Citation Nr: 1510316 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 10-41 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for schizophrenic reaction, chronic undifferentiated type, competent (hereinafter "schizophrenia"). 2. Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Phillip Hatfield, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO denied reopening of a claim for service connection for schizophrenia and denied service connection for heart problems. Review of the VA paperless claims processing systems reveals additional documents pertinent to the present appeal, specifically, a January 2015 Brief of Appellant. FINDINGS OF FACT 1. A claim for service connection for schizophrenia was denied in an unappealed January 2003 Board decision. 2. No evidence received since the January 2003 Board decision relates to an unestablished fact necessary to substantiate the claim or raises a reasonable possibility of substantiating the claim for service connection for schizophrenia. 3. The Veteran has no current diagnosis of any heart disorder. CONCLUSIONS OF LAW 1. The January 2003 Board decision denying reopening of the claim for service connection for schizophrenia is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.159, 3.160(d), 20.200, 20.302, 20.1100, 20.1104 (2014). 2. New and material evidence has not been received to reopen the claim for service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156, 3.304 (2014). 3. The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act (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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. Here, a letter dated in July 2009 informed the Veteran of the basis for the prior denial of his claim for service connection for schizophrenic reaction. The letter informed the Veteran of the evidence needed to reopen the claim as well as the evidence needed to substantiate a claim for service connection. The July 2009 letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. A September 2009 letter informed the Veteran of the information necessary to substantiate his claim for heart problems, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. at 186-87; 38 C.F.R. § 3.159(b). The September 2009 letter also explained how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. Id. The Board thus concludes that VA's duty to notify has been satisfied. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records (STRs) and personnel records have been obtained, as well as post-service VA treatment records. In December 2012, the RO issued a formal finding that federal treatment records from the North Texas Health Care System dated from June 11, 1966 to February 1, 1995, were not available. The Veteran has not had a VA examination related to these claims. However, the Board notes that the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159(c)(4)(iii). The RO did not afford the Veteran a VA examination for the claimed heart problems. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. The record does not show that the Veteran has any heart problems related to military service. The STRs reveal no treatment for the heart, nor do post-service treatment records show any heart problems. Moreover, the record contains no diagnoses or treatment of a heart disorder during the Veteran's service or within one year of service. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 187. To the extent there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with the issues on appeal. Reopening The RO previously considered and denied a claim for service connection for schizophrenic reaction, chronic undifferentiated type, in an April 1981 rating decision. The Veteran was notified of this decision by a letter dated in September 1981. The Veteran did not submit a timely notice of disagreement to the April 1981 rating decision. The Veteran did not appeal the RO's April 1981 rating decision. Thus, the decision became final one year later. In April 2001, the Veteran filed to reopen a claim for service connection for schizophrenia. In October 2001, the RO denied reopening because the Veteran had failed to submit new and material evidence adequate to reopen the claim for schizophrenia. The Veteran appealed and, in January 2003, the Board denied reopening the claim. The Board found that the evidence submitted since the April 1981 prior final rating decision was either cumulative or redundant or did not bear directly and substantially on the matter of service connection for schizophrenia. The Board observed that recently submitted VA medical records only confirmed the current diagnosis of schizophrenia but did not offer any evidence that schizophrenia had its onset in service or preceded service and was aggravated in service. Further, the Veteran's testimony regarding his difficulties in service and the onset of auditory hallucinations several years after leaving service essentially duplicated information previously provided in service records and private hospital records, and the lay statements of the Veteran and another individual either did not represent competent evidence of a nexus to service or did not relate to the current diagnosis of schizophrenia. In June 2009, the Veteran filed a request to reopen the claim for service connection for schizophrenia. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. For claims filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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. A claim that is the subject of a prior denial may be reopened if new and material evidence is received with respect to that claim. Once a claim is reopened, the adjudicator must review it on a de novo basis, with consideration given to all the evidence of record. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273 (1996). The evidence that is considered to determine whether new and material evidence has been received is the evidence received since the last final disallowance of the Veteran's claim on any basis. Evans, 9 Vet. App. at 286. This evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue, or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The evidence of record at the time of the prior final Board decision included STRs, personnel records, VA outpatient treatment records, and statements submitted by the Veteran and others. The new evidence received since the January 2003 Board decision includes a written statement, treatment records from the Dallas VA Medical Center (dated July 2000 to November 2009), and VA outpatient medical records. For purposes of reopening, the Veteran's statement is deemed credible. Unfortunately, none of the records provides any support for missing elements of the Veteran's service connection claim and are therefore not material. Accordingly, the request for reopening the claim of service connection for schizophrenia cannot be granted. Service Connection The Veteran asserts entitlement to service connection for heart problems. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The mere fact of an in-service injury is not enough; there must be evidence of a chronic disability resulting from that injury. In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Where a veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since active service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a) (2014). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Cardiovascular disease is listed as a chronic condition under 38 C.F.R. § 3.309(a). In addition, cardiovascular disease may be presumed to have been incurred in or aggravated by active service if it becomes manifest to a degree of 10 percent or more within one year of discharge from active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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); see also Jandreau, 492 F.3d 1372, 1376-77. 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. There is no evidence indicating the existence of any current heart problem. In February 1964 and March 1964, the Veteran's STRs reveal a fluttering heart which was caused by anxiety and disappeared as soon as he changed jobs. After this reassignment, he had no more complaints of, treatment for, or diagnosis of any heart condition. The Veteran has no current diagnosis of any heart problem and thus, in the absence of a current diagnosis of such, he does not satisfy the first requirement for service connection. As the first element that is necessary to establish service connection for a particular disability (a current diagnosis) is not established in this case, service connection for a heart disorder is not warranted. ORDER New and material evidence has not been received, and the petition to reopen the claim for service connection for schizophrenia is denied. Service connection for a heart disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs