Citation Nr: 1611383 Decision Date: 03/21/16 Archive Date: 03/29/16 DOCKET NO. 09-37 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a service connection claim for post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a service connection claim for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD C.S. De Leo INTRODUCTION The Veteran served on active duty from June 1985 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and September 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a June 2008 decision, the RO, inter alia, found that no new and material evidence had been received to reopen a previously denied claim for PTSD. In a September 2009 decision, the RO found that no new and material evidence had been received to reopen a previously denied claim for schizophreniform disorder. By way of background, with respect to the June 2008 rating decision denying PTSD, the Veteran explained that he did not submit a timely notice of disagreement because he had not received notice of the June 2008 decision. According to the Veteran, he is currently incarcerated. As such, he reported that his address changed. See September 2009 Statement; October 2009 Notice of Disagreement. In a subsequent letter dated on October 1, 2009, the VA informed the Veteran that they received his September 22, 2009 notice of disagreement and explained the Decision Review process. In a June 2010 statement of the case, the RO continued the denial of service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) on the merits. In an August 2010 statement of the case, the RO combined the service connection issues on appeal to include PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder), and continued the denial of service connection for PTSD because there was no medical evidence of diagnosis; and continued the denial of service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) finding that new and material evidence had not been received to reopen the claims for service connection. The Board remanded the matter to the RO in May 2011 for further development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACTS 1. In an unappealed May 2002 rating decision, the Columbia, South Carolina RO denied entitlement to service connection for PTSD. 2. The evidence received since the RO's May 2002 decision is new, relates to unestablished facts necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. In an unappealed May 2002 rating decision, the Columbia, South Carolina RO denied entitlement to service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). 4. The evidence received since the RO's May 2002 decision is new, relates to unestablished facts necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). CONCLUSIONS OF LAW 1. The RO's May 2002 denial of service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). 3. The RO's May 2002 denial of service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). 38 U.S.C.A. §§ 5103, 5103A, 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence In August 2000, the Veteran requested entitlement to service connection for several conditions, inter alia, schizoaffective disorder, depressive type and PTSD. See August 2000 VA 21-4138. In a May 2002 rating decision, the AOJ denied the Veteran's claim of service connection for schizophreniform disorder with paranoia and PTSD on the merits. He did not perfect a timely appeal of this decision. In November 2006, the Veteran requested to reopen the previously denied claim for entitlement to service connection for PTSD on the merits. In a June 2008 decision, the AOJ confirmed and continued the denial of service connection for PTSD. By letter dated in June 2008, the Veteran was notified of the decision. The Veteran appealed this decision. Thereafter, in April 2009, the Veteran requested to reopen the previously denied claim for entitlement to service connection for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). In a September 2009 decision, the AOJ reviewed the Veteran's request to reopen his claim for schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) and confirmed and continued the denial of service connection. The Veteran appealed this decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2015). According to the evidence of record, the Veteran did not initiate an appeal of the May 2002 rating decision with respect to the denial of service connection for PTSD or schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder); neither the Veteran nor his representative has contended otherwise. The Veteran also did not submit any statements relevant to the claim within one year of the May 2002 rating decision which would render this decision non-final for VA purposes under 38 C.F.R. § 3.156(b). See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011) (explaining that, when statements are received within one year of a rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b)). Thus, the May 2002 rating decision became final. The claim of service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) may be reopened if new and material evidence is received. Manio v. Derwinski, 1 Vet. App. 140 (1991). As discussed above, the Veteran has filed an application to reopen his previously denied service connection claims. New and material evidence is defined by regulation. See 38 C.F.R. § 3.156(a) (2015). As relevant to this appeal, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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. Id. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). With respect to the Veteran's application to reopen his claim of service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder), the evidence before VA at the time of the prior final AOJ decision in May 2002 consisted of his service treatment records and post-service treatment records. In the May 2002 decision, the RO specified that the Veteran did not have a current diagnosis of PTSD and also that schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) was not related to military service. Thus, the claim was denied. The newly received evidence includes records received from the Social Security Administration. Significantly, this newly received evidence relates to an unestablished fact necessary to reopen the previously denied claim of service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder). The Board observes in this regard that, in Shade v. Shinseki, 24 Vet. App 110 (2010), the Court recently held that the phrase "raises a reasonable possibility of substantiating the claim" found in the post-VCAA version of 38 C.F.R. § 3.156(a) must be viewed as "enabling" reopening of a previously denied claim rather than "precluding" it. Having reviewed the record evidence, the Board finds that the evidence received since May 2002 is new, because it has not been submitted previously to agency adjudicators, and is material, because it relates to unestablished facts necessary to substantiate the claim of service connection. Because new and material evidence has been received, the previously denied claim of service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) is reopened. ORDER New and material evidence having been submitted, the Veteran's claim for service connection for PTSD and schizophreniform disorder with paranoia (also claimed as severe depression, anxiety, and bipolar disorder) is reopened and, to that extent only, the appeal is granted. REMAND Before the Board can adjudicate the Veteran's claims on the merits, additional development is required. A July 2000 VA treatment record shows a diagnosis of schizoaffective disorder, depressive type. See Mountain Home VA Outpatient Clinic treatment records. Correspondence dated in January 2009 from Dr. S.A.T., Chief of psychology of the U.S. Department of Justice Federal Bureau of Prisons, shows the Veteran is under care for mental health conditions, noting that he also has a variety of medical diagnoses for which he obtains treatment. Treatment records from the correctional institution dated from February 2008 through June 2009 are associated with the claims folder. See U.S. Medical Records for Federal Prisoners. The Board finds that current treatment records from the Department of Corrections would be helpful in adjudicating the Veteran's claim for service connection. The records have a significant bearing on the Veteran's claim. Accordingly, remand is necessary to obtain these records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify each correctional facility of incarceration and obtain all outstanding treatment records, to specifically include all treatment records for any mental health conditions. Provide the Veteran with VA Form 21-4142, Authorization and Consent to Release Information to assist in obtaining the information. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (2015). 2. Then, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters 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 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 2014). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs