Citation Nr: 1414735 Decision Date: 04/04/14 Archive Date: 04/11/14 DOCKET NO. 09-41 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for chronic schizophrenia, paranoid type (schizophrenia). 2. Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Ragheb, Associate Counsel (CONTINUED ON NEXT PAGE) INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1978 to September 1979. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issue of service connection for schizophrenia 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. The Veteran's claim for service connection for schizophrenia was most recently denied by an August 2003 rating decision; the Veteran was notified of his appellate rights, but did not complete an appeal of the rating decision. The decision is now final. 2. Evidence received since the August 2003 rating decision with respect to Veteran's schizophrenia is new and material; it is not cumulative and raises a reasonable possibility of substantiating the Veteran's claim for service connection for schizophrenia. (CONTINUED ON NEXT PAGE) CONCLUSIONS OF LAW 1. The August 2003 rating decision, which denied reopening the claim for service connection for schizophrenia became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. The criteria for reopening the claim for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In Kent v. Nicholson, 20 Vet. App. 1, 11-12 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, in the context of claims to reopen, VCAA notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. With respect to the Veteran's claim decided herein, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions under Kent. Moreover, there can be no prejudice to the Veteran in proceeding with the current action because of the favorable nature of the Board's decision to reopen service connection for schizophrenia. Reopening Service Connection for Schizophrenia Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c), (d)(3) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "[N]ew evidence" means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). Materiality has two components, first, that the new evidence pertains to the reason(s) for the prior final denial, and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying concepts derived from the duty to assist. 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 purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO most recently denied the Veteran's claim for service connection for schizophrenia by an August 2003 rating decision on the basis that there was no new and material evidence to reopen the claim for service connection for schizophrenia. The Veteran was notified of this decision and of his procedural and appellate rights by letter in August 2003. He did not complete an appeal of this decision; thus, it is final. 38 U.S.C.A. § 7105(a); 38 C.F.R. §§ 20.302, 20.1103 (2013). The Veteran's claim for service connection has been denied on the basis that the Veteran's schizophrenia preexisted active service and was not aggravated by active service. Therefore, new and material evidence with respect to this issue must tend to show that the Veteran's schizophrenia was aggravated by active service. Evidence of record prior to the August 2003 rating decision includes the Veteran's lay statements, post-service VA and private treatment records, and a September 2000 statement from Dr. Koss, the Veteran's VA treating psychiatrist. In the Veteran's statements, he claims that his schizophrenia started in service or, in the alternative, was aggravated by service. Post-service VA and private treatment records show a diagnosis of chronic schizophrenia as well evidence that the Veteran's schizophrenia may have preexisted service. A May 1980 private hospital discharge report notes that the Veteran stated that he started hearing voices five years earlier; a January 1982 private hospital discharge report indicates that the Veteran reported first experiencing auditory hallucinations in 1975; and a June 1986 VA hospital discharge report mentions that the Veteran asserted that his psychiatric condition had markedly worsened after he took lysergic acid diethylamide (LSD) at ages 15 and 20 and that he had experienced auditory hallucinations ever since. Finally, in the September 2000 statement, Dr. Koss opined that the Veteran's schizophrenia had its onset during service, or at the very least, military service should be considered an aggravating factor. However, there is no indication that Dr. Koss reviewed the case file nor did he provide a rationale for this opinion despite multiple requests by the RO to provide such rationale. The newly-submitted evidence includes VA treatment records, Social Security Administration (SSA) records, and lay statements by the Veteran, his aunt, and two uncles. Lay statements by the Veteran's aunt and uncles indicate that they did not notice that the Veteran had any mental problems prior to him entering active service and that he was a different person by reason of mental illness when he was discharged from service. SSA records show that the Veteran has been receiving SSA disability benefits due to his schizophrenia since August 1981. The Board finds that the evidence cited above is new in that it has not previously been received and is not cumulative or redundant of evidence previously of record. The lay statements by the Veteran's uncles and aunt are presumed credible for purposes of reopening the claim for service connection. See Justus, 3 Vet. App. 510. The Board finds that this evidence is material because it addresses the unestablished fact that the Veteran's schizophrenia may have been aggravated by active military service. Because the Board finds the newly-submitted evidence to be both new and material, there is sufficient evidentiary basis to reopen the claim for service connection for schizophrenia. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. However, as explained in the remand section below, further development is necessary before the Board can address the merits of the Veteran's claim. ORDER New and material evidence having been received, service connection for schizophrenia is reopened. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The March 1987 Board decision refers to the Veteran's service medical records, to include October 1978 and May 1979 hospitalization reports as well as the Veteran's service separation examination report. Unfortunately, these records appear to have been separated from the file; therefore, if available, these records should be obtained. Moreover, while the March 1987 Board decision indicates that Veteran's service entrance exam was not on file, the Veteran indicated in a March 2009 statement that he had an entrance examination and nothing was found to prevent induction. Therefore, if available, the entrance examination report should be obtained. Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should undertake additional efforts to obtain the Veteran's service treatment records, to include the Veteran's service entrance examination report, if available. In doing so, the RO/AMC should contact the Veteran and request that he send copies of all service treatment records, to include the service entrance examination report, if available to him. Efforts to obtain all these records must be associated with the claims file and requests for these records must continue until the AOJ determines that the records sought do not exist or that further efforts to obtain those records would be futile. The RO/AMC should notify the Veteran in accordance with 38 C.F.R. § 3.159(e) if the records are unavailable. 2. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs