Citation Nr: 1821909	
Decision Date: 04/12/18    Archive Date: 04/25/18

DOCKET NO.  09-23 215A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia.

2.  Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Buck Denton, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1974 to March 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In a February 2018 statement, the Veteran withdrew his request for a hearing.


FINDINGS OF FACTS

1.  In a March 1977 decision, the RO denied entitlement to service connection for a nervous condition, diagnosed as paranoid schizophrenia.  The Veteran did not appeal.

2.  The evidence added to the record since the March 1977 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a psychiatric disability.

3.  The evidence is at least evenly balanced as to whether the Veteran's paranoid schizophrenia is related to his active military service.


CONCLUSIONS OF LAW

1.  The March 1977 rating decision that denied entitlement to service connection for paranoid schizophrenia is final.  38 U.S.C. § 7105(c) (2012); 38 U.S.C. § 20.1103 (2017).

2.  New and material evidence has been received to reopen a claim of entitlement to service connection for schizophrenia.  38 U.S.C. § 5108 (2012); 38 C.F.R.
§ 3.156(a) (2017).

3.  With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for March 1977 decision, the RO denied entitlement to service connection for paranoid schizophrenia have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

The Veteran petitions to reopen his previously denied service connection claim for schizophrenia.  For the following reasons, the Board finds that reopening is warranted.

Service connection for schizophrenia was previously denied in a March 1977 rating decision because although the Veteran was diagnosed with a passive aggressive personality in service, he was not seen, treated, or observed for psychoneurosis or psychosis in service or within one year of separation.  He had been diagnosed as having paranoid schizophrenia in November 1976, approximately 20 months after his separation from service.  The Veteran was notified of the March 1977 rating decision and of his appellate rights by letter dated April 1, 1977.  The Veteran did not submit a notice of disagreement or initiate an appeal.  See 38 C.F.R. §§ 20.200, 20.201, 20.302 (2017) (setting forth requirements and timeframe for perfecting an appeal).  Moreover, new and material evidence was not of record within one year of this decision.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final); see also 38 C.F.R. § 3.400(q) (2017) (providing that, as to new and material evidence received within appeal period, "effective date will be as though the former decision had not been rendered").  Accordingly, the March 1977 rating decision is final.  See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103.

In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial.  See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (holding that § 5108 requires a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened).

VA regulation defines "new and material evidence" as follows.  "New evidence" means evidence not previously submitted to agency decision makers, and "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.  38 C.F.R. § 3.156 (a).  The new evidence must neither be 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.  Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).

In his September 2007 and March 2011 statements, the Veteran detailed the psychological symptomatology he experienced during and after his active service in addition to a sexual assault that occurred during his active service.  At the time of the March 1977 rating decision, the Veteran's statements were not of record.  Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim.  See 38 C.F.R. § 3.356(a).  As noted above, the credibility of the evidence is also presumed.  Therefore, the claim is reopened.


II.  Service Connection

Under VA law, service connection may be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2016).  Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2016).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection will also be presumed for certain chronic diseases, including psychosis, if manifested to a compensable degree within one year after discharge from service.  38 U.S.C. § 1112; 38 C.F.R §§ 3.307, 3.309.  See also Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2012) (observing that a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period").  This presumption, however, is rebuttable by probative evidence to the contrary.  38 U.S.C. § 1113; 38 C.F.R. § 3.307(d).

The Veteran contends he has an acquired psychiatric disorder that is related to his active service.  Specifically, he maintains that he developed antisocial behavior, depression, and/or additional related psychological symptomatology as the result of his active service.  See September 2017 Appellant's Brief (discussing the sexual assault the Veteran suffered and the resulting psychological symptomatology stemming from it).

Here, all three elements to establish service connection have been satisfied.  See 38 C.F.R. §§ 3.303(a), Shedden v. Principi, 381 F.3d at 1166-67.  First, as concerning the requisite current diagnosis, the records reflect a current psychiatric pathology, including a diagnosis of paranoid schizophrenia.  See July 2012 Mental Disorders Disability Benefits Questionnaire.

Second, in his September 2007 correspondence, the Veteran stated that, during and immediately following his active duty service, he experienced persistent psychiatric symptoms that included losing touch with reality, delusions, and becoming antisocial.  The Veteran has credibly reported experiencing psychological stress during and after service.  Additionally, his service treatment records (STRs) confirm that he had a mental health evaluation in December of 1974 and was diagnosed with character and behavior disorder with a primary diagnosis of passive aggressive personality.  Thus, in the absence of evidence establishing the Veteran's account as not credible, reasonable doubt will be resolved in his favor, and the occurrence of the claimed events during his service and the resulting psychological stress is established.  See 38 C.F.R. § 3.102.

Finally, as to the third element, that of a nexus between the Veteran's paranoid schizophrenia and the in-service stressor, the Veteran has asserted in statements throughout the pendency of the claim that he experienced psychiatric symptoms after a sexual assault during active service.  See, e.g., March 2011 Statement from the Veteran (noting that after his sexual assault in the military his behavior changed, and he became preoccupied with the event, which manifested into psychiatric symptoms).  In this regard, the Veteran is competent to report experiencing psychiatric symptoms, as such symptoms as social avoidance and mood swings are certainly capable of lay observation.  See Davidson, at 1316 and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology); see also 38 C.F.R. § 3.159 (a)(2).  Furthermore, the Veteran, in his March 2011 statement, noted his sexual assault occurred in October 1974 and that his psychological stress began that day.  His STRs document a January 1975 mental health evaluation, which took place several months after the claimed sexual assault.  Additionally, the Veteran's medical record suggests that he was a different person before and after the military.  For example, an August 1976 psychiatric evaluation noted that the Veteran seemed to have an average past history with no outstanding set-backs or trauma.  His July 2012 VA examination, although it provided a negative opinion, also documented how before the military, the Veteran's history seemed unremarkable in that the Veteran described his childhood as wonderful with lots of friends; he graduated high school, received Bs and Cs, and was active in the French club; and he was employed.  Post-military, the Veteran's records show he was a different person.

Accordingly, in light of the recent medical evidence diagnosing paranoid schizophrenia, given the occurrence of in-service symptoms, considering the medical and lay evidence of a nexus between the Veteran's current psychiatric symptomatology and the claimed in-service event and symptoms, and in light of the absence of any evidence to the contrary, the Board finds that the evidence is at least in equipoise as to whether his current psychiatric disability is related to his active service.  See 38 C.F.R. §§ 3.303 (a); Shedden, 381 F.3d at 1166-67.  Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for paranoid schizophrenia is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for paranoid schizophrenia is granted.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs