Citation Nr: 1802950 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-38 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, including schizoaffective disorder, bipolar disorder, and major depression with psychotic features and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, bipolar disorder, and major depression with psychotic features. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION The Board on its own motion has advanced this appeal on the Board's docket due to financial hardship. 38 C.F.R. § 20.900(c). The Veteran served on active duty in the United States Army from January 1980 to January 1983. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. After the decision was entered, the case was transferred to the jurisdiction of the RO in Philadelphia, Pennsylvania. The Veteran raised the issue of entitlement to a total disability rating for individual unemployability (TDIU) based on service-connected disability in an April 2014 Veteran's Supplemental Claim for Compensation. The RO has not addressed this issue; therefore, it is referred to the RO for appropriate action. This matter was remanded in July 2015 and June 2017 in order to afford the Veteran an opportunity for a hearing. In September 2017, the Veteran, through his attorney, withdrew the request for a hearing. Due to withdrawal of the hearing request, the Board will address the issue on appeal. FINDINGS OF FACT 1. An unappealed June 2003 rating decision denied entitlement to service connection for an acquired psychiatric disorder, including schizoaffective disorder, bipolar disorder, and major depression with psychotic features. 2. Since the time of the June 2003 rating decision, the Veteran has submitted new evidence that when considered with the evidence previously of record, relates to an unestablished fact necessary to substantiate the Veteran's claim, and raises a reasonable possibility of substantiating the claim. 3. The most probative evidence of record reflects that the Veteran currently suffers from schizoaffective disorder and that the disorder was incurred in service. 4. The evidence further reflects that the Veteran's alcohol and substance abuse are secondary to his underlying psychiatric condition. CONCLUSIONS OF LAW 1. The June 2003 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, most recently diagnosed as schizoaffective disorder, and for associated drug and alcohol abuse, have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R §§ 3.159, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that 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. § 5108. Historically, service connection for an acquired psychiatric disorder including schizoaffective disorder, bipolar disorder, and major depression with psychotic features was denied in a rating decision dated in June 2003. At the time, the RO determined that service medical records were negative as to any complaints or treatment for a psychiatric disability, and that the Veteran did not manifest a psychosis to a degree of 10 percent or more within one year of the Veteran's discharge. See Rating Decision, June 2003. The Veteran did not appeal this decision within one year. Nor did he submit any new evidence within that time. As a result, the RO's decision became final. 38 C.F.R. §§ 3.160(d), 20.302, 20.1100, 20.1104 (2017); 38 C.F.R. § 3.156(b). After the June 2003 final denial, the RO denied Appellant's request to reopen his previously denied claim in a December 2008 rating decision, as the evidence presented, while new, was not material. Prior to finality attaching to the December 2008 VA rating decision, however, the Veteran submitted another claim to reopen his previously denied claim in January 2009. In an April 2009 rating decision, the RO reopened the Veteran's claim, and continued the denial of service connection. Regardless of what the RO has done, the Board must address the question of whether new and material evidence to reopen the claim has been received, because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). New evidence is defined as 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. 38 C.F.R. § 3.156(a) (2017). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). At the time of the June 2003 rating decision, the RO considered evidence of record, which consisted of: service treatment records (STRs) from January 1980 to January 1983, medical evidence in the form of an involuntary commitment order and treatment report from January to February 2001, VA hospital treatment records from 1994 to 2003, Community Health Center Treatment records from January to April 2002, and a VA examination from July 2002. Since that time, the Veteran has submitted additional evidence including: A lay statement from his father in March 2011, indicating that the Veteran's mental health issues surfaced after his tour of duty in the Army; a mental health examination from 2007; VA Medical Center (VAMC) treatment records from March 2011, and an opinion from the Veterans Health Group dated October 2016, which links the Veteran's disability to service. This evidence was not considered at the time of the prior rating decision. The Board finds that the evidence submitted since the June 2003 rating decision is new and material. The evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156. As such, the claim is reopened. To this extent, the appeal is granted. II. Service Connection The Veteran's contention is that his psychiatric disabilities are related to service. Although it is unclear from the record precisely when the Veteran began to use substances, he asserts that his most serious illegal drug use and alcohol problems occurred following his discharge from service. See Veteran's application for compensation, March 2002). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disabilities, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2017). If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Current Disability In a private medical opinion dated in October 2016, the Veteran was diagnosed with schizoaffective disorder. See Opinion, South Florida Psychological Associates, LLC, October 2016. Prior to that, in a VA examination dated July 2002, the Veteran was diagnosed with schizoaffective disorder with chronic major depression and intermittent psychotic symptoms, poly-substance dependence in early remission and current nicotine dependence. See VA C & P examination, July 2002. Thus, he has a current disability, and he has satisfied the first element of a service connection claim. In-Service Incurrence The Veteran's STRs, reflect that upon entrance in November 1980 he was found to be clinically normal upon evaluation. He was noted to be in good health and taking no medication. See Report of Medical History STRs, November 1980. No psychiatric problems were noted on this examination. The Veteran elected not to have a separation examination. See Medical Examination Statement Option, January 1983. None of the Veteran's STRs show treatment for depression or any psychiatric disorder while he was on active duty. The Veteran's service records note that he received several Article 15 violations in 1982, non-judicial punishment for disorderly conduct under the Uniformed Code of Military Justice (UCMJ) while he was in service. The Veteran indicated that while in service he felt isolated, which eventually caused him to start consuming alcohol and using drugs. He stated that his depression started at that time, and that he had been living in "stress and anxiety" since he joined the Army. See Veteran's Statement in Support of Claim, May 2013. He further asserted that his mother had been killed in a car crash while he was in service, which caused his symptoms to worsen. The Board finds the Veteran competent to relay how he felt during service. Given the aforementioned, it may be concluded that the second element of a service connection claim has been satisfied. Nexus The remaining question, then, is whether or not there is a nexus between the Veteran's current psychiatric condition and his military service. In the instant case, the Board is satisfied that the required nexus has been established. The most probative medical evidence indicates that the Veteran's psychiatric disability was incurred in service. In July 2002, the Veteran presented to a VA Mental Disorders Examination, where he was diagnosed with schizoaffective disorder with chronic Major Depression and intermittent psychotic symptoms, polysubstance dependence in early remission and current nicotine dependence. The examiner stated that the evaluation was performed without the benefit of the c-file or medical records. He explained that the Veteran's psychiatric disability did not occur during service. He stated: "It does sound as if his symptoms developed after he left active duty, but I would have no way of knowing unless I review his medical records in the service to determine whether he was seen on active duty for any pre-morbid symptomatology. The Veteran obtained an independent medical opinion from Dr. Polsky of the South Florida Psychological Associates, LLC, in October 2016, wherein the examiner diagnosed the Veteran with schizoaffective disorder. The examiner opined that the Veteran's psychiatric condition was related to his military service. The examiner stated: It is at least as likely as not that Mr. [REDACTED] diagnosis of Schizoaffective Disorder is directly related to his military service, specifically his experiences during basic training and the death of this mother while he was serving. Mr. [REDACTED] military entrance examination was clear of any mental issues and records indicate that he began to experience difficulty during services, as evidenced by the Article 15's that he received. Research has demonstrated that the development of Schizoaffective Disorder (or another psychotic illness) is more than twice as likely in those who suffer significant adversity, such as parental death (http://www.medicinenet.com/schizoaffective_disorder). Mr. [REDACTED] related that he began excessively drinking alcohol and using drugs in service. It is not uncommon for solders to utilize substances in attempt to self-medicate since their psychological symptoms become significant and difficult to control. See South Florida Psychological Associates, LLC, October 2016. The Board may favor one medical opinion over another if it provides an adequate statement of reasons and bases. See D'Aries v. Peake, 22 Vet. App. 97, 107 (2008); see also Prejean v. West, 13 Vet. App. 444 (2000) (holding that the Board may also consider whether the examiner had access to the claims file and whether the opinion is thorough and detailed); see Gabrielson v. Brown, 7 Vet. App. 36 1994. Greater probative value is given the October 2016 private medical evaluation inasmuch as the VA examiner's opinion in July 2002 was offered without benefit of a review of the Veteran's complete medical records. The opinion of October 2016, included both a thorough review of the Veteran's claims file and an examination of the Veteran, as well as a thorough rationale for the opinion. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). As such, it is entitled to more probative value. Consequently, with a higher probative value given to the most recent medical opinion, resolving doubt in the Veteran's favor, the Board finds that an acquired psychiatric disorder most recently diagnosed as schizoaffective disorder with associated alcohol and drug abuse is related to service. Service connection for this disorder is warranted. 38 C.F.R. § 3.304(f) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the evidence of record indicates that the Veteran may have other diagnosed psychiatric disorders, including bipolar disorder, and major depression with psychotic features and PTSD. The Board is precluded from differentiating between symptoms of multiple disabilities, where a Veteran is diagnosed with multiple psychiatric disorders, and it is unclear from the record which symptoms are attributable to each disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the Board is unable to differentiate the symptomology of the acquired psychiatric disorder. As such, the Board has attributed all psychiatric disorder symptomatology and impairment to the now service-connected acquired psychiatric disorder of schizoaffective disorder, and the RO should consider all of the Veteran's psychiatric symptomology and impairment when assigning an initial disability rating. ORDER New material evidence has been received to reopen a previously denied claim for an acquired psychiatric disorder, including schizoaffective disorder, bipolar disorder, and major depression with psychotic features and posttraumatic stress disorder (PTSD). Entitlement to service connection for schizoaffective disorder is granted. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs