Citation Nr: 18143551 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-30 308 DATE: October 19, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for schizophrenia is reopened. REMANDED The issue of entitlement to service connection for schizophrenia is remanded. FINDINGS OF FACT 1. A December 2014 rating decision denied entitlement to service connection for mental health condition (claimed as posttraumatic stress disorder, schizophrenia and anxiety); the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the December 2014 rating decision. 2. Evidence received since the December 2014 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for schizophrenia. CONCLUSIONS OF LAW 1. The December 2014 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103 (2018). 2. New and material evidence having been received; the claim for entitlement to service connection for schizophrenia is reopened. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to December 1984 and from October 1985 to April 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran’s claims file is currently under the jurisdiction of the Cheyenne, Wyoming RO. NEW AND MATERIAL EVIDENCE In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing evidence that, by itself or when considered with 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Analysis In this case, the RO denied service connection for mental health condition (claimed as posttraumatic stress disorder, schizophrenia and anxiety) in a December 2014 rating decision because there was no evidence of a relationship between the Veteran’s mental health condition and his active service. Thus, service connection for mental health condition (claimed as posttraumatic stress disorder, schizophrenia and anxiety) could not be established. The Veteran was notified of the decision in a letter dated December 23, 2014. The Veteran did not file a notice of disagreement with the December 2014 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the December 2014 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1105. Evidence associated with the record since the final December 2014 rating decision includes an April 2016 VA treatment record. The VA psychiatrist stated, “I do believe his schizophrenia began when he was on active duty.” This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the VA treatment note raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for schizophrenia, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to Service Connection for Schizophrenia Regarding the Veteran’s claim for entitlement to service connection for schizophrenia, remand is required to provide the Veteran with a VA examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination. Here, the April 2016 VA psychiatrist stated he believed the Veteran’s schizophrenia began during his active service, because that is when the Veteran first began hearing voices in 1988. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an examination. The Board notes that the April 2016 VA treatment record is not adequate to adjudicate the claim since it is speculative. However, the opinion is adequate to require the Veteran be provided a VA examination. Additionally, the Board notes that the record for review may be incomplete. The most recent VA treatment records are from May 2016. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matter is REMANDED for the following action: 1. Obtain all outstanding treatment records relevant to the matter being remanded, to include from May 2016. 2. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of his schizophrenia. Provide a copy of this remand and the record for the examiner to review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s schizophrenia had its onset during his service or is otherwise etiologically related to his service. 3. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for schizophrenia may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel