Citation Nr: 18150881 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-19 555 DATE: November 16, 2018 ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, paranoid type, and borderline personality disorder, is granted; the appeal is granted to this extent only. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, paranoid type, and borderline personality disorder, is remanded. FINDINGS OF FACT 1. In December 2006, the RO denied service connection to the Veteran’s acquired psychiatric disability. The Veteran filed a notice of disagreement in December 2006 and the RO issued a statement of the case in July 2007. The Veteran filed a timely substantive appeal in August 2007, but in June 2009, the Veteran withdrew his appeal in writing. 2. Evidence received since the December 2006 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSION OF LAW 1. The December 2006 rating decision denying the claim of service connection to an acquired psychiatric disability is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from July 1973 to July 1976. The Veteran is a Vietnam Era Veteran. The Veteran also served during Peacetime. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Jurisdiction of the file is now with the RO in Seattle, Washington. The Veteran’s claim for schizophrenia, paranoid type, and borderline personality disorder has been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). The Board notes that the Veteran requested a hearing before the Board on the Veteran’s May 2015 Form 9. However, a review of the file demonstrates that the Veteran failed to appear for scheduled hearing. As such, the Veteran has waived the Veteran’s right to a hearing and the Board will decide the claim based upon the evidence of record. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a psychiatric disability Governing regulations provide that an appeal consists of a timely 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 (2018). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2018). Under 38 U.S.C. § 5108 (2012), VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 (2012) require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-283 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a)(ii) (2018). To warrant reopening, the new evidence must not be cumulative or redundant of the evidence of record at the time of the last prior final denials of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans, 9 Vet. App. at 283; see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, 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. 38 C.F.R. § 3.156(c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The RO issued a rating decision in December 2006. This decision confirmed and continued the March 1984 rating decision on the issue of service connection for the Veteran’s acquired psychiatric disability. In March 1984, the RO denied service connection for the Veteran’s acquired psychiatric disability, as the RO found that there was no evidence of an in-service event, injury, or illness. In December 2006, the RO declined to reopen the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability, as the RO found that no new and material evidence was received. A notification letter was sent, informing the Veteran of the negative outcome of the Veteran’s claim of entitlement to service connection for an acquired psychiatric disability. See Notification Letter, dated December 2006. The Veteran submitted a notice of disagreement in December 2006, and the RO sent the Veteran a statement of the case in July 2007. The Veteran filed a timely appeal in August 2007, but withdrew the appeal, in writing, in June 2009. Therefore, the rating decision became final. 38 C.F.R. §§ 20.302, 20.1103 (2018). New evidence has been received since the December 2006 RO decision that is material to the Veteran’s claim for service connection for an acquired psychiatric disability. Specifically, the Board has received a personal statement from the Veteran asserting that the Veteran’s symptoms began while in-service. See Correspondence, dated February 2016. The Board has also received a VA examination, opining as to the etiology of the Veteran’s acquired psychiatric disability. See VA Examination, dated June 2013. This new evidence, not considered in the December 2006 rating decision, goes to the in-service event element and the nexus element, respectively, of the claim for entitlement to service connection for an acquired psychiatric disability. The Board finds that it raises a reasonable possibility of substantiating the Veteran’s claim. As such, the Board finds that the evidence is new and material for purposes of reopening the claim for an acquired psychiatric disability. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The Veteran reported to the VA examiner that the Veteran was diagnosed with schizophrenia at a VA medical center in 1977. However, a review of the file reveals that these medical records have not been associated with the file. VA’s duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency. 38 C.F.R. § 3.159(c)(2) (2018). As such, the RO should make as many requests as are necessary to obtain all outstanding VA treatment records. All attempts to obtain these records should be clearly documented in the file. Similarly, if these records are unable to be obtained, this should be clearly documented in the file. The duty to assist also includes providing a VA examination, where appropriate. 38 C.F.R. § 3.159(c)(4) (2018). VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran received a VA examination to determine the etiology of the Veteran’s acquired psychiatric disabilities in May 2013. The VA examiner noted that the Veteran had the diagnoses of schizophrenia, paranoid type; alcohol dependence in sustained full remission; and borderline personality disorder. The VA examiner further noted that the Veteran is partially transgendered, from male to female. The Veteran’s occupational and social impairment was found to be 90 percent caused by the Veteran’s schizoid disorder; the remaining 10 percent was due to the Veteran’s personality disorder. The VA examiner opined that it was less likely than not that the Veteran’s schizophrenia, alcohol dependence, or borderline personality disorder were incurred in or caused by an in-service injury, event, or illness. The VA examiner supported his findings by asserting that there were no abnormal psychiatric findings available in the Veteran’s in-service record. The Board finds that the VA examination is inadequate. The VA examiner supported his opinion, in part, by asserting that there were no psychological abnormalities found within the Veteran’s service treatment records. However, a review of the record demonstrates that in October 1975, while in service, the Veteran presented for a psychological assessment in which the Veteran was diagnosed with occupational maladjustment and secondary depression. Moreover, the VA examiner did not address the personal statements by the Veteran, which indicated that the Veteran’s symptoms began either before or during service. See Correspondence, dated February 2016 and March 2006; VA Treatment Records, dated September 1983. To be considered adequate, the examiner should consider all of the evidence of record. See Barr, 21 Vet. App. at 303; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). Moreover, the examiner did not consider the proper legal standard. The Veteran has asserted in prior medical visits that The Veteran had feelings of gender dysphoria beginning in childhood and that these feelings progressed during service. See Correspondence, dated March 2006; VA Treatment Records, dated September 1983. There was no consideration by the examiner as to whether any of the Veteran’s psychiatric disabilities pre-existed the Veteran’s entrance into service and, if so, whether these disabilities were aggravated by the Veteran’s service. As the examiner did not utilize the proper legal standard in his opinion, the Board finds that the examination is inadequate. In light of the above, the Board finds that the Veteran should be scheduled for a new VA examination upon remand. The matter is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and the Veteran’s representative, if any. 2. Obtain a psychiatric VA examination from an appropriate medical professional. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: (a.) Identify each psychiatric diagnosis pertaining to the Veteran and identify a date of onset, if possible. (b.) For each of the diagnoses identified in question (a), is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s disability was caused by the Veteran’s active service? (c.) For each diagnosis identified in question (a), was it at least as likely as not (a 50 percent probability or greater) that the Veteran’s psychiatric disability, regardless of date of onset, was aggravated (i.e., permanently increased in severity)? (d.) If so, was any increase clearly and unmistakably (obviously, manifestly, or undebatably) due to the natural progress of the disease. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of the Veteran’s claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel