Citation Nr: 1417935	
Decision Date: 04/22/14    Archive Date: 05/02/14

DOCKET NO.  12-15 880	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received with respect to a claim of service connection for a psychiatric disability, including schizophrenia.


REPRESENTATION

Appellant represented by:	Matthew D. Hill, Attorney at Law


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel



INTRODUCTION

The Veteran had active duty service from October 1970 to August 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening service connection for schizophrenia.  The Veteran timely appealed that decision.

The Veteran initially indicated on his May 2012 substantive appeal, VA Form 9, that he wished a Board hearing a Veterans Law Judge; however, in a September 2013 correspondence, the Veteran withdrew his request for a hearing before the Board.  The Board will therefore consider his case at this time without the benefit of a hearing, per the Veteran's request.  

The issue of service connection for a psychiatric disability, including schizophrenia is considered reopened, and that reopened claim is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A November 1974 rating decision denied service connection schizophrenia and the Veteran was notified of that decision in a December 1974 letter; the Veteran did not submit a notice of disagreement within one year of notification of that denial, nor was any new and material evidence received during that period.  That decision is therefore final.

2.  The evidence received since the November 1974 rating decision is neither cumulative nor redundant, and relates to unestablished facts necessary to substantiate the claim of service connection for schizophrenia.



CONCLUSION OF LAW

New and material evidence has been received, and the claim of service connection for schizophrenia is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013).  Regarding the claim to reopen service connection for schizophrenia, as the instant decision reopens that claim and remands for further development, no further discussion of VCAA compliance of that issue is required at this time.

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013).  If a claim of entitlement to service connection has been previously denied and that decision became 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); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

If new and material evidence is received during an applicable appeal period following a RO decision (one year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Young v. Shinseki, 22 Vet. App. 461, 466 (2009); 38 C.F.R. §§ 3.156(b).

New evidence is defined as 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, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2013).

The Veteran was denied service connection in a November 1974 rating decision; he was informed of that decision in a December 1975 letter.  There is no notice of disagreement received within one year of that notification letter.  The next evidence in the claims file following that notification letter was received in 1979, and did not relate to a claim for benefits.  The Veteran filed his claim to reopen service connection for schizophrenia in October 2009.  Since that claim, which was denied in a February 2010 rating decision and is the subject of this appeal, was received, several copies of VA treatment records from 1974 were received, which were already of record at the time of the 1974 decision.  No service department records have been received that were not of record at the time of the 1974 rating decision.

As no new and material evidence was received within the appeal period following November 1974 rating decision, that decision became final.  See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010).  Likewise, a de novo review is not appropriate in this case, as no new service department records which were not of record at the time of the previous decision have been received.  See 38 C.F.R. § 3.156(c) (2013).  Lastly, as no notice of disagreement was received within the appeal period following the December 1975 notification letter, the November 1974 rating decision became final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).  Therefore, new and material evidence is required to reopen the claim of service connection for schizophrenia, regardless of how the RO characterized the issue.  See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156.

In this case, the Veteran submitted a private psychiatric evaluation from Dr. J.M., dated October 2012, which in pertinent part, noted that Dr. J.M. "believe[d] the Veteran's schizophrenia began during the time he was on active duty and that the symptoms from which he currently suffers are the same as those he experienced circa the time he was discharged."  

Such evidence constitutes new and material evidence, as it relates directly to whether the Veteran had a psychiatric disorder that began in or was the result of military service.  It raises a reasonable possibility of substantiating the claim.  As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened.


ORDER

New and material evidence having been received, the claim of service connection for schizophrenia is reopened; to this extent, the appeal is granted.


REMAND

The Veteran has not been afforded a VA psychiatric examination.  After review of the claims file, the Board finds that the low threshold for affording the Veteran a VA examination has been met at this time, and a remand is therefore necessary.  See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006).

Any ongoing private and VA treatment records should also be obtained.  See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any relevant VA treatment records from the Tampa VA Medical Center, or any other VA medical facility that may have treated the Veteran, since November 2010 and associate those documents with the claims file.

2.  Ask the Veteran to identify any private treatment, including those of Dr. J.M., that he may have had for his schizophrenia, which is not already of record.  After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file.  If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf.

3.  Schedule the Veteran for a VA psychiatric disability examination to determine whether any current psychiatric disorder is related to military service.  The claims file must be made available to and be reviewed by the examiner in conjunction with the examination.  

Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found, to include schizophrenia and/or a psychotic disorder, not otherwise specified.  

For each psychiatric disorder found, particularly schizophrenia, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service or had its clinical onset within the first post service year.  

The Veteran's lay statements regarding symptomatology he experienced during and after service, the 1974 VA inpatient hospitalization records for schizophrenia, the Veteran's mother's that he had a nervous condition "since he came from the Army statements from the Veteran's sister and his friend, J.L.G., should be considered.

The examiner should additionally address the Veteran's normal psychiatric examination on separation in July 1972, as well as his denial of any frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, bed wetting, any drug or narcotic habit, an excessive drinking habit, or nervous trouble of any sort, on his report of medical history at that time.  The examiner should also address Dr. J.M.'s October 2012 opinion and the conclusions therein.

A rationale for any opinion expressed must be provided.  If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

4.  Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claim of service connection for schizophrenia.  If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2013).   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).




______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs