Citation Nr: 18148663 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 14-39 964 DATE: November 8, 2018 ORDER New and material evidence has not been submitted and the petition to reopen the claim for service connection for schizophrenia is denied. FINDING OF FACT 1. The RO decision that severed service connection for schizophrenia was confirmed by the Board in a decision of March 1982 and which time it was determined that the rating decision of May 1973 was clearly and unmistakably erroneous. 2. A January 2009 rating decision denied service connection for schizophrenia; the Veteran was advised of the RO decision and his appellate rights. 3. The Veteran did not initiate an appeal from the RO decision within one year nor was new and material evidence received within one year. 4. Additional evidence received since the RO decision of January 2009 is cumulative or redundant of the evidence of record at the time of that decision, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The RO decision of January 2009 denied the claim for service connection for schizophrenia was final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, and 20.1103. 2. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for schizophrenia. 38 U.S.C. §§ 5108; 38 C.F.R. §§ 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to February 1972. This matter is on appeal from a March 2014 rating decision. The severance of service connection for schizophrenia was confirmed by the Board in a decision of March 1982 and which time it was determined that the rating decision of May 1973 was clearly and unmistakably erroneous. The Board found that the Veteran’s psychosis was not the result of any injury or disease incurred in or aggravated by service and that he did not serve for 90 days and the presumption did not apply. The Veteran attempted to reopen his claim for connection for schizophrenia, and in January 2009, the denied his request to reopen the claim. He did not file an appeal and the decision became final. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Id. As noted above, the October 1980 RO decision to sever service connection for schizophrenia was confirmed by the Board in May 1982 and it was determined that the rating decision of May 1973 (which had granted service connection for schizophrenia) was clearly and unmistakably erroneous. The Board found that the Veteran’s psychosis was not the result of any injury or disease incurred in or aggravated by service and that he did not serve for 90 days and the presumption did not apply. In order to reopen this claim, the Veteran must submit new evidence that would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. In support of his claim, the Veteran submitted a letter from Nanette A. Ortiz Valentin, M.D., dated April 2013. In this letter, Dr. Ortiz provides a history of the Veteran’s symptoms as related to her by the Veteran and provides an assessment of his current disability. She does not relate his current diagnosis to the Veteran’s service or a service-connected disability, but to a broken rib. The question of whether the Veteran’s rib was broken has been addressed by the RO and more recently by the Board in the most recent decision in this matter dated in December 1999 and does meet the criteria of new and material. Based on a review of the record, the Board finds that even though the additional evidence is new, it does not address an unestablished fact needed to substantiate the claim. Since the evidence does not meet the definition of material evidence, it does not satisfy the low threshold for reopening a claim. See Shade, supra. As new and material evidence has not been received, the petition to reopen the claim for service connection for schizophrenia is denied. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Davis, Associate Counsel