Citation Nr: 1340899 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 04-24 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Jonathan Greene, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran had active service from January 1980 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California, that in pertinent part, denied the above claim. In April 2003, the Veteran testified before a local hearing officer; a transcript of this hearing is associated with the claims file. This matter was previously before the Board in September 2006 and in July 2009 at which time it was remanded for additional development. In March 2011, the Board denied the Veteran's claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2012, the Court granted the parties' Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. In July 2012, the Board again remanded the claim for additional development. It is now returned to the Board and is ready for further review. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The October 2000 rating decision which denied the claim of entitlement to service connection for schizophrenia was not appealed. 2. Evidence received since the October 2000 rating decision relates to an unestablished fact necessary to substantiate the Veteran's claim, and the claim is reopened. 3. Resolving all reasonable doubt in the Veteran's favor, a psychiatric disorder is related to active service. CONCLUSIONS OF LAW 1. The October 2000 rating decision denying service connection for schizophrenia is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302 (2013). 2. New and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, as to the issue decided below, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Reopening Service Connection for a Psychiatric Disorder Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, to include psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran asserts that he currently has a psychiatric disorder that is manifested as a result of his period of active service. Because the Veteran did not submit a notice of disagreement to the October 2000 rating decision, that determination became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302 (2013). If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, 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. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the 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. at 118. 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 record demonstrates that the Veteran was denied service connection for a nervous disorder in August 1988 because there was no evidence of a psychiatric disorder during service. The Veteran did not appeal the decision. In June 1991 and March 1994, the RO determined that new and material evidence had not been submitted to reopen claims for a nervous disorder and a psychiatric disorder, because there was still no evidence of this disorder during active service. The Veteran did not appeal these decisions. Finally, the RO determined that the Veteran had not submitted new and material evidence to reopen a claim for schizophrenia in October 2000, because there was no evidence of a psychiatric disorder during active service or any evidence relating the Veteran's psychiatric disorder to active service. Again, the Veteran did not submit a notice of disagreement within one year of the October 2000 decision. No relevant evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); cf. 38 C.F.R. § 3.156(b) (2013) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). Since the most recent denial of October 2000, the Veteran has submitted copies of private medical records and VA outpatient and inpatient treatment records dating back to 1985. Also submitted are records from the Social Security Administration, lay statements from the Veteran's mother and sister, and hearing testimony dated in 2003. While some of the records are cumulative or duplicative, there is in the file evidence that is new and material to this claim. Specifically, there is a March 2013 letter from the Veteran's mother, indicating that she witnessed psychotic symptoms in the Veteran within six months after his discharge, including delusional behaviors, poor hygiene, feeling others were after him and sleeplessness. There is also a private clinical record dated in February and March 2013 in which the examiner stated the Veteran had schizoaffective disorder that had manifested itself within one year of being discharged from service, and that it more likely than not started manifesting itself while he was in service. Additionally, there is a VA examiner's addendum opinion dated in September 2013 in which he states that he was in agreement with the private examiner that the Veteran's chronic psychiatric illness manifested within one year of discharge and indeed predated his discharge. This evidence is new and material because they indicate a relationship between the Veteran's psychiatric disorder and his period of active service. The above evidence bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the Veteran's claim of service connection for a psychiatric disorder. Therefore, the claim is reopened. Having reopened the Veteran's claim, the Board will now address the issue of service connection for a psychiatric disorder on the merits. The Veteran's service treatment records contain no complaint, diagnosis or treatment for a psychiatric disorder. After service, the record reflects that he was hospitalized at a VA facility in July 1985 after being apprehended by police for disruptive behavior at his workplace. He reported having bizarre experiences for approximately 3 to 4 weeks prior to admission. The discharge diagnosis was, schizophreniform disorder. He was again hospitalized in May 1988 at a VA facility for paranoid schizophrenia. He was again hospitalized on two occasions in August 1988 and again in 1989 in August 1989 and November 1990 for schizophrenia. The record reveals continuing treatment by VA and in private facilities for the Veteran for psychiatric complaints. Private records show that the Veteran was evaluated in February and March 2013 by Dr. C. The examiner reported that the claims file had been reviewed and that he had had phone interviews with the Veteran, members of the Veteran's family, and significant others as well as treatment personnel. The Veteran's history of psychiatric treatment was documented and he was interviewed by telephone. The examiner also talked with the Veteran's mother who stated that the Veteran had changed after his service discharge. The examiner also interviewed the Veteran's sister who indicated that she noticed changes in the Veteran's behavior during his service. The examiner also had a discussion with the Veteran's treating VA psychiatrist (Dr. F.). It was noted that Dr. F. indicated that he felt very confident in the diagnosis of schizophrenia, and that it was quite possible that the disorder manifested itself while he was still in the military. The diagnosis was schizoaffective disorder. He went on to state that the Veteran's mother and sister both strongly indicate that at discharge, the Veteran was not the same person they knew before he entered service. The examiner stated that in his professional opinion, with a reasonable degree of certainty that the Veteran's schizophrenia was manifesting itself within one year of discharge and in fact, more likely than not started manifesting itself while he was in the military. The Veteran was examined by VA in August 2013. The claims file was not made available to the examiner. The examiner diagnosed schizoaffective disorder. It was noted that the Veteran did not have a diagnosed traumatic brain injury. The examiner noted that the claims file was not available but that the request for the examination showed he was discharged from the Army in January 1985 and was psychiatrically hospitalized in July 1985. A history was taken. The examiner stated that the Veteran clearly suffered a psychotic break within the first year after leaving service, and that psychotic disorder had continued since that time with numerous exacerbations requiring hospitalizations. In an addendum that same month, the examiner stated that the claims file had been reviewed and that the records indicated a long-standing pattern of mood and behavioral instability. It was stated that the long-standing psychotic symptoms had their onset shortly after release from service and had required frequent hospitalizations. In August 2013, another VA examiner was asked to provide an addendum opinion to the August 2013 examination report. It was noted that the actual separation date was January 1984 and not 1985, and, thus, the hospitalization fell outside of the 12 months following discharge parameter. It was stated that given that the examiner listed the discharge date erroneously as January 1985 and symptom onset in July 1985 with the corrected date of separation of January 1984, it was less likely than not that the Veteran's reported symptoms initiating in July 1985 would be related to his active service. In an addendum received by VA in October 2013, Dr. C. stated that although the hospitalization did not occur until 16 months after discharge, the Veteran's mother and sister had clearly noted that the Veteran had changed while he was still in the Army. In a September 2013 addendum, the VA examiner, Dr. B., stated that the claims file was not available to him during his examination. It was pointed out that the incorrect discharge date had been given to him by the RO, that the correct date was January 1984, and that the hospitalization was in July 1985. The examiner stated that Dr C's detailed psychiatric evaluation contained testimony from the Veteran's sister that he displayed psychotic symptoms while on active duty. It was stated that in light of the Veteran's more severe and overt chronic psychiatric symptoms, the symptoms prior to discharge were clearly a prodromal phase of the current illness. It was noted that a letter from the mother described obvious psychotic symptoms of delusions paranoia and thought disorganization immediate post discharge. The examiner stated that the credible lay testimony by close family members indicates that it is at least as likely as not that the Veteran's chronic psychotic illness manifested within one year of discharge from active duty, and indeed predated his discharge. The examiner concluded that he had reviewed and was in complete agreement with Dr. C's evaluation and findings. In reviewing the evidence of record, the Board concludes that in this case, as it now stands, the evidence of record is at the very least in relative equipoise as to whether the Veteran's current psychiatric disorder is etiologically related to service. The Board finds the evidence, which includes the Veteran's credible statements, credible lay statements, private reports and VA examination reports provides a reasonable basis to award service connection. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is aware that a medical opinion cannot be rejected solely because it is based upon history supplied by the claimant. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The Court also stated that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, after weighing all the evidence, the Board finds that the VA opinions and private opinion offered are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). The opinions offered have probative value. All examiners reviewed the Veteran's records. The Board does not find any stated opinion to be substantially more persuasive than that provided by any other examiner. It is noted that the August 2013 VA examiner who offered a negative opinion based his finding in part on the absence of treatment within the first year after service. However, 38 C.F.R. § 3.303(d) provides that 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. See 38 C.F.R. § 3.303(d). Essentially the lack of specific documentation in service or within the first year thereafter in and of itself is not fatal to a service connection claim. While there is no showing of treatment in the first year, the positive finding was based on credible history provided by the Veteran as well as the lay statements of his family members. The examiner found the Veteran to be an adequate historian and the family members to be credible in this regard and offered a positive opinion. After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise with regard to whether the Veteran has a psychiatric disorder that either began in or is otherwise related to his military service. For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his claimed disability began in or is otherwise related to service. See 38 U.S.C.A. § 5107(b). The Board finds that standard has been met in this case. In this context, the Board notes that the Veteran has reported having consistent symptomatology since service. See Charles v. Principi, 16 Vet. App. 374-75 (2002). His reports are both competent and highly probative. Further his reports are supported by several lay statements submitted in support of his claim. The lay parties are competent to attest to the Veteran having unusual behavior during and since service and the Board has no reason to doubt their credibility. In sum, the Board is satisfied that the criteria for service connection have been met and service connection is established. In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998). When reviewing the evidence in its totality, the Board finds that the evidence in this claim is at the least in equipoise. Therefore, the Board finds that it must give the Veteran the benefit of the doubt, and grant his claim for service connection. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having been received; the claim of service connection for a psychiatric disorder is reopened. Service connection for a psychiatric disorder is granted. ______________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs