has a diagnosis of PTSD based on the DSM-IV criteria, and opined this diagnosis is related to the in-service incident of being hit over the head with a tire iron. He further noted that it is possible to differentiate some of the symptoms of the Veteran's diagnosed schizophrenia and PTSD. Hence, the Board has referred back the issue of service connection for PTSD on the title page accordingly. As a result, the Board finds that the newly received evidence, specifically the October 2012 private medical opinion is new and material. Having submitted new and material evidence, the service connection claim for an acquired psychiatric disability, other than PTSD, is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection Service connection may 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Service treatment records are silent as to any complaints, treatment, or diagnosis of schizophrenia. Approximately two year after separation from service, the Veteran's initial onset of schizophrenia, paranoid type, was diagnosed in September 1974. Subsequently, his diagnosis of schizophrenia has been confirmed by VA outpatient treatment records and the October 2012 private medical opinion. As discussed above, in the October 2012 private medical opinion, Dr. H. H. opined that the Veteran's early symptoms of schizophrenia manifested during active duty. He supported this opinion by noting an October 1971 service treatment record that documented the Veteran consulted a psychiatrist who recommended the Veteran be transferred to another job because his "present pattern will lead to serious psychotic complications undoubtedly necessitating hospitalization." Dr. H. H. interpreted this statement indicates the psychiatrist thought the Veteran's budding condition was much more serious than depression or situational adjustment disorder. Dr. H. H. further noted that within a month of separation from service in April 1972, the Veteran began to hear voices during his attempt to serve in the National Guard from June 1972 to December 1972. Such evidence is contemporaneously consistent with when the Veteran began to self-medicate through heavy drug use. In addition, he concluded that it is much more likely that the Veteran began heavy substance use as a result of his schizophrenic symptoms after his symptoms had already manifested in service or within the year after. The Board finds this opinion is adequate and of high probative value to show the Veteran's post-service diagnosis of schizophrenia was incurred in service. The private physician provided a sufficiently clear and well-reasoned rationale based on objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005); Miller v. West 11 Vet. App. 345, 348 (1998) (holding that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). Moreover, the medical opinion is based on an accurate factual history, clinical examination of the Veteran, and review of the Veteran's claims file, service treatment records, and service personnel records. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Throughout the years, numerous medical opinions have been provided against this claim. Rather than belabor the point, considering the rationale of Dr. H., the Board will resolve all reasonable doubt in the Veteran's favor, and conclude an acquired psychiatric disability, to include schizophrenia, was incurred in service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). Given the fully favorable decision discussed above for the issue on appeal, the Board finds that any concern regarding the timing or content of the Veterans Claims Assistance Act of 2000 (VCAA) notice provided to the Veteran is moot or represents harmless error. As to additional notice regarding the rating percentage and effective date to be assigned, the RO will address these matters in effectuating the award. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). ORDER New and material evidence has been received to reopen service connection for an acquired psychiatric disability, other than PTSD. Service connection for schizophrenia is granted. ______________________________________________ MICHELLE KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs