Citation Nr: 18159396 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 17-30 397 DATE: December 19, 2018 ORDER The application to reopen a claim for entitlement to service connection for diabetes mellitus is denied. New and material evidence has been received to reopen a claim for entitlement to service connection for schizophrenia; the appeal is granted to this extent only. Entitlement to an effective date prior to November 8, 2013 for the grant of service connection for migraines is denied. REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for schizophrenia is remanded. Entitlement to an increased rating greater than 50 percent for service-connected migraines is remanded. FINDINGS OF FACT 1. In a December 2012 rating decision, service connection for diabetes mellitus and schizophrenia was denied. The Veteran did not perfect an appeal from this denial, nor was new and material evidence submitted received within one year. 2. Evidence received since the December 2012 rating decision is cumulative of evidence previously considered and fails to raise a reasonable possibility of substantiating the claim of entitlement to service connection for diabetes mellitus. 3. Additional evidence received since the December 2012 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim for entitlement to service connection for schizophrenia. 4. The first evidence of record indicating that the Veteran filed a claim for service connection for migraines was received by Veterans Affairs on November 8, 2013. CONCLUSIONS OF LAW 1. The December 2012 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017). 2. Evidence received since the December 2012 rating decision is not new and material to the issue of entitlement to service connection for diabetes mellitus; the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. Evidence received since the December 2012 rating decision is new and material to the service connection claim for schizophrenia; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for an effective date prior to November 8, 2013 for the grant of service connection for migraines have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 8100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 through April 1978 and from March 1979 through April 1980. The Board notes that additional VA treatment records have been added to the claims file following the September 2016 statement of the case. Generally, a supplemental statement of the case (SSOC) must be issued by the Agency of Original Jurisdiction (AOJ) when new evidence is received. An exception to this general rule is when the additional evidence is either duplicative or not relevant to the issue on appeal. 38 C.F.R. § 20.1304(c). In the present case, the Board finds that the newly obtained evidence is not relevant to the issues decided herein. Although the evidence reflects the Veteran continues to receive treatment for his diabetes mellitus and migraines, none of the records provide a nexus opinion lining his diabetes to his active duty service or any indication he submitted a claim for entitlement to service connection for migraines prior to November 8, 2013. Accordingly, the Board may proceed with the adjudication of the pending claims and an SSOC is not required. New and Material Evidence Although the Regional Office (RO) initially recognized that the Veteran’s claims for entitlement to service connection for diabetes mellitus and schizophrenia had previously been denied (see April 2014 VCAA notice letter and August 2014 rating decision), it apparently reopened the claims and decided them on the merits in the Statement of the Case and Supplemental Statement of the Case. Regardless of whether the RO determined that new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’d, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384; see also Jackson v. Principi, 265 F.3d 1366, 1369 (2001). Entitlement to service connection for schizophrenia has been denied several times, beginning in 2008. The last final rating decision was December 2012 denying reopening of this claim. Service connection for diabetes mellitus was also denied in the December 2012 rating decision. The Veteran neither perfected an appeal as to this decision, nor was new and material evidence submitted within one year, and the decision became final. See 38 C.F.R. § 20.1103. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus The Veteran seeks to reopen his claim for entitlement to service connection for diabetes mellitus. The claim was initially denied because the RO found no evidence of a diagnosis of or treatment for diabetes mellitus in service. Additionally, there was no evidence of a nexus between any current diabetes mellitus and his period of active service. Since that time, the Veteran has submitted medical records reflecting that he has consistently been treated for diabetes mellitus since his diagnosis in February 2010. However, there are no statements, medical or lay, asserting that diabetes mellitus is etiologically related to an in-service injury, event, or disease. The Board finds that the evidence received since the December 2012 rating decision does not raise a reasonable possibility of substantiating the claim. The medical evidence obtained is essentially cumulative of the evidence previously considered. While the medical evidence shows that the Veteran has a current disability, there is no evidence of in-service treatment for diabetes mellitus or competent medical evidence of a nexus to service. As the evidence does not meet the definition of material evidence, it does not satisfy the low threshold for reopening a claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the application to reopen the claim for entitlement to service connection for diabetes mellitus must be denied. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for schizophrenia The Veteran also seeks to reopen his claim for entitlement to service connection for schizophrenia. This claim was previously denied because the Veteran’s service treatment records were absent of complaint or treatment for a psychiatric condition and there was no evidence of a nexus between his currently diagnosed schizophrenia and his period of active service. In support of his claim to reopen, the Veteran submitted a private nexus statement dated in November 2016. After reviewing the claims file and interviewing the Veteran, the examiner opined that it was at least as likely as not that the Veteran’s schizophrenia began during his first period of active duty and was aggravated by his second period of active duty. Additionally, the examiner stated that the Veteran’s schizophrenia was aggravated by his service-connected migraines. As the November 2016 private nexus statement relates to an unestablished fact, namely identifying a possible nexus between the Veteran’s schizophrenia and his active duty service, this evidence is considered material to adjudication of the claim. Therefore, the evidence is both new and material, and the claim must be reopened. See Shade, 24 Vet. App. 110; 38 C.F.R. § 3.156(a). Prior to adjudicating the claim on the merits, the Board finds additional development necessary, and the claim is subject to the following REMAND. Earlier Effective Date 3. Entitlement to an effective date prior to November 8, 2013 for the grant of service connection for migraines The Veteran was granted an effective date of November 8, 2013 for service connection for migraines. He argues in his March 2015 notice of disagreement that he should be entitled to an earlier effective date. The effective date of an award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. VA must look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. See 38 U.S.C. § 5102, 38 C.F.R. §§ 3.1(p), 3.155(a). All such possible claims should be generously construed. Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013 (regarding pro se applicants). However, an informal claim must identify the benefit sought and evidence an intent to apply for the benefit. See 38 C.F.R. §§ 3.1(p), 3.155(a). The Board finds that an earlier effective date for service connection for migraines is not warranted. There are no communications of record from either the Veteran or an authorized representative from before November 8, 2013 that the Board could construe as either a formal or informal service connection claim for migraines. Although the Veteran claimed entitlement to service connection for schizophrenia and diabetes mellitus several times prior to his November 8, 2013 informal claim, none of those previous communications list headaches or migraines as a disability being claimed. The Veteran also claimed entitlement to service connection for a sinus condition in October 1984. However, that claim was denied in December 1984 and the Veteran did not appeal that decision. There are no statements of record prior to the November 8, 2013 claim for entitlement to service connection for headaches that could be construed as a claim for service connection. The Board notes that VA treatment records reflect the Veteran was treated for headaches and migraines prior to November 8, 2013. However, medical evidence reflecting treatment and diagnosis of a condition does not constitute, by itself, an informal claim for service connection under 38 C.F.R. § 3.155(a), “because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek” service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006). In summary, there is nothing in the record that could be construed as a claim for benefits, either formal or informal, prior to November 8, 2013 that would warrant an earlier effective date for service connection for migraines. The claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder is remanded. The Veteran asserts he has a sleep disorder that is related to his active duty service. His service treatment records reflect that he reported frequent trouble sleeping on his March 1979 entrance examination. A diagnosis of insomnia is written in the section for physician’s notes. VA treatment records reflect the Veteran was diagnosed with a breathing-related sleep disorder following an October 2014 non-VA sleep study. A copy of this sleep study should be associated with the claims file, if available. Post-service VA treatment records also continue to reflect the Veteran’s disordered sleep and difficulty sleeping. However, it is unclear whether the Veteran’s disordered sleep is associated with his schizophrenia, or if he has a separate and distinct sleep disorder diagnosed. As such, an examination should be scheduled to address the nature and etiology of the Veteran’s claimed sleep disorder. 2. Entitlement to service connection for schizophrenia is remanded. The Board does not find the November 2016 private nexus opinion sufficient to grant the claim at this time. While the private examiner noted the Veteran’s claims file was reviewed, no discussion of the Veteran’s attempt to reenlist in 1982 following his general discharge or the finding that he was mentally competent without evidence of psychosis in 1980 is included in the opinion. Moreover, as there is no medical evidence or personnel records from the Veteran’s first period of active duty from October 1977 through April 1978, and he separated from that period with an honorable discharge, the opinion that he began experiencing symptoms of schizophrenia during that period is completely speculative. The only evidence relied on to establish continuity of symptomatology are lay statements provided by the Veteran and his family members describing outbursts of anger and use of drugs and alcohol following his discharge in 1980. The Board will not address the credibility of those statements at this time, but notes that none of the lay statements indicate the Veteran’s symptoms began during his October 1977 through April 1978 period of active duty. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for schizophrenia because no VA examiner has opined whether the Veteran’s schizophrenia is either directly related to his active duty service or aggravated by his service-connected migraines. Additionally, the claims file indicates the Veteran was awarded Social Security disability benefits due to his schizophrenia. On remand, those records should be obtained and associated with the claims file. 3. Entitlement to an increased rating greater than 50 percent for service-connected migraines is remanded. The Board no discretion but to remand this issue as the provisions of 38 C.F.R. § 19.31 require that the AOJ issue a supplemental statement of the case if additional pertinent evidence is received and the case has not yet been certified for appeal. 38 C.F.R. § 19.31. The record shows that the AOJ received additional medical evidence in the form of VA treatment records after the latest statement of the case was issued in September 2016, but before the case was certified to the Board in October 2017. Because the additional evidence contains medical evidence pertaining to the issue on appeal, a remand is required so that the AOJ can adjudicate the claim in light of the new evidence. 38 C.F.R. § 19.31. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain the Veteran’s VA treatment records for the period from June 2017 to the present and any outstanding private treatment records, to include the October 2014 private sleep study referenced in his VA treatment records. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his diagnosed schizophrenia. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that schizophrenia: (a.) had its onset during service or is otherwise related to an in-service injury, event, or disease; (b.) is proximately due to his service-connected migraines; or (c.) was aggravated beyond its natural progression by his service-connected migraines. A complete rationale must be given for all opinions and conclusions expressed. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed sleep disorder. In particular, does the Veteran have a separate and distinct medical condition manifested by a sleep disorder, or are these complaints of troubled sleep part of the symptom complex for his schizophrenia? If the examiner determines the Veteran has a diagnosed sleep disorder that is separate and distinct from his schizophrenia, provide the following opinions: (a.) Does the Veteran have a sleep disorder that is the same as his insomnia noted on his March 1979 entrance examination? (b.) If the Veteran does have a currently diagnosed sleep disorder that is the same as his insomnia diagnosis, the examiner must opine whether it is clear and unmistakable that the Veteran’s preexisting diagnosis of insomnia noted on his March 1979 entrance examination was NOT aggravated by his active duty service. (c.) If any currently diagnosed sleep disorder is not the same as his preexisting insomnia, whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder had its onset during service or is otherwise related to an in-service injury, event, or disease. A complete rationale must be given for all opinions and conclusions expressed. (Continued on the next page)   5. After completing the requested actions and any additional notification and/or development deemed warranted, if the benefits sought on appeal are denied, the Veteran must be furnished a supplemental statement of the case that considers all the evidence since the last statement of the case. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel