Citation Nr: 1806184 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-11 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence was received to reopen a claim for service connection for an acquired psychiatric disorder, to include latent schizophrenia, and if so, whether service connection for that disability is warranted. 2. Whether new and material evidence was received to reopen a claim for service connection for residuals associated with a traumatic brain injury (TBI), and if so, whether service connection for that disability is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from June 1974 through March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's testimony was received during an August 2016 Board hearing. A transcript of that testimony is associated with the record. Regarding the issue of the Veteran's entitlement to service connection for a psychiatric disorder, the evidence suggests multiple possible diagnoses for the Veteran's condition, including schizophrenia, anxiety disorder, and depressive disorder. The Board has expanded the scope of the issue in order to include consideration of potential service connection for all psychiatric disorders suggested in the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board remanded this matter previously in December 2016 for further development. That development has been performed by the agency of original jurisdiction (AOJ) and the matter now returns to the Board for de novo review. FINDINGS OF FACT 1. The Veteran's petition to reopen previous claims for service connection for schizophrenia and for residuals associated with a head injury was denied in a September 2006 rating decision and the Veteran did not appeal that decision. 2. The Veteran's currently pending petition to reopen his claims for service connection for schizophrenia and for residuals associated with a TBI was received in September 2008. 3. The evidence associated with the claims file since the September 2006 rating decision, when considered with the evidence previously of record, does not relate to the previously unestablished questions of whether the Veteran has a current acquired psychiatric disorder and residuals associated with a TBI that are related etiologically to injuries sustained by him during his active duty service. CONCLUSIONS OF LAW 1. The September 2006 rating decision that declined to reopen the Veteran's claims for service connection for schizophrenia and for residuals associated with a head injury is final. 38 U.S.C.A. § 7105(b), (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1100 (2017). 2. The additional evidence associated with the record since the September 2006 rating decision is not new and material, and the petition to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, to include latent schizophrenia, is denied. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The additional evidence associated with the record since the September 2006 rating decision is not new and material, and the petition to reopen the Veteran's claim for service connection for residuals associated with a TBI is denied. 38 U.S.C.§ 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a final rating decision or Board decision may not be reopened and allowed, and a claim based on the same factual analysis may not be considered. 38 U.S.C. §§ 7104, 7105 (2012). Under 38 U.S.C. § 5108, however, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), "new and material evidence" means evidence not previously submitted to agency decisionmakers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's original claims for service connection for latent schizophrenia and for residuals associated with a head injury were received in June 1975 and denied ultimately in an April 1977 Board decision. As bases for the denial, the Board concluded that, although the service treatment records indicate that the Veteran did have psychiatric problems during service, those problems were attributable to a lifelong personality disorder. Further, the Board reasoned, there was no evidence that the Veteran had a superimposed acquired psychiatric disorder that aggravated the Veteran's pre-existing personality disorder. Over the years, the Veteran filed multiple petitions in which he sought to reopen his claims. The most recently fully adjudicated petition was denied in a September 2006 rating decision on the continuing basis that the evidence did not show the existence of an etiological relationship between the Veteran's active duty service and any current psychiatric disorders and/or residuals associated with a head injury. The Veteran did not seek an appeal of the RO's September 2006 decision. As such, the RO's September 2006 decision is final. The pending petition to reopen was received from the Veteran in September 2008. That petition was also denied by the RO in a December 2008 rating decision. The Veteran has perfected a timely appeal of that decision. A. Acquired Psychiatric Disorders At the time of the RO's September 2006 rating decision, the record included the Veteran's claims and statements, in which he asserted that he received a schizophrenia diagnosis during service. Consistent with those assertions, service treatment records in the file at that time included a December 1974 in-service psychiatric evaluation that reflected a diagnosis of severe schizoid personality. A January 1975 Medical Board evaluation confirmed the diagnosis of a latent schizophrenia. Due to that condition, the Veteran was given an early medical discharge from his active duty service. Post-service evidence at the time of the September 2006 rating decision included various VA and private treatment records that showed that the Veteran had been receiving off-and-on psychiatric treatment since 1975. Early treatment records during that period, which included an October 1975 private evaluation by Dr. V.E.N., records for early VA treatment through 1976, and VA examinations conducted in May 1984 and October 1985, all indicated initial diagnoses of a latent schizophrenia. Records for later treatment, however, indicated a change in the Veteran's diagnoses to dysthymia (during VA treatment from 1999 through 2000) and generalized anxiety disorder (during VA treatment from 2003 through 2005). Still, the records contained no opinions linking the Veteran's condition to the symptoms shown during his active duty service, or, to any other injury or event that occurred during his active duty service. Additional evidence added to the record since the final September 2006 rating decision includes the Veteran's August 2016 Board hearing testimony. In that testimony, the Veteran testified that he was experiencing ongoing symptoms of that had been persistent since his active duty service. He testified also that his VA psychiatrist, Dr. W., had told him that he had schizophrenia that was caused by his active duty service. The newly added evidence includes also records for additional VA mental health treatment received by the Veteran through February 2017. Those records show that the Veteran has been followed for ongoing anxiety disorder and depressive disorder. Considered together, the Veteran's Board hearing testimony and the assembled treatment records do not raise the possibility that the Veteran may have an acquired psychiatric disorder that either began during his period of active duty service, or, resulted from an injury or event that occurred during his active duty service. In this regard, the Veteran has consistently reported that he has continued to experience psychiatric symptoms since service since his filed his initial claim in the 1970s. Accordingly, these statements are not new. Moreover, the Veteran is not competent to opine as to etiology of any acquired psychiatric disorder, which is the missing element needed to substantiate his claim to reopen. Although the Veteran testified that his VA doctor told him that his schizophrenia was caused by his service, such assertion is not supported by the other more credible evidence of record, as there is no opinion from Dr. W. of record indicating a relationship between the Veteran's service and any acquired psychiatric disorder. None of the medical evidence of record suggests a relationship between any current psychiatric disorder and the Veteran's military service. Accordingly, the Board finds that new and material evidence concerning the Veteran's claim for service connection for an acquired psychiatric disorder has not been received. The petition to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, to include latent schizophrenia, is denied. B. Residuals Associated with TBI At the time of the RO's final September 2006 rating decision, the evidentiary record consisted of the Veteran's claims, in which the Veteran asserted that he was experiencing headaches and periodic blackouts. In his April 2005 petition to reopen, the Veteran asserted that he sustained in-service head trauma at Camp Pendleton in 1975 when he was pulled from his bunk by his sergeant and struck his head on his foot locker. Service treatment records that were in the claims file at that time showed that the Veteran was evaluated and treated during service in August and November of 1974 for reported headaches, blurred vision, and blackouts. Later in November 1974, the Veteran was in an unresponsive state when he was taken for treatment and was brought back to consciousness with slaps on his chest. Subsequent service treatment records from December 1974 showed that the Veteran continued to be followed for blackouts. His headaches and blackouts were diagnosed at that time as hyperventilation syndrome. The evidence at the time of the September 2006 rating decision also included reports from VA examinations that were conducted in December 1975, May 1984, June 1985, and October 1985. The examinations conducted in 1975, 1984, and in June 1985 apparently revealed no objective findings and a specific diagnosis was not given during any of those examinations. During the October 1985 examination, the examiner opined that the Veteran's headaches were likely muscle contraction headaches. Evidence added to the record since the September 2006 rating decision includes the Veteran's August 2016 Board hearing testimony, during which he testified that he had been having chronic headaches, dizziness, and memory loss symptoms since his period of active duty service. These reports are not new, as he has consistently reported ongoing headaches/memory loss since he initially filed his claim in the 1970s. During an August 2014 VA examination, the VA examiner opined that the Veteran's headaches were attributable to hyperventilation, which does not suggest a relationship to his military service. In a VA examination for TBI that was conducted in September 2014, the VA examiner opined that the Veteran did as likely as not sustain a mild TBI during service, however, was not demonstrating any current residuals from the TBI. Thus, this examination is not material evidence in support of the claim either. Overall, the Veteran's Board hearing testimony, considered together with the assembled treatment records, and the opinions given in the 2014 VA examinations does not raise the possibility that the Veteran's claimed residuals of a head injury may have either began during service or were caused by injuries that were sustained during service. The missing element needed to substantiate his claim, a nexus or relationship between his service and any current residuals of a head injury, has not been demonstrated. Although the Veteran may believe that he has experienced symptoms that are residuals of an in-service head injury, he is not competent to opine as to etiology. Accordingly, the Board finds that new and material evidence concerning the Veteran's claim for service connection for residuals associated with a TBI has not been received. Hence, the petition to reopen is denied. ORDER New and material evidence has not been received and the Veteran's claim for service connection for an acquired psychiatric disorder, to include latent schizophrenia, is denied. New and material evidence has not been received and the Veteran's claim for service connection for residuals associated with a TBI is denied. ______________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs