Citation Nr: 18155282 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 16-19 191A DATE: December 3, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for schizophrenia is granted. REMANDED The issue of entitlement to service connection for schizophrenia is remanded. The issue of entitlement to compensation under 38 U.S.C. § 1151 for schizophrenia is remanded. FINDINGS OF FACT 1. In an August 2009 rating decision, the RO denied a claim of entitlement to service connection for schizophrenia. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO’s August 2009 decision is new to the record and relates to an unestablished fact necessary to substantiate the merits of the claim of entitlement to service connection for schizophrenia and raises a reasonable possibility of substantiating the claim of entitlement to service connection for schizophrenia. CONCLUSIONS OF LAW 1. The August 2009 rating decision is final as to the claim of entitlement to service connection for schizophrenia. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for schizophrenia. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to August 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Roanoke, Virginia, which denied entitlement to service connection for schizophrenia. The Veteran timely appealed the November 2014 rating decision. See November 2014 Notice of Disagreement; April 2016 Statement of the Case; May 2016 VA Form 9. The Board has recharacterized the issues on appeal in light of the procedural history of this case and the arguments raised and evidence received during the course of the appeal in order to avoid prejudice to the Veteran and to afford him every consideration. See 38 C.F.R. § 19.31. With regard to the claim to reopen the previously denied claim of entitlement to service connection for schizophrenia, the issue of entitlement to service connection for schizophrenia was previously denied on a direct basis in an August 2009 rating decision. Although the Veteran raised a new etiological theory to reopen his claim, i.e., entitlement to compensation under 38 U.S.C. § 1151, the Board notes that a claim based on a new theory of entitlement is not a new claim, but constitutes a claim to reopen the previously denied claim. Velez v. Shinseki, 23 Vet. App. 1999 (2009); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Ashford v. Brown, 10 Vet. App. 120 (1997). Moreover, although the RO adjudicated the Veteran’s claim on the merits, both a direct basis and under 38 U.S.C. § 1151, the Board must make its own determination as to whether new and material evidence has been received to reopen the Veteran’s claim. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The issues have been recharacterized accordingly. Similarly, although the issue on appeal has been characterized solely as entitlement to compensation under 38 U.S.C. § 1151, the Board has expanded the Veteran’s claim to include entitlement to service connection for schizophrenia on a direct basis. The Board is required to weigh all theories of entitlement raised either by the claimant or by the evidence of record as part of the non-adversarial administrative adjudication process. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); see also Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007) (the Secretary must look at the conditions stated and the causes averred in a pro se pleading to determine whether they reasonably suggest the possibility of a claim for a benefit under title 38, regardless of whether the appellant demonstrates an understanding that such a benefit exists or of the technical elements of such a claim). Here, in numerous statements, the Veteran has continued to assert that his schizophrenia is directly related to service. See, e.g., April 2014 Report of General Information (requesting to open a direct service connection claim for schizophrenia); November 2014 Correspondence (relating schizophrenia to service). Moreover, the Board notes that despite the RO’s characterization of the issue on appeal, the RO also adjudicated entitlement to service connection for schizophrenia on a direct basis in the November 2014 rating decision and the April 2016 statement of the case. Accordingly, the Board will consider both theories of entitlement. See Bielby v. Brown, 7 Vet. App. 260, 264-65 (1994); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (a new theory of causation or a new theory of entitlement does not constitute a new claim). The Board also acknowledges that the RO denied entitlement to service connection for posttraumatic stress disorder (PTSD) in a February 2018 rating decision. To date, the Veteran has not initiated an appeal of that decision. Under Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), VA may not limit the scope of a psychiatric claim based on a claimant’s lay attempt to label his or her subjective symptoms. See id. at 6 (holding that “the Board did not err by failing to adjudicate a separate claim for anxiety disorder and/or a schizoid disorder; rather, it erred when it failed to weight and assess the nature of the current condition the appellant suffered when determining the breadth of the claim before it.”). Essentially, Clemons prevents VA from artificially limiting the scope of a service connection claim for a psychiatric condition, such as by ignoring diagnoses supported by the record and reasonably encompassed by the claim. Clemons also aims to ensure that such claims are fully and fairly adjudicated, despite the claimant’s lay classification of his or her psychiatric symptoms. However, it does not require that VA consolidate all claims relating to psychiatric conditions, only that all such claims be fully and fairly adjudicated. Here, the Board finds that entitlement to service connection for PTSD is not currently on appeal under Clemons. The schizophrenia claim and PTSD claim were both acknowledged and adjudicated by VA. That the Veteran raised these psychiatric issues as separate claims, which the AOJ consequently adjudicated in separate rating decisions, does not violate the principles of Clemons summarized above. The AOJ permissibly adjudicated the separate claims in distinct rating decisions, and, to date, the Veteran only chose to appeal the schizophrenia claim. Therefore, the issue of service connection for PTSD is not currently on appeal. New and Material Evidence The Veteran’s claim of entitlement to service connection for schizophrenia was previously denied, and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 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; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (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). Furthermore, 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran initially filed a claim of entitlement to service connection for schizophrenia in January 1996, and the RO denied the claim in a July 1996 rating decision on the basis that the evidence failed to show the schizophrenia was related to service. Thereafter, the RO denied petitions to reopen the claim in January 1999, May 1999, and March 2005. In June 2009, the Veteran filed a petition to reopen his claim of entitlement to service connection for schizophrenia. In an August 2009 rating decision, the RO found that new and material evidence had not been submitted and denied the claim. The Veteran was notified of the decision and his appellate rights by a letter dated later that month. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The August 2009 rating decision therefore became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. In April 2014, the Veteran requested that his claim of entitlement to service connection for schizophrenia be reopened. Relevant additional evidence received since the RO’s August 2009 rating decision includes additional VA treatment records and lay statements. This evidence was not previously on file at the time of the RO’s August 2009 decision; thus, it is new. Furthermore, this evidence is material because it raises an alternative theory of entitlement, i.e., entitlement to compensation under 38 U.S.C. § 1151. Accordingly, the claim of entitlement to service connection for schizophrenia is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The underlying claim is addressed further in the Remand section below. REASONS FOR REMAND The Veteran contends that schizophrenia first manifested during his period of active duty or within one year of his discharge in August 1992. Service treatment records do not reflect any treatment or diagnoses related to schizophrenia, but in various statements, the Veteran has alleged that he was treated for depression in service. See, e.g., September 2006 VA Pension Examination Report (reporting that he sought outpatient psychiatric treatment in 1992). Additionally, in his original claim for service connection filed in January 1996, the Veteran asserted that his condition began in January 1992. In a March 1999 statement, the Veteran’s mother reported that the Veteran’s symptoms started shortly before his discharge from service after his wife left him. She also indicated that the Veteran spoke to a chaplain while still in the Navy. Post-service treatment records reflect that the Veteran was hospitalized in March 1994, with a discharge diagnosis of atypical psychosis. The Veteran has been consistently treated for schizophrenia at various VA Medical Centers (VAMCs) since January 1996. To date, the Veteran has not been afforded a VA examination with regard to his claim of entitlement to service connection for schizophrenia. In light of the evidence described above, the Board finds that the evidence as a whole meets the low threshold set forth in McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). As such, the Veteran should be afforded a VA examination in order to obtain an etiology opinion regarding his diagnosed schizophrenia. Additionally, in light of the Veteran’s and his mother’s statements regarding psychiatric care in service, on remand, the AOJ should obtain the Veteran’s complete service personnel records. The Board also notes that in-service mental health records are sometimes stored at the National Personnel Records Center (NPRC) separately from a Veteran’s other service treatment records. In light of the foregoing, a remand is required for the purpose of obtaining any such separately stored records which may exist. The Board also notes that there may be outstanding relevant private treatment records. The record reflects that the Veteran received VA mental health treatment from January 1996 to the present. However, prior to 1996, the Veteran received private mental health treatment from numerous facilities as reflected in a detailed list provided by the Veteran’s mother in November 1996. See November 1996 Correspondence. To date, there is no indication that the RO has attempted to obtain these records, which would be highly relevant to the Veteran’s claim. On remand, an attempt to obtain these records should be made. The Board finds that the 38 U.S.C. § 1151 issue should be considered concurrently with the issue of service connection for schizophrenia on a direct basis in order to avoid piecemeal adjudication of two issues with common parameters. The Federal Circuit and the Court have both held that such piecemeal litigation is to be avoided in the interest of judicial efficiency. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Holland v. Brown, 6 Vet. App. 443, 446 (1994). Here, if the direct service connection issue is granted, the § 1151 becomes moot. Moreover, development of evidence pertaining to the direct service connection issue in this particular case could also be relevant to the § 1151 issue. Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, this issue must also be remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from August 2018 to the present, documenting mental health treatment. 2. Send the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable the AOJ to obtain any additional evidence pertinent to the claim on appeal that is not currently of record, to specifically include the private mental health inpatient and outpatient treatment providers included on a letter from the Veteran’s mother stamped as received by VA on November 18, 1996. 3. Attempt to obtain any outstanding service mental health records from the National Personnel Records Center. The Board again notes that service mental health records are sometimes stored separately from other service medical records, and a specific request should be made for such separately stored records. All efforts should be made to obtain such records. If any records cannot be obtained after efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159 (e). 4. Obtain and associate with the claims file the Veteran’s complete service personnel records. All efforts should be made to obtain such records. If any records cannot be obtained after efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 (e). 5. After all available records have been associated with the claims file, afford the Veteran an appropriate VA examination for the purpose of ascertaining the etiology of the Veteran’s diagnosed schizophrenia. The entire claims file and a copy of this Remand must be made available to the examiner and the examiner shall indicate in the report that the claims file was reviewed. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Following a review of the record and an examination of the Veteran, the examiner should render opinions as to the following: (a.) Offer an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s schizophrenia had its onset in, was caused by, or is otherwise related to, the Veteran’s military service. (b.) Opine as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s schizophrenia manifested to a compensable degree within one year of service discharge, dated August 6, 1992? The examiner’s report must reflect consideration of the Veteran’s entire documented medical history and assertions and all lay evidence, particularly (1) the Veteran’s reports of experiencing stressful situations in service which made him a “nervous wreck” (March 2004 Statement); (2) records from the Veteran’s March 1994 and August 1994 psychiatric hospitalizations; (3) a March 1999 lay statement from the Veteran’s mother regarding the onset of his symptoms; (4) mental health treatment records contained within the Veteran’s SSA records; (5) VA treatment records from 1996 to the present documenting mental health treatment. A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran’s history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel