Citation Nr: 1339906 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 12-12 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been presented to reopen a service connection claim for an acquired psychiatric disorder, diagnosed as schizophrenia (paranoid type) and psychotic disorder, not otherwise specified (NOS), and, if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1974 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) from a May 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that reopened and denied the Veteran's claim of service connection for mental condition. The RO has characterized the psychiatric disorder on appeal as psychotic disorder. However, the record shows that during the appeal period the Veteran has received several psychiatric diagnoses, including schizophrenia (paranoid type), psychotic disorder NOS, and depression. Claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Clemons v. Shinseki, 23 Vet. App. 1 (2010). Thus, the issue has been recharacterized as stated on the title page. The RO reopened the Veteran's claim and denied it on the merits in the May 2010 rating decision. However, prior to consideration of the Veteran's claim on the merits, the Board is required to consider the issue of finality, and as such, the issue has been characterized as shown on the title page. See 38 U.S.C.A. §§ 5108, 7104(b) (West 2002 & Supp. 2012); Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Subsequent to the statement of the case, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2013). Therefore, the Board may properly consider such newly received evidence Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an August 2006 rating decision, the RO denied the Veteran's claim of service connection for paranoid schizophrenia, claimed as mental condition. In a letter dated later that month, the RO notified him of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence received since the August 2006 rating decision is new and raises a possibility of substantiating the claim. 3. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder, diagnosed as schizophrenia (paranoid type) and psychotic disorder NOS, had its onset in service. CONCLUSIONS OF LAW 1. The unappealed August 2006 rating decision that denied service connection for paranoid schizophrenia, claimed as mental condition, is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. An acquired psychiatric disorder, diagnosed as schizophrenia (paranoid type) and psychotic disorder NOS, was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. I. Reopened claim The Veteran seeks to reopen his previously denied claim of service connection for acquired psychiatric disorder. A rating decision issued in August 2006 denied entitlement to service connection for paranoid schizophrenia, claimed as mental condition. The Veteran did not file a notice of disagreement with the August 2006 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the August 2006 rating decision became final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson, 265 F.3d at 1369. Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final rating decision. 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim "must be read as creating a low threshold." Id. at 117. In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered in the final August 2006 denial consisted of the Veteran's service treatment records (STRs), VA treatment records dated through July 2006, and lay statements from the Veteran. The basis of the final denial was the absence of evidence that the current disability occurred in or was caused by service. Since the August 2006 rating decision, new evidence added to the record consists of VA treatment records dated from November 2008 to May 2010; letters from VA psychiatrists and a VA psychologist; the report of an April 2010 VA examination; and lay statements from the Veteran. All of this evidence is new because it was not previously considered by agency decision makers. The new evidence includes medical opinions linking the Veteran's current schizophrenia to his military service. The absence of evidence that his current disability occurred in or was caused by service was the element of service connection upon which the prior denial was based. Accordingly, this positive nexus opinion evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim. It is therefore material and sufficient to reopen the previously-denied claim. Shade. The Board reopens the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as schizoaffective disorder (bipolar type), for a de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may also be shown by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of recurrent symptoms. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1110, 1111, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed acquired psychiatric disorder had its onset in service. The evidence shows that the Veteran has current diagnoses of schizophrenia (paranoid type) and psychotic disorder NOS. Specifically, VA treatment records show that in March 2001 he had a provision diagnosis of drug induced psychosis vs. psychosis NOS, and in June 2001 he was diagnosed with psychosis NOS rule out schizophrenia (paranoid type). Hospitalization notes from January 2005 show a discharge diagnosis of schizophrenia, chronic paranoid type, and state that he had been hospitalized for this condition 10 years prior. VA treatment records show that this diagnosis continued through at least August 2012. The April 2010 VA examiner diagnosed psychotic disorder NOS. The Board thus finds that the Veteran has a current disability of acquired psychiatric disorder, diagnosed as schizophrenia (paranoid type) and psychotic disorder NOS. STRs include a Report of Medical History made by the Veteran as part of his separation examination in October 1975. On that report, the Veteran endorsed "depression or excessive worry" and "nervous troubles of any sort." The Veteran has consistently reported experiencing great stress during service as the result of racial discrimination. The VA examiner found that it was as likely as not that the claims file showed evidence of racial discrimination. Namely, the word "Black" was written on top of one of his Article 15 forms, and the letter "B" was hand-written on the top of another. The Veteran has reported experiencing schizophrenic symptoms in service, including paranoia. The Veteran submitted statements from three VA medical personnel, Dr. B, Dr. D, and Dr. K. Dr. B, a VA psychologist, treated the Veteran when he was in an impatient program from April 2005 through July 2005. Dr. D is a VA psychiatrist familiar with the Veteran's treatment and medical history. Dr. K is a VA psychiatrist who treated the Veteran from June 2006 through at least August 2012. In November 2009 letters, Drs. B and D both pointed out that schizophrenia typically has its onset in late adolescence, around the time the Veteran was in the service. They both noted that the Veteran reported being under a great deal of stress while in the military, and stated that schizophrenia is usually triggered by environmental stress. Thus, they opined that "it is likely that [the Veteran] began experiencing symptoms of schizophrenia during his time in the military." In a July 2012 letter, Dr. B added that the Veteran's stress due to discrimination "would have triggered a psychotic episode." Dr. K. stated in November 2009 that schizophrenia "starts in late adolescence and physical and emotional stress can precipitate the symptoms of illness. In his case he felt he was discriminated [against for] being a black man, which was an additional stress on him during military service." In a second statement dated August 2012, she stated that she had reviewed the Veteran's STRs including the October 1975 report wherein the Veteran endorsed symptoms of nervousness and depression. She observed that the Veteran left service at the age of 23 and these symptoms (depression, nervousness of any sort) may be the early symptoms of paranoid schizophrenia "which started during his military service." The April 2010 VA examiner opined that the Veteran's "current mental health condition is less likely to have had its onset while in the military." His rationale was that the Veteran's STRs did not show treatment for psychosis. In service he had a drug-related diagnosis and the Veteran has admitted drug use in service. Thus the VA examiner diagnosed psychotic disorder NOS (paranoid features, late onset, possible substance abuse etiological factors). Each of these medical opinions is probative as they are supported by a clear rationale that cites to the Veteran's medical history and the record, though Drs. B and D did not review the STRs. In summary, the Veteran's two treating physicians Drs. B and K opined that his paranoid schizophrenia likely had its onset in service, as did non-treating psychiatrist Dr. D. The 2010 VA examiner related the Veteran's psychotic disorder to his drug use and not to service. There are three opinions suggesting a relationship between service and the current disability and one negative opinion. The Board finds that the medical evidence is at least in equipoise. Therefore, resolving reasonable doubt in favor of the Veteran, service connection is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, Gilbert. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. Service connection for an acquired psychiatric disorder, diagnosed as schizophrenia (paranoid type) and psychotic disorder NOS, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs