Citation Nr: 18154427 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-04 494 DATE: November 29, 2018 ORDER Reopening of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, nervousness, and schizophrenia, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT Entitlement to service connection for an acquired psychiatric disorder was denied in January 1986, July 1991, and September 1992 Rating Decisions, which were not timely appealed and became final; new and material evidence was subsequently associated with the claims file. CONCLUSION OF LAW The criteria for reopening entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from August 1970 to July 1974. The Veteran has several mental health diagnoses. See Cleveland VAMC records (longstanding schizophrenia and substance abuse disorder diagnoses); May 1991 Statement (the Veteran reported being admitted at a German hospital in 1974 for nervous condition); May 2013 Cleveland VAMC Hospitalization Report (admitting diagnosis of depression); October 2014 Cleveland VAMC record (past medical history includes anxiety, PTSD, and schizophrenia); September 2016 Cleveland VAMC record (PTSD diagnoses per chart). However, these collective diagnoses are construed as a single claim for entitlement to service connection for a psychiatric disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Reopening of Service Connection for an Acquired Psychiatric Disorder In general, agency of original jurisdiction (AOJ) decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. However, if new and material evidence is presented or secured with respect to a disallowed claim, the Board shall reopen the claim and review its former disposition. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence is that which is not cumulative or redundant of that previously of record; “material” evidence is that which is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). For the purpose of determining whether evidence is new and material, its credibility is generally presumed. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Entitlement to service connection for an acquired psychiatric disorder was denied in January 1986, July 1991, and September 1992 Rating Decisions based on lack of diagnosis and lack of nexus to service; notification letters containing appeal rights were mailed concurrently. The Veteran did not timely appeal the denials and they became final. Reopening of the claim was denied in an April 2013 Rating Decision based on lack of new and material evidence. The Veteran timely appealed the denial through a June 2013 Statement. In an August 2014 Rating Decision, the Agency of Original Jurisdiction (AOJ) reopened the claim, but denied service connection based on a lack of nexus between the disability and service. The Veteran timely appealed the denial through an August 2014 Notice of Disagreement. Since the prior final denials, new and material evidence was subsequently associated with the claims file. Crucially, in April 2014, the Air Force Historical Research Agency (AFHRA) verified the Veteran’s contended in-service stressor of an April 1971 helicopter crash at Edwards Air Force Base. This evidence is new, because it was not of record at the time of the prior final denials, and is material, because it sufficiently raises a reasonable possibility of substantiating the claim (if probative evidence establishes a nexus between the crash and the disability). Thus, the claim for reopening is granted. REASONS FOR REMAND 1. Service Connection for an Acquired Psychiatric Disorder The Veteran generally contends that his psychiatric disability is etiologically related to service. See October 2018 Appellate Brief. To date, the July 2014 VA opinion is the only pertinent and competent etiological opinion associated with the claims file. See June 2014 VA PTSD Examination with July 2014 addendum opinion; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, the July 2014 VA opinion is inadequate because it: (a) may be based on inaccurate factual premises due to potentially missing federal records; (b) is inconsistent with in-service performance reports; (c) lacks citations for rationale; and (d) is inconsistent with diagnoses in subsequent records. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). First, the July 2014 VA opinion may be based on inaccurate factual premises due to potentially missing federal records. In a May 1991 Statement, the Veteran reported being admitted at a German hospital in 1974 for nervous condition; however, the claims file does not contain foreign hospitalization records and there is no indication that they were sought. Further, in an August 1992 Statement, the Veteran reported being diagnosed with schizophrenia at Brecksville VAMC within a few months after discharge in 1974; a January 2014 Correspondence from a Cleveland VAMC provider confirmed that the Veteran had been a mental health clinic patient since 1974, but that computer records only dated back to the early 1990s. There is no indication that attempts to locate early VAMC records were exhausted. Thus, these records must be sought until deemed unavailable. Second, the July 2014 VA examiner based the opinion, in part, on the Veteran’s report that he had positive relationships with fellow soldiers and supervisors in service. However, that report is inconsistent with military performance reports, which seem to show a drastic personality shift about one year after the claimed stressor crash in April 1971. Specifically, the April 1971 to February 1972 report described the Veteran as always establishing an outstanding relationship with all personnel with whom he associates and very sincere and active in seeking opportunities to increase his knowledge and skill concerning his career field and related activities. Also, an April 1971 to October 1971 report described a pleasant personality, emotional stability, and excellent attitude toward his job. However, part of the February 1972 to February 1973 report described the Veteran as lacking greatly in working relations with superiors and failing to maintain a military attitude or adhere to the common standards of military courtesy. A June 1972 comment discouraging endorsement for promotion described the Veteran has consistently showing a disrespectful attitude toward his supervisors and co-workers and a disregard for regulations and orders. Further, the February 1973 to May 1973 report stated that the Veteran’s attitude had deteriorated to the extent that he no longer had the initiative, vigor, or drive that he once had and that his personal relationship with co-workers and supervisors alike was contrary to that required for highest production and quality maintenance. The Veteran described how the crash made him paranoid and have stressor-related dreams because he felt like he had “life and death powers” such that his performance could make or break an operation. Thus, it is imperative for the examiner to discuss any relationship between the Veteran’s psychiatric disability and his in-service personality shift. Third, the July 2014 VA examiner based the opinion, in part, on the rationale that: (a) “research” has shown that schizophrenia results from inherited genes, genetic mutations, and/or genes that malfunction at some point during development; and (b) “evidence” suggests that environmental stressors are not viable causal factors for schizophrenia. However, the examiner never cited the referenced “research” or “evidence.” Thus, this discrepancy must be resolved with cited rationale. Finally, the July 2014 VA examiner’s diagnoses are inconsistent with diagnoses in subsequent records. Specifically, the July 2014 VA examiner diagnosed schizophrenia, alcohol use disorder in sustained remission, cannabis use disorder in sustained remission, cocaine use disorder in sustained remission, and severe tobacco use disorder; however, the examiner concluded that the Veteran did not meet the criteria for a PTSD or any other mental health diagnosis. However, as previously mentioned, subsequent records have also diagnosed depression, anxiety, and PTSD. See May 2013 Cleveland VAMC Hospitalization Report (admitting diagnosis of depression); October 2014 Cleveland VAMC record (past medical history includes anxiety, PTSD, and schizophrenia); September 2016 Cleveland VAMC record (PTSD diagnoses per chart). Thus, the examiner must clarify the mental health diagnoses and provide etiological opinions for them all. The matter is REMANDED for the following action: 1. Seek, until deemed unavailable, any outstanding: (a) German hospitalization records from 1974; and (b) Brecksville VAMC and Cleveland VAMC mental health records beginning in 1974. 2. After completing the above, schedule the Veteran for a new mental health examination to clarify diagnoses and provide an etiological opinion. If the examiner relies on evidence or studies or any other information not contained in the claims file for the opinion given, he or she is asked to specify the source of this information. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Daus, Associate Counsel