Citation Nr: 1801279	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  15-28 135	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Whether new and material has been received to reopen a claim for service connection for schizophrenia.

2.  Entitlement to service connection for schizophrenia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

A. D. Jackson, Counsel


INTRODUCTION

The Appellant served with the Army from September 5, 1974 to October 17, 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In support of his claim, the Appellant testified at a videoconference before the undersigned Veterans Law Judge in July 2016 .

The issue of service connection for schizophrenia on the merits is remanded to the Agency of Original Jurisdiction (AOJ). 


FINDINGS OF FACT

1.  In an unappealed rating decision dated in April 1975, the RO denied a claim of entitlement to service connection for schizophrenia . 

2.  In an unappealed rating decision dated in March 1991, the RO denied a petition to reopen the claim for service connection for schizophrenia.

3.  The evidence added to the record since the March 1991 rating decision that denied the petition to reopen a claim for service connection for schizophrenia, is new and relates to an unestablished fact necessary to substantiate the claim for service connection for schizophrenia.


CONCLUSIONS OF LAW

1.  The April 1975 RO decision, that denied a claim of service connection for schizophrenia is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017).
 
2.  The March 1991, RO decision, that denied a petition to reopen the claim for service connection for schizophrenia is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia 

The RO first considered and denied the Appellant's claim for service connection for schizophrenia in April 1975.  The Appellant was notified of the decision and of his appellate rights by letter dated April 18, 1975.  He did not appeal.  Therefore, the April 1975 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 

In March 1991, the RO found that new and material evidence had not been received regarding the claim for service connection for schizophrenia.  The Appellant was notified of the decision and of his appellate rights by letter dated March 15, 1991.  He did not appeal.  Therefore, the March 1991 rating decision is final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

VA may reopen a previously and finally disallowed claim when 'new and material' evidence is presented or secured with respect to that claim.  38 U.S.C.A. § 5108; 38 .S.C.A. § 3 .156(a).  This requires a review of all evidence submitted by or on behalf of a claimant since the last final denial, regardless of whether the denial was on the merits or on procedural grounds, to determine whether a claim may be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).

In regard to the March 1991 rating action that denied the petition to reopen a claim for service connection for schizophrenia; the Board finds that the new evidence-in particular testimony of the Appellant-is so significant that this evidence must be considered in order to fairly decide the merits of the claim.  Therefore, the Board finds that this evidence is both new and material, and serves to reopen the claim.  38 C.F.R. § 3.156(a); see Shade v. Shinseki, 24 Vet. App. 110 (2010).  As such, the Appellant's claim for service connection for schizophrenia is reopened. 


ORDER

The petition to reopen the claim of entitlement to service connection for schizophrenia is granted.


REMAND

The Appellant should be scheduled for VA psychiatric examination on remand in order to obtain an opinion as whether it is likely as not that the Appellant's psychiatric disability is related to his military service.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Appellant for a VA psychiatric examination.  After reviewing the file, obtaining a complete medical history of the Appellant's psychiatric disorder, and examining the Appellant, the examiner should provide an opinion as to whether any current psychiatric disorder was incurred in or aggravated in military service.  

The examiner must provide a complete explanation for the opinion reached.

2. Then, readjudicate the claim on appeal.

The Appellant t 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 2014).




______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs