Citation Nr: 18145361 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-41 960 DATE: October 26, 2018 ORDER New and material evidence has been received to reopen a claim of entitlement for an acquired psychiatric disorder, (claimed as posttraumatic stress disorder (PTSD), depression and nervous condition). Entitlement to service connection for schizoaffective disorder, bipolar type with depression, is granted. FINDINGS OF FACT 1. Entitlement to service connection for an acquired psychiatric disorder (claimed initially as a nervous condition) was initially denied by the RO in an April 1992 rating decision; the Veteran was notified in writing of the decision, but he did not initiate an appeal or submit new and material evidence within one year. 2. Evidence added to the record since the April 1992 rating decision is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 3. The preponderance of the evidence demonstrates that the Veteran’s current schizoaffective disorder, bipolar type with depression, is related to his military service. CONCLUSIONS OF LAW 1. The April 1992 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. 2. As evidence received since the April 1992 rating decision is new and material, the criteria for reopening the Veteran's claim for service connection for an acquired psychiatric disorder are met. 3 8 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Entitlement to service connection for PTSD was initially denied in an April 1992 rating decision. The Veteran did not appeal this decision, and it is final. By a rating decision in October 2013, the RO reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder (claimed as PTSD), but denied the underlying issues on their merits. Although the RO determined that new and material evidence had been received sufficient to warrant reopening the Veteran's psychiatric disorder service connection claim, the Board must initially determine whether new and material evidence has been submitted regardless of the RO's actions. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In February 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. Following the Board Hearing, the Veteran requested and was granted an extension request. Thereafter, additional evidence was submitted and added to the record. However, the Veteran's representative waived the Veteran's right to have the RO initially consider this evidence in a September 2018 statement. 38 C.F.R. §§ 20.800, 20.1304. New and Material Whether new and material evidence has been received in order to reopen a claim of entitlement for an acquired psychiatric disorder. The Veteran seeks to reopen his previously denied claim for entitlement to service connection for an acquired psychiatric disorder. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented or secured. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The United States Court of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156 (a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 “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[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Kutcherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent); Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied the Veteran's claim of service connection for PTSD in an April 1992 rating decision. That decision was predicated on a finding that the Veteran’s psychiatric condition pre-existed his military service. The Veteran did not initiate an appeal or submit new and material evidence prior to the expiration of the appeal period, and that decision became final. As such, the April 1992 rating decision represents the last and final disallowance of the claim of service connection. See Evans v. Brown, 9 Vet. App 273, 283-85 (1996). Accordingly, this claim may only be reopened if new and material evidence is submitted. The evidence added to the record since the last final denial includes an August 2018 medical opinion from a private psychologist concluding that the Veteran did not suffer from a pre-service psychiatric condition, but rather a temporary grief reaction, and that his current schizoaffective disorder “likely as not” began during service and then “certainly worsened” beyond its normal course due to active duty. See August 2018 Psychologist opinion. The Board finds that this evidence is new and material because it tends to show evidence that the Veteran may have a psychiatric disability that began during service. This evident was not available at the time of the April 1992 denial. This evidence also pertains to the reason for the denial of the Veteran's claimed nervous condition, namely, that it contradicts the conclusion he was afflicted with a pre-existing condition that was not aggravated by service. Thus, this evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that new and material evidence has been submitted, and the Veteran's claim for service connection for an acquired psychiatric condition will be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, bipolar type with severe depression (claimed as PTSD, depression and nervous condition). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Court of Appeals for Veterans Claims has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000). A pre-existing disability or disease will be considered to have been aggravated by active military service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304 (b)(1). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). Here the government has not met the burden for rebutting the presumption of soundness as the record fails to show by clear and unmistakable evidence that the Veteran had a pre-service psychiatric disorder that was not aggravated by service. The Board notes that the Veteran self-identified having problems with nerves in his January 1971 pre-service report of medical history, further clarifying the issue in a treatment excerpt from later that month where he asked for his “valium” which he used for dealing with his brother’s death. However, the Veteran's entrance medical examination contains no notation of any psychiatric problems. Further, while the service medical evaluation board concluded there was a pre-existing psychiatric disorder that was not aggravated by service, the August 2018 Psychologist report reflects that the Veteran’s condition, currently diagnosed as schizoaffective disorder, bipolar type with severe depression began in service, and increased in severity beyond the expected course during service. This report found the Veteran simply exhibited a grief reaction to his brother’s death in Vietnam prior to service, and that a formal psychiatric illness then began during service. Following entry into service and without a notation of any psychiatric problems upon entry, the Veteran was diagnosed and medically discharged as a result of a psychiatric disorder. On the face of this evidence, the Board cannot conclude that the VA has met the burden of showing that the Veteran's psychiatric disability clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. In fact, the evidence suggests the opposite, that the Veteran's status deteriorated while in-service. Consequently, the Veteran must be presumed to have been sound upon entry. With the Veteran presumed sound at service entrance, the facts are in favor of a finding of entitlement to service-connection because the Veteran was diagnosed with an acquired psychiatric disorder while in-service. Accordingly, the in-service incurrence, present disability, and nexus element are all met, and entitlement to service-connection for schizoaffective disorder, bipolar type with depression, is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Colicelli