Citation Nr: 18145559 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-24 754 DATE: October 29, 2018 ORDER New and material evidence not having been received, the application to reopen the claim for service connection for schizophrenia is denied. FINDING OF FACT The May 2014 Board decision is final. New and material evidence has not been received since the May 2014 Board decision. CONCLUSION OF LAW New and material evidence has not been received, and the claim of service connection for schizophrenia is not reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from February 1975 to March 1975, and in the United States Army Reserves from January 1978 to December 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from an February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Finally, since the statement of the case, and following certification of this matter to the Board, additional relevant evidence has been associated with the claims file, to include pertinent VA treatment records. Ordinarily, no waiver of RO consideration is necessary, as the Veteran’s substantive appeal was received after February 2, 2013. See 38 U.S.C. § 7105(e). The Board notes, however, that the VA treatment records were obtained by VA, rather than submitted by the Veteran. See 38 C.F.R. § 20.1304(c) (requiring remand for initial AOJ review of pertinent evidence submitted after notification of certification of the appeal to the Board, “unless this procedural right is waived by the appellant or representative”). The Board finds, however, as the evidence is cumulative of the evidence already considered, no waiver is necessary. In a May 2014 Board decision, the Board denied service connection for schizophrenia based on the fact that the Veteran had not served in active duty for at least 90 days during his service in the Army Reserves, or during a period of war, and did not suffer an injury to enable him to obtain the necessary veteran status, which is necessary to obtain service connection. The Veteran was notified of the adverse determination, and he did not timely appeal the determination. In a February 2015 rating decision, the RO confirmed and continued the previous denial of service connection for schizophrenia. Since the final May 2014 decision, evidence received is cumulative or does not tend to show that the Veteran's schizophrenia problems are a service-connectable disability. In general, rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In this regard, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. 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." New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304 (b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156 (c). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013). A veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d) (2017). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24) (2012); 38 C.F.R. §§ 3.6(a)-(d) (2017). The fact that a claimant has established veteran status for other periods of service does not obviate the need to establish veteran status for the period of ACDUTRA or INACDUTRA on which the claim is based. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to veteran's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999), vacated on other grounds sub nom; McManaway v. Principi, 14 Vet. App. 275 (2001) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that if a claim "relates to period of [ACDUTRA], disability must have manifested itself during that period; otherwise, period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis added in McManaway)); Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia The Veteran asserts that he is entitled to service connection for schizophrenia. New evidence received since the May 2014 Board decision includes statements by the Veteran and evidence regarding treatment for schizophrenia, which note the Veteran’s history of this condition. Having reviewed this evidence, the Board finds that this evidence is merely cumulative of the evidence of record at the time of the May 2014 Board decision, and is not material to the reason for the May 2014 denial, and that no new and material evidence sufficient to reopen the Veteran's claim has been received. Compared to the record at the time of the May 2014 decision, the additional evidence does not relate to the unestablished fact necessary to substantiate the Veteran's claim. The May 2014 decision denied entitlement to service connection because the Veteran had not served in active duty for at least 90 days during his service in the Army Reserves, or during a period of war, and did not suffer an injury to enable him to obtain the necessary veteran status, which is necessary to obtain service connection, and the evidence is therefore merely cumulative of evidence and argument previously made at the time of the previous Board denial. The Board is sympathetic to the Veteran's argument that he was diagnosed with schizophrenia in 1979, soon after his service in the Army Reserves ended in 1978, however, the Board and VA are constrained by the regulations as written. In order to reopen the Veteran's claim, new and material evidence must be submitted, not evidence that is either cumulative of the record or not material to the reason for the prior final denial. 38 C.F.R. § 3.156 (a). The Veteran's claim was previously denied because service connection may not be granted if the veteran has not established veteran status for the period in question. The Veteran offered no new and material evidence, either argument or medical records, that addresses this reason for the prior final denial, even when considering the low threshold to reopen a claim. Shade, 24 Vet. App 110. As such, reopening of the Veteran's previously denied claim is not warranted. In summary, the Board finds that no new and material evidence has been received sufficient to reopen his claim. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. R. Montalvo, Associate Counsel