Citation Nr: 18158788 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-41 752 DATE: December 17, 2018 ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for schizophrenia, paranoid type. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran was denied service connection for schizophrenia, paranoid type, in a June 1982 rating decision; and the claim was reopened and subsequently denied in a January 1998 rating decision. 2. The Veteran appealed this decision and the Board of Veterans’ Appeals denied the claim in January 1999. 3. No appeal was submitted in response to that January 1999 decision within the requisite time-period; therefore, the January 1999 decision is final. 4. Evidence received since the January 1999 Board of Veterans’ Appeals decision is cumulative and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for schizophrenia, paranoid type, and does not raise a reasonable possibility of substantiating the claim. 5. The probative, competent evidence is against finding that the Veteran has PTSD related to active service. CONCLUSIONS OF LAW 1. The January 1999 Board of Veterans’ Appeals decision, which denied to the Veteran’s claim for entitlement to service connection for schizophrenia, paranoid type, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the January 1999 Board decision in support of the claim of entitlement to service connection for schizophrenia, paranoid type, is not new and material; thus, the claim is not reopened. 38 C.F.R. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service in the United States Air Force from September 1981 to April 1982. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied the issue of service connection for PTSD in the first instance and denied reopening the issue of service connection for schizophrenia. The Veteran’s claim of entitlement to service connection for schizophrenia, paranoid type, was initially adjudicated in May 1982 and was later reopened, remanded, and then subsequently denied by the Board in January 1999. The Veteran did not appeal or submit new and material evidence within one year of the January 1999 decision; therefore, the question of whether to reopen the issue of service connection for schizophrenia must be addressed prior to reaching a decision on the merits of the claim. In July 2016 the Veteran testified before a Decision Review Officer at the RO. A transcript of the hearing has been prepared and added to the record. Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board notes that additional medical examinations were order prior to the its January 1999 decision, and appropriate notice of the Veteran’s right to appeal was provided following the issuance of said decision. Furthermore, the Veteran’s recently submitted brief states that the record is complete and that no additional arguments are presented to show a permanent aggravation of the Veteran’s schizophrenia–the bases of the previous denial. If this is the case, then the appropriate action would have been to appeal the Board’s prior denial; however, the failure to timely appeal the decision requires the Board determine whether new and material evidence exists before it may touch the merits of the entitlement to service connection for schizophrenia issue. New and Material Evidence: Schizophrenia, Paranoid Type Reopening a claim for service connection that has been previously disallowed requires that new and material evidence be presented or secured since the last disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273. 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). 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. Thus, new and material evidence can be neither cumulative nor redundant of the evidence of record that existed when the prior denial of reopening the claim was issued. 38 C.F.R. § 3.156. The newly submitted evidence must raise a reasonable possibility of substantiating the claim. It is presumed all evidence of record was considered and applied when the Agency of Original Jurisdiction (AOJ) previously denied reopening the claim. For purposes of determining whether to reopen a claim, the credibility of recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, the Board 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 consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to assist. Id. at 118. The Board has reviewed all evidence, both lay and otherwise, in a light most favorable to the Veteran; however, the Board concludes that no new and material evidence has been submitted since the January 1999 decision by the Board, which denied on the premise that the Veteran’s schizophrenia clearly and unmistakably pre-existed active service and that it was not aggravated beyond its normal progression by service. Prior to issuing that decision, the Board had remanded for a VA medical examination, which showed that shortly after entering service, the Veteran exhibited bizarre and paranoid delusions and reinforced the statements made during the February 1982 examination that said these delusions existed prior to service. Specifically, in the February 1982 examination, it mentioned that the Veteran concocted an elaborate and scientifically-questionable business plan to rid the world of toxic dust. As support for the position that these bizarre ideas pre-existed service, the examiner identifies that the Veteran had contacted business firms prior to service to pitch the idea. After the Board’s January 1999 denial of service connection for schizophrenia, the Veteran has resubmitted pages from the February 1982 medical examination; duplicative military personnel records that describe the bizarre behavior during service; a private medical exam that only discusses the Veteran’s medications and, generally, his current level of disability; and lay statements that do not substantiate any missing element of his previously denied schizophrenia claim. These are the only documents that were submitted regarding the claim for service-connection schizophrenia, and are either cumulative or duplicative of evidence that existed in the record when the claim was first decided. None of the submitted evidence substantiates a missing element of the claim, namely that the Veteran’s schizophrenia did not preexist service or was permanently increased in severity beyond the normal progression of the disease. The Veteran’s opinion that his schizophrenia was either incurred in or aggravated by service is duplicative of the Veteran’s prior statements. In the absence of a compelling recent medical examination, or the like, opining that the Veteran’s schizophrenia either originated in or was aggravated beyond its normal progression by service, the Board cannot reach a decision on the merits of the Veteran’s schizophrenia claim. Therefore, the Veteran’s claim to reopen the entitlement to service connection issue for schizophrenia is denied. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty during active military service or, if pre-existing such service, was aggravated by said service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Generally, to prove service connection, there must be competent, credible evidence of a current disability, in-service incurrence or aggravation of an injury or disease, and a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). For PTSD specifically, evidence must be presented that shows (1) a current medical diagnosis of PTSD, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) medical evidence of a link between the claimed in-service stressor and the current PTSD symptoms. 38 C.F.R. § 3.304(f). In instances where a veteran was not given a medical examination upon entering service, or the entrance examination is not available or made inaccessible, the veteran will be presumed to be of sound health prior to service. To rebut this presumption of soundness, the Board must have clear and unmistakable evidence that the alleged disability preexisted service and then clear and mistakable evidence that the disability was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see Doran v. Brown, 6 Vet. App. 283, 286 (1994). To have a viable claim to entitlement to service connection PTSD, a veteran must be able to meet both the standard three prong analysis for service connection and be clinically diagnosed with the disability and present evidence of sufficient in-service stressors. 38 C.F.R. §§ 3.303(a), 3.304(f). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To determine whether this nexus requirement has been satisfied, the Board is obligated to review the entirety of the record and interpret veterans’ claims liberally; however, need only make reasonable efforts to corroborate claims, and not search the record to raise arguments in a veteran’s stead. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Here, the Veteran has not been clinically diagnosed with PTSD, and while the Board acknowledges a multitude of potential stressors within the Veteran’s record, none of these events occurred during the Veteran’s seven months of service. The Board’s duty to assist by providing sufficient medical examinations prior to reaching a decision on the merits is not all-encompassing to include every claim with insufficient supporting medical opinions and diagnoses. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). This duty is limited only to claims where the lacking evidentiary requirement is supported, at least circumstantially, by the evidence already existing within the record, to include service treatment records, lay statements, and medical examinations. The existence of PTSD originating in, or aggravated by, service; or a plausible nexus–all elements of the claim that are currently unsubstantiated. This conclusion does not seek to impart a medical expertise outside of the Board’s subject matter fluency, but any evidence to support these elements are currently lacking in their entirety within the record. Therefore, the Board must conclude that the Veteran has not met his burden of proof with respect to his claim for entitlement to service connection for PTSD. In the absence of a present diagnosed disability or evidence triggering the Board’s duty to assist in acquiring additional medical examinations, the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The Board finds that the preponderance of the evidence is against the Veteran’s claim and that the benefit of the doubt provision does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lherault, Associate Counsel