Citation Nr: 1806657	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-33 239	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder.

2.  Entitlement to service connection for an acquired psychiatric disorder.

3.  Entitlement to service connection for a lower back disability.


REPRESENTATION

The Veteran represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

K. Foster, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1977 to June 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

This matter was previously before the Board in July 2015, at which time it was remanded to afford the Veteran the opportunity for a hearing.  Subsequently, the Veteran waived his right to a hearing.

In addition, the Board notes that in its July 2015 remand two issues were identified as on appeal: (1) entitlement to service connection for a lower back condition and (2) entitlement to service connection for an acquired psychiatric disorder.  Both are presently listed on the title page.  However, the Veteran's VA Form 9, perfecting his appeal to the Board, clearly indicates that he sought appeal only of the claim for service connection for an acquired psychiatric disorder.  Yet, because the Board took up this issue in the prior remand, the Board will maintain jurisdiction.  See Percy v. Shinseki, 23 Vet. App 37 (2009).

In October 2017, the Veteran's agent submitted additional evidence pertaining to his psychiatric disorder claim and noted waiver of consideration by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board may consider this evidence in the first instance.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (2012).

The issues of (1) entitlement to service connection for an acquired psychiatric disorder and (2) entitlement to service connection for a lower back condition are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  A March 1980 rating decision denied service connection schizophrenia.  The Veteran was informed of the decision but he did not appeal; nor was new and material evidence received within a year of the decision.  Therefore, the decision became final.

2.  Evidence associated with the claim file since the March 1980 rating decision is relevant and probative.


CONCLUSIONS OF LAW

1.  The March 1980 rating decision denying service connection schizophrenia is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2.  New and material evidence has been received and the claim for service connection for an acquired psychiatric disorder is reopened.  38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  In this case, the Board is reopening the issue of entitlement to an acquired psychiatric disorder.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 


Legal Criteria and Analysis

Service connection for schizophrenia was denied in a March 1980 rating decision because the Veteran's schizophrenia was found to have existed prior to service and was not aggravated therein.  The Veteran was informed of the decision and he did not appeal, nor was new and material evidence received within a year of the decision.  Therefore, the decision became final.

The RO's March 1980 decision is final based upon the evidence then of record.  A prior final decision will be reopened if new and material evidence is submitted.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).  In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits.  Evans v. Brown, 9 Vet. App. 273 (1996).

The Board notes that the applicable regulation requires that new and material evidence is evidence that has not been previously submitted to agency decision makers, which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which, by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156 (a).

The Board has made careful review of the record and finds that new and material evidence has been submitted by the Veteran.  Specifically, the Board points to an October 2017 private psychological examination submitted by the Veteran's agent.  The examination states that while the Veteran contends events of sexual assault and counseling prior to service, his debilitating symptoms of schizophrenia emerged during his military training.  For example, the Veteran started hearing voices and having visual hallucinations while in service, and he described several stressful incidents, including sexual harassment by another soldier.  Moreover, the examiner, a psychologist, opined that schizophrenia was at least as likely as not related to military service.  The Board finds this evidence relevant and probative and notes that it addresses an evidentiary defect which existed at the time of the prior denial; namely, that the Veteran's psychological disorder is related to service.  As new and material evidence has been submitted to reopen the issue of entitlement to an acquired psychiatric disorder, the Veteran's appeal, as to this issue, is granted.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).


ORDER

The application to reopen the claim for service connection for an acquired psychiatric disorder.


REMAND

The Board finds that additional development is needed prior to final adjudication of the Veteran's appeal.  First, the Board finds that additional records should be obtained and associated with the claim file.  The October 2017 private psychological evaluation indicates that the Veteran is in receipt of benefits from the Social Security Administration (SSA); however, the claim file does not contain SSA records.  Even though the exam does not specify the type of SSA benefits the Veteran is receiving, given the Veteran's age, the Board must assume he is in receipt of SSA disability benefits.  The Board acknowledges that VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). 38 C.F.R. § 3.159 (c).  Therefore, the Board will remand to obtain these records.  In addition, the Veteran indicated that prior to service he received counseling at a facility in Pennsylvania.  These records are not in the claim file and an attempt should be made to obtain them.

In addition, the Board finds that the Veteran should be afforded VA examinations for the issues on appeal.  The record reflects that the Veteran has a current diagnosis of schizophrenia.  While the most recent October 2017 private psychological evaluation, indicates that his acquired mental disorder arose in service, it does not directly address whether it was caused by service.  The Board will remand for an opinion addressing any potential nexus between the Veteran's present disability and service, including the Veteran's claims that he was exposed to chemicals while in service and sexual harassment.  The examiner is also asked to consider statements in the record made by the Veteran and his family members that indicate that he did not demonstrate symptoms of a mental disorder until after service.  In addition, the examiner is asked to address apparent discrepancies in the record.  For example, the October 2017 examiner noted that the Veteran started hearing voices and having visual hallucinations while in service and a September 1979 treatment record notes auditory and visual hallucination with inappropriate behavior.  However, a December 1979 VA examination notes no history of auditory hallucinations in the past or present.  By contrast, a February 1983 VA examination states that the Veteran's psychiatric difficulties date back to age sixteen when he experienced a nervous breakdown and was hospitalized for symptomatology related to a schizophrenia process.

The Veteran also contends that he has a lower back disability.  His VA treatment records indicate that the Veteran was seen for lancinating pain from his coccyx in March 2012.  At the October 2017 private psychological examination, the examiner described an in-service event in October 1978 in which the Veteran fell on his buttocks and was injured during a parachute jump.  The Board notes that the Veteran has never been afforded a VA examination addressing his claimed lower back disability.  Given this, and the fact that the Board is remanding for further develop, it will also remand to afford the Veteran an opportunity for an examination.

Accordingly, the appeal is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the claimed disability on appeal.  Specific attempts should be made to obtain pre-service treatment records identified in the February 1983 VA examination and October 2017 private psychological evaluation reports identifying treatment at C.C.M.C. in Pennsylvania.  (The Board notes that abbreviations are used to protect the identity of the Veteran.)  Attempts to obtain such records should be documented in the claim file.  If identified records could not be obtained, this should be noted in the claim file.

In addition, obtain records from the SSA pertaining to any award of disability benefits to the Veteran.  All attempts to fulfill this development must be documented in the claim file.  If the search for any such records yields negative results, that fact should be clearly noted and the Veteran must be informed in writing.

2.  After completing the above, schedule the Veteran for a VA psychiatric examination to address the etiology of the claimed acquired psychiatric disorder, to include schizophrenia.  The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report.  All necessary diagnostic testing should be performed.

The examiner is asked to provide a diagnosis for all psychiatric disabilities and for each disability identified, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused by the Veteran's active duty service or, if preexisting service, was aggravated therein.

In addition, the examiner should address the following: (a) the Veteran's claims that he was exposed to chemicals while in service and sexual harassment; (b) statements contained in the record made by the Veteran and his family members that indicate that he did not demonstrate symptoms of a mental disorder until after service; and (c) apparent discrepancies in the record, such as, the October 2017 examiner noted that the Veteran started hearing voices and having visual hallucinations while in service and a September 1979 treatment record notes auditory and visual hallucination with inappropriate behavior; however, a December 1979 VA examination noted no history of auditory hallucinations in the past nor present.  By contrast, a February 1983 VA examination states that the Veteran's psychiatric difficulties date back to age sixteen when he experienced a nervous breakdown and was hospitalized for symptomatology related to a schizophrenia process.

A complete rationale for all opinions rendered must be provided.

3.  After completing the development in (1) above, schedule the Veteran for an appropriate VA examination to address the etiology of the claimed low back disability.  The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report.  All necessary diagnostic testing should be performed.

The examiner is asked to provide a diagnosis for all lower back disabilities, if any, and for each disability identified, provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability was caused by the Veteran's active duty service, to include the claimed in-service accident while in a parachute jump.

A complete rationale for all opinions rendered must be provided.

If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures.  The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal must be afforded expeditious treatment.  The law requires that all issues that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs