Citation Nr: 18150878 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 16-10 857 DATE: November 16, 2018 ORDER New and material evidence has not been received to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder, diagnosed as schizophrenia. FINDINGS OF FACT 1. A February 1997 rating decision denied service connection for a psychiatric disorder, diagnosed as schizophrenia. The Veteran did not appeal, and did not submit new and material evidence within one year. 2. A January 2002 rating decision denied reopening a claim of entitlement to service connection for a psychiatric disorder, diagnosed as schizophrenia. The Veteran did not appeal, and did not submit new and material evidence within one year. 3. The evidence associated with the file after the January 2002 rating decision does not include evidence that relates to an unestablished fact necessary to substantiate the claim, is either cumulative or redundant of evidence already of record, and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a psychiatric disorder, diagnosed as schizophrenia. CONCLUSIONS OF LAW 1. The February 1997 and January 2002 rating decisions denying service connection for a psychiatric disorder, diagnosed as schizophrenia are final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. The evidence received after the January 2002 rating decision is not new and material as to the claim for service connection for a psychiatric disorder diagnosed as schizophrenia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1978 through July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In the Veteran’s substantive appeal, he requested a hearing before the Board. See February 2016 substantive appeal. However, the Veteran withdrew his request for a hearing thereafter. See June 2017 response to hearing clarification letter. The Board notes that although other psychiatric diagnoses are of record, the issue on appeal is as listed above because only schizophrenia was previously noted and the Veteran did not seek entitlement to service connection for a non-schizophrenia psychiatric disorder. See 38 U.S.C. § 7104(b); Velez v. Shinseki, 23 Vet. App. 199 (2009) (holding that if a claim to reopen is submitted and the records only show additional or other mental health disorders, this is not new and material to the previously denied claim, but could be a distinct claim); Boggs v. Peake, 520 F.3d 1130 (Fed. Cir. 2008) (claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims). If the Veteran wishes to file a claim regarding a different psychiatric disorder that has not been subject to a prior rating decision, he is free to do so on remand. The Veteran asserts new and material evidence has been submitted, which warrants reopening the claim for entitlement to service connection for an acquired psychiatric disorder, diagnosed as schizophrenia. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).   The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, 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, 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). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). In a February 1997 rating decision, the RO denied service connection for a psychiatric disorder, diagnosed as schizophrenia, because the Veteran’s psychiatric disorder existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.   In a January 2002 rating decision, the RO denied reopening the Veteran’s claim for service connection for a psychiatric disorder, diagnosed as schizophrenia, because new and material evidence had not been submitted to show that the Veteran’s schizophrenia was incurred in or aggravated by his military service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 2002 rating decision included the Veteran’s service treatment records, a January 1997 VA examination, medical reports from the Social Security Administration (SSA), VA treatment records, and private treatment records. Service treatment records show the Veteran was discharged from service following hospitalization and treatment for schizophrenia. See April 1980 medical board report. The 1997 VA examiner noted symptoms suggestive of schizophrenia over the last eighteen years based on the Veteran’s reporting, but provided no diagnoses or opinions. The medical reports from SSA included an October 1998 examination in which a physician diagnosed schizophrenia and opined that the Veteran exhibited residual delusions of thought related to his alleged duties during service. VA treatment records and private treatment records dated June 1980 through December 1985 show treatment for schizophrenia, including involuntary commitment for medication stabilization. Evidence submitted after the January 2002 rating decision includes VA treatment records from 2012 through 2016. In October 2013, the Veteran was diagnosed with unspecified depressive disorder. In June 2014, the Veteran reported antidepressants had some efficacy. In April 2015, the Veteran reported having a nervous breakdown in service and had been dealing with his current issues since service; he was again diagnosed with unspecified depressive disorder. In December 2015, the Veteran reported his mental health problems began during active duty and that he was diagnosed with schizophrenia; VA treatment records show current treatment at that time was for major depressive disorder, recurrent, mild, and alcohol use disorder. The Board finds that new and material evidence has not been presented. The evidence, including VA treatment records and the Veteran’s statements, is new because it was not previously submitted to VA. The evidence is not material because it does not relate to unestablished facts necessary to establish the claim - evidence that preexisting disability was worsened by service or that schizophrenia was caused by service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the Veteran’s statements regarding his psychiatric history are duplicative and cumulative of statements previously in the record. See 38 C.F.R. § 3.156(a). Medical records confirm psychiatric diagnoses but do not address whether schizophrenia was caused by, or had onset in, active service. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it does not raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is not reopened. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Martinez, Associate Counsel