Citation Nr: 18144975 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 17-34 813 DATE: October 25, 2018 ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REMAND Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, previously claimed as a nervous disorder is remanded. FINDINGS OF FACT 1. The Board denied the Veteran’s claim for an acquired psychiatric disorder in a September 1976 Board decision, finding that the Veteran demonstrated a personality disorder in service, and his acquired psychiatric disorder did not have its onset in service or within a year following separation. 2. The evidence associated with the claims file since the September 1976 Board decision is not cumulative or redundant of previously submitted evidence, relates to an unestablished fact of nexus between a current acquired psychiatric disorder and service, and so raises a reasonable possibility of substantiating a claim for service connection for an acquired psychiatric disability. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7104(b) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1964 to February 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). “New” evidence is evidence not previously submitted to agency decision makers and “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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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 the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Here, the Board finds that new and material evidence has been received sufficient to reopen the Veteran’s claim. The RO granted service connection for an acquired psychiatric disorder in May 1968. In July 1975, the RO severed service connection for an acquired psychiatric disorder, citing that the grant of service connection was clearly and unmistakably erroneous. The Veteran filed a Notice of Disagreement (NOD) with the decision, and the claims were certified to the Board in March 1976. In a September 1976 decision, the Board denied the Veteran’s claim, finding that the Veteran demonstrated a personality disorder in service, and his acquired psychiatric disorder did not have its onset in service or within a year following separation. The evidence of record at the time of the September 1976 Board decision included the service treatment records, VA treatment records, and personal statements. Since the September 1976 Board decision, additional treatment records reflecting ongoing treatment for acquired psychiatric disorders have been associated with the claims file. In a September 2018 letter, a private clinical psychologist provided a positive nexus statement regarding the Veteran’s schizophrenia. The evidence is new because these records had not yet been received by the Board in adjudicating the Veteran’s claim for service connection for an acquired psychiatric disorder. The evidence is material because it relates to unestablished facts that are necessary to substantiate the claims. Specifically, the new evidence suggests that the Veteran’s acquired psychiatric disorder may be related to his active service. Regarding the newly submitted evidence, the Court has held that 38 C.F.R. § 3.156(a) “must be read as creating a low threshold” which “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.” Shade, 24 Vet. App. at 117-18. Given this standard, and presuming the credibility of the evidence, the Board finds that the additional evidence received since the September 1976 decision is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of service connection for an acquired psychiatric disorder. Accordingly, the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, previously claimed as a nervous disorder is remanded. The Veteran contends that his schizophrenia manifested in service. A February 1967 Medical Board report in service indicated the Veteran had a primary diagnosis of passive aggressive personality and was subsequently discharged as unsuitable for service. The Veteran underwent a VA examination in December 1967, and in a May 1968 addendum, the examiner noted the Veteran’s diagnosis of passive-aggressive personality in service, and opined that the Veteran had developed an anxiety reaction with various featured that indicated the possibility of “a more severe underlying psychopathologic process.” The Veteran was diagnosed with schizophrenia in November 1970. In a September 2018 private report and opinion by Christina L. Riebeling, Ph.D. noted that the Veteran served more than two years in the Navy without incident, and that a series of subsequent disciplinary problems led to a psychiatric evaluation resulting in a diagnosis of Passive Aggressive Personality Disorder. Dr. Riebeling also noted that, shortly after discharge, an examiner did not diagnose a personality disorder, but rather anxiety reaction along with a caveat that a more serious psychopathology might be present. A clinician in 1971 agreed with that assessment and concluded that the Veteran’s condition had progressed into schizophrenia. Dr. Riebeling opined that the Veteran’s diagnosis was more likely than not related to his military service, reasoning that it was more likely than not that his schizophrenia was evident within twelve months of his discharge from the Navy. She further noted that conceptualizing the Veteran’s entire psychiatric history as one of waxing and waning schizophrenic process makes more sense than framing it as a personality disorder, followed by psychotic symptoms, which was followed decades later by an affective disorder. However, Dr. Riebeling notes the record is silent from 1976 to 2016, but provides no explanation for this significant gap in treatment. Accordingly, a VA examination is necessary to clarify the Veteran’s current diagnoses, and to determine whether the Veteran’s diagnosis of Passive Aggressive Personality Disorder in service was a manifestation of an acquired psychiatric disorder, to include schizophrenia. The matters are REMANDED for the following action: 1. Request that the Veteran identify and secure any outstanding VA or private medical records. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any acquired psychiatric disability. In addressing the questions below, the examiner is directed to consider the September 2018 letter from Dr. Riebeling opining that the Veteran’s schizophrenia was more likely than not related to his military service, reasoning that it was more likely than not that his schizophrenia was evident within twelve months of his discharge from the Navy, as well as the absence of treatment for an acquired psychiatric disorder from 1976 to 2016. The VA examiner is requested respond to the following: (a.) Whether it is at least as likely as not (at least a 50 percent probability) that the Veteran is diagnosed with schizophrenia? (i) If so, is it at least as likely as not that that such schizophrenia manifested to a degree of 10 percent or more within one year of discharge from service? Why or why not? (ii) If the answer to (i) is negative, is it at least as likely as not that the diagnosed schizophrenia was incurred in or as a result of active duty service? Why or why not? (b.) If the answer to (a) above is negative, identify the Veteran’s currently diagnosed acquired psychiatric diagnosis (or diagnoses), if any; and (c.) For any diagnosed acquired psychiatric disorder, whether it is at least as likely as not (at least a 50 percent probability) that any such disorder was incurred in, or as a result of, active duty service. Why or why not? Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel