Citation Nr: 18140732 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-27 498 DATE: October 5, 2018 ORDER The application to reopen the claim for service connection for an acquired psychiatric disorder, to include schizophrenia is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia is remanded. FINDINGS OF FACT 1. A July 2009 rating decision denied service connection for schizophrenia, posttraumatic stress disorder (PTSD), adjustment disorder with depression, a personality disorder and depressive neurosis. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable appellate period. 2. The evidence associated with the claims file subsequent to the July 2009 rating decision denying service connection for schizophrenia, PTSD, an adjustment disorder with depression, a personality disorder and depressive neurosis, is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The July 2009 rating decision is final. 38 U.S.C. §§ 5108 (2002), 7105; 38 C.F.R. §§ 20.302, 20.1103 (2009). 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder, to include schizophrenia has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a), (c) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 2006 to November 2008. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Veteran asserts that his acquired psychiatric disorder, to include schizophrenia, first manifested in-service. Further, the Veteran asserts his symptoms were a result of in-service stressors. The Board finds new and material evidence sufficient to reopen the claim of service connection for schizophrenia, PTSD, an adjustment disorder with depression, a personality disorder and depressive neurosis has been received. The Board has recharacterized the Veteran’s reopened claim as service connection for an acquired psychiatric disorder, to include schizophrenia moving forward reflecting the current manifestations and etiology of the Veteran’s symptomology. The regional office (RO) denied service connection for schizophrenia, PTSD, adjustment disorder with depression, personality disorder and depressive neurosis, finding that the Veteran’s schizophrenia was not incurred in or caused by service in a July 2009 rating decision. The Veteran was notified of the decision and his appellate rights in July 2009. The Veteran did not appeal the decision or submit additional evidence within the applicable time period. Therefore, the July 2009 decision became final. 38 U.S.C. §7105; 38 C.F.R. §§ 20.302, 20.1103. In July 2009, the record consisted of service treatment records, VA treatment records, a VA examination and statements from the Veteran. The evidence failed to show an acquired psychiatric disorder was incurred in or attributable to service. Evidence associated since the rating decision includes additional VA and private treatment records, a VA and private examination and the Veteran’s and associated lay statements regarding his in-service symptoms. The Veteran’s statements and treatment records indicate a current disability, ongoing symptomology and a potential relationship to service. As such new and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder, to include schizophrenia has been received. As noted above, the issue has been recharacterized as entitlement to service connection for an acquired psychiatric disorder to include schizophrenia reflecting the current manifestations and etiology of the Veteran’s symptomology. The evidence provided addresses the previous unestablished facts of an in-service manifestation and a potential relationship to service. It is not redundant. Therefore, reopening of the claim for service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include schizophrenia. is remanded. First, in April 2014 the Veteran reported receiving social security administration (SSA) benefits, related to his psychiatric disorder. These relevant records are outstanding and a remand is required to allow VA to request these records. Next, the Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder, to include schizophrenia because no VA examiner has fully opined whether service connection is warranted based on rebuttal of the presumption of soundness and aggravation beyond the normal progression in service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Stated differently, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This is generally referenced as the “presumption of soundness.” If the presumption of soundness applies, the burden then shifts to “the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service.” See id. While no psychiatric disorder or manifestations were noted or reported by the Veteran on the entrance examination, the evidence of record does raise the issue of whether a psychiatric disorder preexisted the Veteran’s active service. Service treatment records and the results of service medical and physical evaluation boards provide detailed assessments of the history and manifestations prior to and during service. A June 2015 VA examination noted the Veteran’s reported symptoms during childhood. In addition, an August 2016 private consultant’s opinion contends the Veteran’s schizophrenia was aggravated by service and stressors associated with his service. The private opinion found that it was more likely than not that the Veteran’s schizophrenia was aggravated beyond its natural progression as a result of service, has continued since service and prevents him from maintaining substantially gainful employment. A new VA examination is required to fully address the applicable standard in the presumption of soundness context and consideration of the consultant’s assessment and relevance of the enclosed medical journal articles to this Veteran’s case. As such a remand is warranted. The matter is REMANDED for the following action: 1. Obtain the Veteran’s federal records from Social Security Administration (SSA). Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include schizophrenia. The examiner must opine whether: (a.) Identify all current acquired psychiatric disorders under the DSM-V. (b.) Is there clear and unmistakable evidence that an acquired psychiatric disorder, to include schizophrenia preexisted the Veteran’s active service (November 2006 to November 2008)? (c.) If yes, then was the disability clearly and unmistakably NOT aggravated (i.e. permanently worsened beyond the natural progression of the disability) by the Veteran’s active service? Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered “aggravation in-service.” If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the Veteran’s active duty service. (d.) If no, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder, to include schizophrenia is related to active service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the June 2015 VA examination which found it was less likely than not that the Veteran’s current mental health condition was caused by nor incurred by his active service. The examiner noted reported mental health symptoms during childhood. In addition an August 2016 private Mental Disorder Disability Benefits Questionnaire contends the Veteran’s schizophrenia was aggravated by service and stressors associated with service. The private opinion found that it was more likely than not that the Veteran’s schizophrenia was aggravated beyond its natural progression as a result of service, has continued since service and prevents him from maintaining substantially gainful employment. Additionally, medical literature has been associated with the claims file suggesting a relationship between stressors and the onset of schizophrenia. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian