Citation Nr: 1809366 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-22 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and schizophrenia. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizophrenia. REPRESENTATION Appellant represented by: Robin Hood, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to July 1984. This appeal is before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at an April 2017 videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. FINDINGS OF FACT 1. In a March 2003 rating decision, the RO, in pertinent part, denied reopening of the Veteran's claim for service connection for an acquired psychiatric disability, to include PTSD; the Veteran did not appeal the March 2003 rating decision, and no evidence was received within one year of that rating decision. 2. The evidence associated with the claims file subsequent to the March 2003 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. 3. The current acquired psychiatric disability other than PTSD, to include schizophrenia, was incurred in service. CONCLUSIONS OF LAW 1. The March 2003 rating decision, which denied reopening of the Veteran's claim service connection for an acquired psychiatric disability, to include PTSD, became final. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the final March 2003 rating decision is new and material, and the Veteran's claim of entitlement to service connection for an acquired psychiatric disability is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for an acquired psychiatric disability other than PTSD, to include schizophrenia, have been met. 38 U.S.C. §§ 1101, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Because the Veteran's claim are being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the appeal. See 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.156, 3.159. Reopening Service Connection for PTSD The Veteran seeks to reopen his claim for service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's claim for service connection for PTSD was denied in March 2003 on the basis that there was no new and material evidence. Originally, in a February 1991 rating decision, service connection was denied because the Veteran was not a combat Veteran and VA had not received stressor information. The Veteran did not appeal the March 2003 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b) and 3.156(c). Accordingly, the March 2003 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Evidence received since the last final denial in March 2003 includes a March 2013 VA examination report, which includes a positive nexus opinion. Therefore, the Board finds that the evidence added to the record since the last final denial constitutes new and material evidence, and that the criteria under 38 C.F.R. § 3.156(a) have been satisfied; therefore, the claim for service connection for an acquired psychiatric disability is reopened. Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD and schizophrenia. He contends that his psychiatric disability is related to service. The record reflects that the Veteran has a current acquired psychiatric disability of PTSD and schizophrenia. For the reasons discussed below, the Board finds that the evidence is in relative equipoise that the current acquired psychiatric disability other than PTSD, to include schizophrenia, was incurred service. The March 2013 VA examination report includes an opinion that Veteran's schizophrenia is at least as likely as not incurred in or caused by service. The VA examiner provided the following rationale: Based on a review of the available medical record, it appears that there is strong support that the [Veteran]'s symptoms onset around the age of 20 (Psychiatric Nursing Assessment on 3/17/2004 . . . showed the [Veteran] was diagnosed with schizophrenia, and was noted to have "1st psychotic episode age 20"). This is consistent with research and DSM-IV data for the onset of chronic, serious mental illness. The claimant has a recognized treatment with neuroleptic medication for the abatement of psychotic symptoms, per the medical record (Medication Record 5/12/2000-12/18/2002 Fulton Country Dept. of MHMRSA shows treatment with Haldol, Cogentin, and Zyprexa). The [Veteran] is currently being maintained on Zyprexa that has produced a long period of stability in symptoms, as he reported he has not been hospitalized since 2000. Furthermore, C&P examination on 12/20/1990 . . . showed the [Veteran] was diagnosed with schizophrenia. Given the date of onset of symptoms and the first reported contact with mental health being contemporary to his Army Reserve duty, the condition of schizophrenia was at least as likely as not incurred during military service. The Board finds that the March 2013 VA opinion is highly probative with respect to service connection for an acquired psychiatric disability, to include schizophrenia, and is adequately based on objective findings as shown by the record, and accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran's history, and provided a rationale for the opinion given. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the March 2013 VA opinion report provides competent, credible, and probative evidence which shows that the current acquired psychiatric disability, to schizophrenia, was incurred in service. There is no contrary medical evidence or medical opinion of record. For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability other than PTSD, to include schizophrenia, is warranted as directly incurred in service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d). The record reflects that the Veteran's claim for service connection for an acquired psychiatric disability includes PTSD. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (recently amended as the DSM-V)); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The record shows that the Veteran has been diagnosed with PTSD. See June 2011 Disability Benefits Questionnaire. However, the record contains an April 2011 formal finding of lack of information required to corroborate stressors with a claim for service connection for PTSD. Therefore, a credible in-service stressor sufficient to cause PTSD has not been established, and the March 2013 VA opinion did not relate the Veteran's PTSD to service. Accordingly, the grant herein of service connection for an acquired psychiatric disability does not include PTSD; however, this is not prejudicial to the Veteran because the Board has granted herein service connection for an acquired psychiatric disability, to include schizophrenia, and all his psychiatric symptoms are already rated pursuant to the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130 (2017) (providing that all psychiatric symptoms and social and occupational impairment are to be rated together under the General Rating Formula for Mental Disorders). Therefore, a grant of service connection for PTSD would not result in additional compensation for the Veteran because it would not result in a separate rating for PTSD symptoms and impairment alone because all service-connected psychiatric symptoms must be rated together under one criteria, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. See 38 C.F.R. § 4.14 (2017) (pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability). ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. Service connection for an acquired psychiatric disability other than PTSD, to include schizophrenia, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs