Citation Nr: 18155135 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-38 464 DATE: December 3, 2018 ORDER New and material evidence has not been received to reopen the service connection claim for a psychiatric disorder, including schizophrenia, and the claim is denied. FINDINGS OF FACT 1. A Department of Veterans Affairs (VA) Regional Office (RO) most recently denied the Veteran’s claim of service connection for schizophrenia in a May 2007 rating decision. The Veteran was properly notified of this decision and he did not appeal it. 2. Some of the additional evidence received since the May 2007 RO decision denying service connection for schizophrenia is not cumulative or redundant of evidence already of record and considered in that decision but does not raise a reasonable possibility of substantiating the claim for service connection for schizophrenia. CONCLUSIONS OF LAW 1. The May 2007 rating decision that denied service connection for schizophrenia is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 20.1103. 2. New and material evidence not having been received, the claim for service connection for a psychiatric disorder, including schizophrenia, is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 20, 1978 to March 15, 1978. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in September 2015. 1. New and material evidence In its September 2015 rating decision, the RO found that new and material evidence had been received to reopen the previously denied claim for service connection for schizophrenia (claimed as mental conditions). Regardless of how the RO ruled on this question, the Board must determine whether there is new and material evidence to reopen this claim, before proceeding further, because this initial determination affects the Board’s jurisdiction to adjudicate this claim on its underlying merits. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, and a timely substantive appeal is received after issuance of a statement of the case. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence is defined as 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 determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium). See also Duran v. Brown, 7 Vet. App. 216 (1994) (“Justus does not require the Secretary to consider the patently incredible to be credible”). 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 and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran has filed a petition to reopen a claim for entitlement to service connection for a psychiatric disorder, to include schizophrenia. This claim was previously denied in prior rating decisions in November 1988, March 1989, August 1989, November 1989, May 1991, August 1991 and May 2007. In his original September 1988 claim of service connection, the Veteran contended that his previous nervous condition was aggravated during basic training in service in February 1978. In a September 1988 statement, he asserted that his preexisting mental problems were aggravated by his Army service. A November 1988 rating decision denied service connection for a nervous condition on the basis that service treatment records were negative for such a condition. By a letter dated in December 1988, the Veteran was notified that the evidence did not establish service connection for schizophrenia. As noted, the claim of service connection for a psychiatric disorder to include schizophrenia was denied in March 1989, August 1989, and November 1989. The November 1989 decision determined that the recently received private medical records dated in 1975 and 1976 showed that his schizophrenia clearly existed prior to service. An additional service treatment record (dated February 13, 1978) was received from the Veteran in April 1991, and in rating decisions dated in May and August 1991, the RO denied service connection for schizophrenia, finding that the evidence did not show that the preexisting psychiatric disorder was permanently aggravated by service. The Veteran was notified of the August 1991 decision by a letter dated in September 1991 and he did not perfect a timely appeal of that decision. No additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of notice of the rating decision. See 38 C.F.R. § 3.156; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the August 1991 rating decision became final as to this issue based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. The Veteran filed an application to reopen a claim of service connection for a psychiatric disorder, to include schizophrenia, in January 2007. A May 2007 rating decision denied service connection for schizophrenia on the basis that new and material evidence had not been received to reopen the claim. The Veteran was notified of this decision and he did not appeal it, and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of notice of the rating decision. See 38 C.F.R. § 3.156; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 2007 rating decision became final as to this issue based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. The evidence of record at the time of the prior final May 2007 rating decision included service treatment records, including a February 13, 1978 in-service Community Mental Health Activity Report, VA and private medical records, some of which showed treatment for schizophrenia before and after service, part of a decision from the Social Security Administration (SSA) showing that he was in receipt of benefits, an August 1980 petition by a police officer to a Court for hospital admission of the Veteran as he was a danger to himself or others, and the Veteran’s contentions that his preexisting schizophrenia was aggravated by service. Additional evidence received since the prior final decision includes duplicate copies of pre-service private medical records and service treatment records, including the February 13, 1978 record listed above. A review of the claims file reveals that these medical records were previously on file at the time of the prior final May 2007 decision. Thus, they are duplicative, not new. Additional evidence received since the prior final May 2007 decision includes VA medical records showing that the Veteran continues to have a psychiatric disorder diagnosed as schizophrenia. The additional medical evidence that pertains to this disorder is cumulative, not new, as it merely shows the continued existence of the condition. The evidence is not material because the evidence could not reasonably substantiate the claim were it to be reopened as the evidence does not have any tendency to show that the Veteran has a current disability that is related to service. Additional evidence received since the prior final decision also includes medical records pertaining to other medical conditions. Such records are new, but not material, as the evidence does not have any tendency to show that the Veteran has a current psychiatric disorder that is related to service. Additional evidence received since the prior final decision also includes a report of a September 2015 VA examination which reflects that the examiner diagnosed schizophrenia and opined that the Veteran's schizophrenia clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. This evidence is new, but not material, as it does not tend to show that the Veteran has a current psychiatric disorder that is related to service. See Villalobos v. Principi, 3 Vet. App. 450 (1992) (noting that evidence that is unfavorable to a claimant is not new and material). During the course of the appeal, the Veteran and his representative have asserted that his preexisting schizophrenia was aggravated by service. These statements are duplicative, not new, as the Veteran is merely reiterating the same arguments he made before the prior denial of his claim in May 2007. See Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by the decisionmaker at time of prior final disallowance of the claim is not new evidence); see also Reid v. Derwinski, 2 Vet. App. 312, 315 (1992); Untalan v. Nicholson, 20 Vet. App. 467 (2006) (New arguments based on the same evidence of record at the time of the previous final denial do not constitute the presentation of new and material evidence.). (Continued on the next page)   None of the additional evidence, even when considered in combination with the other evidence of record, is new and material. Thus, this evidence does not relate to an unestablished fact necessary to substantiate this claim and does not raise a reasonable possibility of substantiating this claim. The prior denial is final, and the claim for service connection for a psychiatric disorder, including schizophrenia, is not reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. L. Wasser, Counsel