Citation Nr: 1811706 Decision Date: 02/22/18 Archive Date: 03/06/18 DOCKET NO. 08-22 602 ) 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 a claim of service connection for schizophrenia. 2. Whether new and material evidence has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty form August 1972 to May 1973. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2008 decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Board remanded these matters. In January 2012 a Travel Board hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. In April 2012, January 2015 and May 2016, these matters were remanded for additional development of the record and/or to ensure due process. In October 2016, a Travel Board hearing was held before the undersigned; a transcript is in the record. In June and November 2017, these matters were again remanded for additional development. FINDINGS OF FACT 1. A September 2005 rating decision declined to reopen a claim of service connection for schizophrenia, essentially on the basis that there was no evidence that such disability may be related to his service. 2. Evidence received since the September 2005 rating decision does not tend to show that schizophrenia is related to the Veteran's service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for schizophrenia; and does not raise a reasonable possibility of substantiating such claim. 3. A September 2005 rating decision declined to reopen a claim of service connection for PTSD, essentially on the basis that such disability was not shown. 4. Evidence received since the September 2005 rating decision does not show that the Veteran has a diagnosis of PTSD related to a stressor in service; does not relate to an unestablished fact necessary to substantiate the claim of service connection for PTSD; and does not raise a reasonable possibility of substantiating such claim. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim of service connection for schizophrenia may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has not been received, and the claim of service connection for PTSD may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by January 2007 and March 2015 letters. These letters provided the Veteran the notice required in claims to reopen; advised him of the basis for the previous denials of service connection for schizophrenia and PTSD, and that new and material evidence was required to reopen the claims; provided the definition of new and material evidence; suggested what type of evidence would be new and material; and identified what was needed to substantiate the underlying service connection claims. A notice deficiency is not alleged. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's service treatment records (STRs), and private, Social Security Administration and VA records have been secured. In a claim to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until the previously denied claim is, in fact, reopened. 38 C.F.R. § 3.159 (c)(4)(iii). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (CAVC) held that 38 C.F.R. 3.103(c)(2) requires that a VLJ who conducts a hearing fulfill two duties: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. At the October 2016 hearing, the undersigned identified the issues, and advised the Veteran of what is needed to substantiate the claims. A hearing deficiency is not alleged. The Board finds that there has been substantial compliance with the November 2017 Board remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The November 2017 remand directed that an attempt to procure the Veteran's Social Security Administration (SSA) records associated with his 1997 claim with that agency. In November 2017, SSA reported that such records had been destroyed. The Board's remand also sought records from Dr. M. A November 2017 VA letter sought information from the Veteran about Dr. M.; the Veteran did not respond. Factual Background, Legal criteria and Analysis The Board has reviewed all of the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran's STRs show that in December 1972, a psychiatric evaluation was normal. A summary of defects notes a mental hygiene clinic evaluation sheet. The Veteran's discharge certificate shows that he had no foreign service. The Veteran submitted claims for service connection in 1976, 1992 and 1996, but did not then mention a psychiatric disability. VA outpatient treatment records show that in January 1998, the Veteran stated that he was still hearing voices. It was noted that his Haldol dosage was increased. The diagnosis was schizophrenia, paranoid type. In August 1999 the Veteran was admitted to a VA hospital for agitation. It was noted that he had been hearing voices for "months." He had also been depressed for months. The hospital report notes that he had been seen since 1997. It was noted that he had no prior hospitalizations. The diagnosis was alcohol abuse. On December 1999 VA psychological evaluation, it was noted that the Veteran had been knocked unconscious 15 years prior, and had been drinking to the point of having blackouts for 32 years. The problem list included schizophrenia and PTSD. In April 2000, T.W. wrote that he knew the Veteran prior to service. He stated that when the Veteran returned from service, there were emotional and personality changes. He said that the Veteran was very nervous and seemed to be paranoid all the time. T.W. also stated that the Veteran complained of nightmares related to his military experiences. On May 2000 VA psychiatric examination, the Veteran stated that during basic training, he was policing a rifle range when shooting began. He said that he had been having hallucinations since that time. He reported that he saw a psychiatrist in service and that he was given medication. He stated that he was offered, and accepted, an early discharge. The diagnosis was chronic paranoid schizophrenia. The examiner stated that the Veteran did not meet the criteria for PTSD. He also said that he had severe symptoms of a psychiatric disability that might well turn out to be service-connected if, in fact, schizophrenia started in service as the Veteran implied. He noted that he had no records to document if this were true. He reiterated that the Veteran did not appear to have PTSD at this time. On a PTSD questionnaire he completed in August 2005, in response to a question as to what happened that caused his stress, the Veteran stated that he saw wounded soldiers returning from Vietnam, and that he was supposed to go there, but his orders were changed. Service connection for schizophrenia and PTSD was originally denied in October 2000 on the basis that the Veteran's claims were not well grounded. A December 2001 rating decision again denied service connection noting that schizophrenia was not incurred in or caused by service and that there was no documentation of treatment within one year of service. Service connection for PTSD was denied on the basis that it was not found on VA examination. He was notified of the rating decision, and did not appeal it. A September 2005 rating decision again denied service connection for schizophrenia and PTSD, noting that new and material evidence had not been received to reopen either claim. He was notified of the rating decision, and did not appeal it; it is the last prior final rating decision regarding these claims. Private medical records show that in August 2007, the Veteran was seen for unrelated complaints. He reported a history of PTSD due to his experiences in Vietnam. He stated that he was in Vietnam for two months, and that when he returned to a base in California, he saw the victims of the war, and that caused him to be depressed. The impressions were PTSD and schizophrenia. In August 2007, the Veteran was seen by a private psychologist. He stated that he had schizophrenia and PTSD from Vietnam. He stated that he was hospitalized by the VA for 28 days in 1997 because he felt like killing himself. The diagnoses were schizoaffective disorder, depressed type, and PTSD. The Veteran's service personnel records were received in 2015 and show that in April 1973, a mental status evaluation found no significant mental illness. The remarks section noted a character and behavior disorder. The records also show that he was discharged for inaptitude. VA medical records received in 2012 show that the Veteran was admitted to the Coatesville VA hospital for the first time in October 1999. He indicated that PTSD was diagnosed one year prior and that schizophrenia was diagnosed three months prior. He stated that he had been under stress since service. He reported that month that he hospitalized once for psychological or emotional problems and once was seen as an outpatient or private patient. VA medical records received in 2013 show that in June 2011, the Veteran stated that he began hearing voices in the early 1970's, and began treatment with Dr. "Morganstern" in Camden around that time. As the period of treatment was nonspecific but potentially within a critical period (and records could potentially be material), the Veteran was asked to provide identifying information so that the records could be sought; he did not respond. When there is a final rating decision denial of a claim of service connection, such claim may not be reopened and allowed on the same factual basis. 38 U.S.C. § 7105. However, if new and material evidence is received with respect to such claim, the claim shall be reopened, and considered de novo. 38 U.S.C. § 5108. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior 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). The requirement for new and material evidence to raise a reasonable possibility of substantiating a claim is a low threshold requirement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). As is noted above, the Veteran did not appeal the September 2005 rating decision and it became final. 38 U.S.C. § 7105. Consequently, new and material evidence to reopen the claims is required before they may be considered de novo. As the prior denial regarding schizophrenia was based on a finding that it was not shown to be related to the Veteran's service, for evidence received since to relate to the unestablished fact necessary to substantiate the claim (and be new and material, warranting reopening of the claim), it would have to tend to show that the Veteran's schizophrenia is etiologically related to his service (or was manifested to a compensable degree one year following his separation from service). For evidence to be new and material with respect to the claim of service connection for PTSD, it would have to tend to show that the Veteran has a diagnosis of PTSD related to a corroborated stressor in service. Addressing the evidence/information added to the record since the September 2005 rating decision in turn, Board finds that the private notations of diagnoses of PTSD (based on experiences in Vietnam) and schizophrenia are not new (such diagnoses were noted in 1999), cannot be found to be material evidence. It was previously established that the Veteran did not serve in Vietnam, and for a diagnosis of PTSD based on Vietnam service to be material evidence, it would have to first be shown that he served in Vietnam (nothing added to the record since 2005 suggests the Veteran served in Vietnam). Regarding schizophrenia, the private the private records do not include opinions relating such diagnosis to service (and do not address the previously unestablished fact necessary to substantiate the claim) The service personnel records received in 2015 noting an April 1973 finding on mental status evaluation of no significant mental illness (the Veteran was discharged for inaptitude) do not tend to show a diagnosis of PTSD based on a stressor event in service or that schizophrenia may be related to service, and are not material evidence. VA treatment records which note an initial psychiatric hospitalization in 1999, and note the Veteran's reports of initial diagnoses of PTSD and schizophrenia decades after service are not new evidence and not material It was previously shown in the record that the Veteran had diagnoses of PTSD and schizophrenia in 1999, and the treatment records do not tend to relate the schizophrenia to the Veteran's service or to show a diagnosis of PTSD based on a corroborated stressor event in service. As the Veteran has not co-operated with VA attempts to identify, and secure records from, the private physician who treated him in Camden New Jersey (when he alleged first hearing voices), his reports of such treatment cannot be considered more than mere allegations with no probative value; they cannot be considered new and material evidence. In summary, no evidence received since the September 2005 (last final) rating decision denying service connection for PTSD and schizophrenia is new evidence that positively bears on the unestablished facts necessary to substantiate these claims (that the Veteran has PTSD based on a corroborated stressor event in service or that his schizophrenia is related to his service) and raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that new and material evidence has not been received, and that the claims of service connection for schizophrenia and PTSD may not be reopened. ORDER The appeals to reopen claims of service connection for schizophrenia and PTSD are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs