Citation Nr: 1340291 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-30 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. By a decision below, a previously denied claim of service connection for paranoid schizophrenia is reopened. The underlying claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A July 1998 rating decision denied entitlement to service connection for "schizophrenia: anxiety, with weight loss;" the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 2. A January 2002 rating decision declined to reopen the Veteran's claim of entitlement to service connection for "schizophrenia, anxiety with weight loss;" the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 3. A September 2005 rating decision declined to reopen the Veteran's claim of entitlement to service connection for "schizophrenia (anxiety with weight loss);" the Veteran did not appeal that decision in a timely manner, and no new and material evidence was submitted within the appeal period. 4. Evidence received since the time of the final September 2005 rating decision raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for paranoid schizophrenia. CONCLUSIONS OF LAW 1. The September 2005, which declined to reopen the Veteran's claim of entitlement to service connection for schizophrenia (anxiety with weight loss) rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). 2. Evidence received since the final September 2005 denial with respect to the claim of entitlement to service connection for paranoid schizophrenia is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing service connection generally requires 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (West 2002); Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. 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) (2013). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Even if no appeal is filed, a rating decision is not final if new and material evidence is submitted within the appeal period and has not yet been considered by VA. 38 C.F.R. § 3.156(b); Bond v. Shinseki , 659 F.3d 1362 (Fed. Cir. 2011). In this case, the Veteran did not submit any new and material evidence within the year following a July 1998 rating decision, a January 2002 rating decision, or a September 2005 rating decision, nor did he file a timely appeal to those decisions. These rating decisions denied the Veteran's claim and subsequent attempts to reopen the claim. The September 2005 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). Here, the Board must first decide whether new and material evidence has been received to reopen the Veteran's claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the September 2005 rating decision is the last final disallowance with respect to the claim, the Board must review all of the evidence submitted since then to determine whether the Veteran's claim of service connection for paranoid schizophrenia should be reopened and readjudicated on a de novo basis. In its initial July 1998 rating decision, the RO denied entitlement to service connection for "schizophrenia: anxiety, with weight loss" on the basis that there was no evidence of the disorder in service. Thus, in order for the Veteran's claim to be reopened, new evidence must have been added to the record since the September 2005 rating decision that addresses this basis. Relevant evidence obtained since the September 2005 rating decision includes VA treatment records, the report of a May 2009 VA mental disorders examination, and the report of an April 2011 VA Gulf War guidelines examination. The VA treatment records contain diagnoses of depressive disorder, schizophrenia, and posttraumatic stress disorder. The report of the May 2009 VA mental disorders examination diagnosed the Veteran as having schizophrenia, paranoid type, and opined that this disorder was not at least likely as not due to his military service because he was not diagnosed as having paranoid schizophrenia during military service or within one year following discharge from service. Moreover, the May 2009 VA examination report acknowledged that the Veteran's "long history of legal involvement" began during his military service, but opined that his diagnoses of personality disorder with antisocial traits or adjustment disorder secondary to ethanol alcohol abuse did not appear to be precursors to his current schizophrenia. However, although the April 2011 VA Gulf War guidelines examination report indicated that it was unlikely that the Veteran's "psychotic spectrum disorder" was caused by exposure to environmental hazards in the Gulf War, it opined that it was "clear that his psychiatric disturbance started while he was in the military, that is as least as likely [as] not the stress of Desert Storm was a precipitating event for the onset of psychosis." This evidence is both "new," as it had not been previously considered by VA, and it is "material" as it addresses the basis on which the Veteran's claim was previously denied, i.e., the in-service onset of psychiatric symptomatology. As new and material evidence to reopen a finally disallowed claim has been submitted, the claim is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The underlying service connection claim is addressed further in the remand section. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for paranoid schizophrenia is reopened; to this limited extent, the appeal is granted. REMAND The Board finds that a remand is necessary for further development. First, it appears that there are additional documents relevant to Veteran's VA claim that are not currently associated with the paper claims file before the Board or his Virtual VA electronic claims file. For instance, Virtual VA contains rating decisions by the RO dated in March 2012 and October 2013 which reference numerous documents, to include correspondence to and from the Veteran, which do not appear to be associated with the physical claims file and/or uploaded to Virtual VA. Additionally, the most recent statement of the case is dated in June 2009, and there has been new, relevant evidence associated with the claims file since that time, suggesting that a subsequent supplemental statement of the case is or should have been issued. See 38 C.F.R. § 19.31 (2013). Next, in his June 2009 substantive appeal as well as in subsequent correspondence dated in December 2010, the Veteran indicated that he wanted to testify at a Central Office hearing before the Board. However, there is no further mention of the requested hearing in the claims file, to include correspondence from the Veteran dated in September 2013 and his representative's November 2013 Written Brief Presentation. As such, the Board is uncertain as to whether the Veteran still desires a Board hearing, or whether he withdrew his request for a hearing in a document that is not currently associated with the claims file. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Additionally, a decision is to be made on a complete record. The evidence referred to in the March 2012 and October 2013 rating decisions, including any temporary claims file, must be made a part of the paper claims file or be associated with the Virtual VA electronic claims file. In addition, the Veteran submitted correspondence dated in June 2004 indicating that he was eligible to receive Supplemental Security Income payments from the Social Security Administration (SSA). The Veteran's claims file, however, does not contain complete records related to such an award. This matter should therefore also be remanded so that any records related to an award of SSA benefits can be associated with the Veteran's claims file. See 38 C.F.R. § 3.159(c)(2) (2013) (when attempting to obtain records in the custody of a Federal department or agency, including the SSA, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Finally, the Board finds that the Veteran must be provided with another VA mental disorders examination before his claim can be adjudicated on the merits. As discussed above, the report of the May 2009 VA mental disorders examination diagnosed the Veteran as having schizophrenia, paranoid type, and opined that this disorder was not at least likely as not due to his military service because he was not diagnosed as having paranoid schizophrenia during military service or within one year following discharge from service. However, this examination report failed to address the diagnoses of depressive disorder and posttraumatic stress disorder contained in the Veteran's VA treatment records, as well as previous diagnoses of personality disorder. The Board notes that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, the report of the April 2011 VA Gulf War guidelines examination indicated that it was "clear that his psychiatric disturbance started while he was in the military, that is as least as likely [as] not the stress of Desert Storm was a precipitating event for the onset of psychosis." Although this opinion provides a nexus to service, it is unclear which of the Veteran's various diagnosed psychiatric disability(ies) are being referred to by the examiner. As such, the claim must be remanded for another medical examination and opinion, as the May 2009 and April 2011 VA examination reports present conflicting opinions and are not wholly adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (if VA provides the Veteran with an examination or an opinion in a service connection claim, the examination must be adequate). Accordingly, the case is REMANDED for the following actions: 1. Locate and associate with the claims file any temporary folders that are being maintained at the RO or the AMC on behalf of the Veteran. Associate the evidence referenced in the March 2012 and October 2013 rating decisions with the claims file. 2. Ask the Veteran to identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability, and obtain the identified records. This should specifically include updated VA treatment records from the VA Spartanburg Community-Based Outpatient Clinic (CBOC) in Spartanburg, South Carolina, dated from January 2013 to the present. If the Veteran fails to provide any needed authorizations, inform him that he may submit the records himself. If any requested records are not available, or if the search for any such records otherwise yields negative results, the Veteran should be informed, told of the efforts made to obtain the records, and of any further actions that will be taken with regard to his claims. 3. Request from the SSA complete copies of any disability determination(s) it has made concerning the Veteran, as well as copies of the medical records that served as the basis for any such decision(s). If any requested records are not available, or if the search for any such records otherwise yields negative results, the Veteran should be informed, told of the efforts made to obtain the records, and of any further actions that will be taken with regard to his claims. 4. Thereafter, schedule the Veteran for a VA examination to evaluate his claim for entitlement to service connection for paranoid schizophrenia. A copy of the claims file, any pertinent records in the Virtual VA system, and this remand must be made available to the examiner in conjunction with the examination. Based on a review of the claims file and the examination findings, including the service treatment records, service personnel records, private treatment reports, and VA records, the examiner should provide any relevant psychiatric diagnoses pertaining to the claim. In doing so, the examiner is asked to address each of the previous diagnoses, to include personality disorder with antisocial traits, adjustment disorder secondary to ethanol alcohol abuse, paranoid schizophrenia, depressive disorder, and posttraumatic stress disorder, and opine as to whether they have since resolved, have continued to manifest as separate and distinct disorders, or have caused and/or aggravated the Veteran's current psychiatric symptomatology. The examiner should directly address the etiological relationship (e.g., causation), if any, between the Veteran's currently-diagnosed psychiatric disability(ies) and his period of active duty service, as well as the etiological relationship, if any, between the documented diagnoses of personality disorder with antisocial traits or adjustment disorder secondary to ethanol alcohol abuse and his currently-diagnosed psychiatric disability(ies). The claims file and any relevant files in the Virtual VA system must be made available to and reviewed by the examiner in conjunction with the examination. Specifically, the examiner is asked to comment on the April 2011 VA examiner's opinion that it was "clear that his psychiatric disturbance started while he was in the military, that is as least as likely [as] not the stress of Desert Storm was a precipitating event for the onset of psychosis." Appropriate testing should be conducted, and the results reviewed, prior to the final opinion. The examiner should describe all findings in detail and explain the rationale for any conclusions reached. It would be helpful if the examiner uses the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50 percent), "at least as likely as not" (meaning likelihood of at least 50 percent), or "less likely than not" or "unlikely" (meaning that there is a less than 50 percent likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 5. Then, when the development requested has been completed, the claim should be reviewed by the RO on the basis of additional evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond. 5. Finally, contact the Veteran and his representative and request that clarification be made as to whether the Veteran still desires to testify at a Board hearing, and, if so, to specify the type of hearing desired by the Veteran (Travel Board hearing, videoconference hearing, Central Office hearing). Thereafter, schedule the Veteran for a Board hearing, if appropriate. If no hearing is requested, return the claims file to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs