Citation Nr: 18157346 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16 53-710A DATE: December 12, 2018 ORDER The application to reopen the claim for service connection for schizophrenia is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for schizophrenia is remanded. FINDINGS OF FACT 1. In a January 1998 rating decision, the RO denied service connection for schizophrenia; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the January 1998 rating decision, relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for schizophrenia. 3. Resolving reasonable doubt, the Veteran’s tinnitus is etiologically related to military noise exposure. CONCLUSIONS OF LAW 1. The January 1998 rating decision denying service connection for schizophrenia is final. 38 U.S.C. §§ 5108, 7105(2012); 38 C.F.R. §§ 3.156, 19.129, 19.192 (2017). 2. New and material evidence has been received regarding the claim for service connection for schizophrenia, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1154(a), 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from March 1972 to September 1975. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, a Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Service Connection 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for schizophrenia In January 1998, the RO denied the Veteran’s claim for entitlement to service connection for schizophrenia. The Veteran was notified of this denial, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its January 1998 denial, the RO indicated there was no evidence of schizophrenia during service. The evidence reviewed consisted of STRs and VA treatment records. The Veteran submitted a request to reopen the previously denied claim of service connection for schizophrenia. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the January 1998 denial includes a statement in support of service connection for schizophrenia, VA treatment records, as well as the Board hearing. The Veteran stated that as early as 1975, when he was discharged from service, he began hearing voices in his head. He reported in 1976 he murdered his father in law, and was found guilty but not guilty by reason of insanity, and was sent to a mental ward. VA treatment records reveal a history of schizophrenia. These statements of continuity of schizophrenia, and indications of current condition, could reasonably substantiate the claim. Thus, the claim is reopened. 2. Entitlement to service connection for tinnitus The Veteran contends that his tinnitus is attributed to service. Service treatment records are negative for reports of tinnitus. In August 2014, the Veteran underwent a VA examination. He reported military noise exposure as a result of exposure to tanks. He served as an armored crewman and was exposed to a significant amount of hazardous noise. He did not report tinnitus, but reported hearing voices. The examiner indicated a positive nexus between hearing loss and service. At the May 2018 Board hearing, the Veteran reported serving as a tanker gunner and a transportation truck driver during service. He reported being given small ear plugs that he did not always use. He reported being exposed to loud noise during service, and first noticing ringing in his ears during service. He stated that over the prior 40 years, the tinnitus is always there. The Veteran has asserted that he had tinnitus as a result of noise exposure during service. A veteran is competent to testify regarding facts or circumstances that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 465, 471 (1994) (“[C]ompetent testimony is... limited to that which the witness has actually observed, and is within the realm of his personal knowledge”). Although there is no positive opinion of record, the Veteran has conceded noise exposure, and there is competent and credible testimony indicating tinnitus since service. As such, all reasonable doubt is resolved in the Veteran’s favor, and service connection for tinnitus is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for schizophrenia is remanded. The Veteran has asserted schizophrenia is related to his service. A March 1996 treatment record from the Dallas VAMC, details a history of cocaine dependence and depression. The Veteran reported hearing voices, and having murdered his step father in 1976. An assessment was made to rule out schizophrenia. In April 1996, he was diagnosed with paranoid schizophrenia, cocaine abuse, and cannabis abuse. In May 1996 non-service connected pension was granted, with cites to the Dallas VAMC treatment records documenting schizophrenia. VA treatment records detail numerous visits for schizophrenia. At the Board hearing the Veteran reported that in 1975 he began to hear voices in his head. He stated that in 1976 he killed his father in law, and was found guilty, but not guilty but reason of insanity. He reported being sent to a mental hospital, in Los Angeles. He could not recall the name of the hospital, he was admitted to. The Veteran has not been afforded a VA examination. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The low threshold for triggering the duty to provide an examination has been crossed. An examination is needed to determine if the Veteran’s schizophrenia is related to his military service. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all ongoing private and VA treatment records. 2. Arrange for the Veteran to undergo a VA examination to determine the current the nature and etiology of the claimed psychiatric disorder. Following a review of the claims file, the examiner should provide an opinion for the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s schizophrenia is related to his service? The examiner is asked to address the Veteran’s contentions. The examiner is asked to provide a rationale for all opinions reached H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Skiouris, Associate Counsel