Citation Nr: 1822346 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 14-25 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for scoliosis. 2. Whether new and material evidence has been received to reopen a claim for service connection for schizophrenia/schizophreniform disorder. 3. Entitlement to service connection for schizophrenia/schizophreniform disorder. 4. Entitlement to service connection for residuals, mild stroke or TIA. 5. Entitlement to service connection for a heart condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Dean, Counsel INTRODUCTION The Veteran had active service from November 1983 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Jackson, Mississippi and Montgomery, Alabama, respectively. The appeal was before the Board in August 2016, when it was remanded to schedule a hearing. In July 2017, the Veteran failed to report for her scheduled hearing, as discussed in further detail below. The issue of service connection for schizophrenia/schizophreniform disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An April 1991 rating decision denied service connection for scoliosis based on a finding that the condition is a congenital or developmental disorder, and not a disability for compensation purposes; the Veteran did not perfect an appeal of this decision. 2. Evidence received since the April 1991 rating decision does not tend to show that the Veteran has scoliosis that was aggravated by service, does not relate to the unestablished fact necessary to substantiate the claim of service connection, and does not raise a reasonable possibility of substantiating such claim. 3. Several rating decisions, including the last final September 2010 rating decision, denied service connection for a psychiatric condition on the basis that it existed prior to service and was not aggravated during her service. 4. Evidence received since the September 2010 rating decision includes lay statements from the Veteran suggesting her mental condition worsened during service; this evidence is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claim. 5. Residuals, mild stroke or TIA was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise causally related to such service. 6. A heart condition was not manifested during the Veteran's active duty service or for many years thereafter, nor is it otherwise causally related to such service. CONCLUSIONS OF LAW 1. New and material evidence has not been received, and the claim for service connection for scoliosis may not be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 2. New and material evidence has been received, and the claim of service connection for schizophrenia/schizophreniform disorder may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156, 20.1100 (2017). 3. Service connection for residuals, mild stroke or TIA is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. Service connection for a heart condition is not warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable action taken herein with respect to the petition to reopen the claim for service connection for schizophrenia/schizophreniform disorder, no further discussion of the VCAA is required with respect to that claim. With regard to the other claims, VA satisfied the duties to notify and assist in the appeal, and neither the Veteran nor her representative has asserted any error as to the duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Board notes the Veteran was not afforded VA examinations for her service connection claims. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to the Veteran's claim for service connection, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d), 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the United States Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board concludes that examinations and opinions with respect to the Veteran's claims of service connection for stroke residuals and a heart condition are not needed because the only evidence indicating such disabilities are related to service are general, conclusory lay statements. As the evidence does not establish that relevant events, injuries, or diseases occurred in service, examinations are not warranted. See McLendon, supra. As to scoliosis, as discussed in greater detail below, as the claim is not reopened, there is not a duty to obtain an examination (although the new evidence in combination with considering the need for a new examination is considered when determining whether there is new and material evidence. Shade v. Shinseki, 24 Vet. App. 110 (2010)). The Board also acknowledges that it remanded this claim in August 2016 to afford the Veteran a Board hearing. The notification letters were sent to the Veteran and her previous representative, a private attorney, rather than her current representative. However, her current representative submitted a brief in February 2018, indicating a recent review of the claims file and awareness that the Veteran had been scheduled for a hearing. Therefore, the Board finds that there is no additional duty to reschedule the hearing. New and Material Evidence Claims A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.156 (2017). However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C. § 5108 (2012). 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) (2017). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). I. Scoliosis An April 1991 rating decision denied service connection for scoliosis on the basis that the condition is considered a congenital or developmental disorder, and not a disability for compensation purposes. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. The pertinent evidence of record at the time of the prior decision was her service records and post-service medical records. Since then, additional post-service medical records have been associated with her claims file. The Veteran's claim to reopen the previously-denied claim did not include additional contentions or bases for the claim. The additional evidence does not show a link between a current back disability and service or indicate an increase in the scoliosis during active service. In summary, because the last final April 1991 rating decision found that scoliosis was congenital and not a disability for compensation purposes, for evidence to be new and material, it would have to show that the Veteran's scoliosis was aggravated by her service. No evidence received since the prior final rating decision is competent evidence that the Veteran's scoliosis was aggravated by her service. The Board has carefully and sympathetically considered the additional evidence but does not find a basis for reopening the claim, to include when considering whether there is a basis to reopen when considering the duty to assist. Accordingly, the Board finds that new and material evidence has not been received, and that the claim of service connection for scoliosis may not be reopened. II. Schizophrenia/ Disorder An October 1984 decision administratively denied the Veteran's claim for service connection for a nervous breakdown because she did not submit an original or certified DD Form 214. An April 1991 rating decision denied service connection for a mental condition on the basis that it existed prior to service and was not aggravated during her short period of military service. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. A January 2004 rating decision continued the previous denial on the basis that sufficient evidence had not been submitted to reopen the claim. The Veteran appealed the claim to the Board. In March 2007, the Board found that new and material evidence had not been submitted to reopen the claim. The Veteran appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims. In an August 2008 Order, the Court granted a Joint Motion for Remand (JMR) by both parties, on the basis that the Veteran was provided legally inadequate VCAA notice. In June 2010, the Board remanded the matter because the Veteran's then-attorney raised the issue of clear and unmistakable error (CUE) in the prior final April 1991 rating decision. In a September 2010 rating decision, the RO found that the decision to deny service connection for schizophreniform disorder with maturation to schizophrenia was not clearly and unmistakably erroneous. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. Since the last final September 2010 rating decision, additional post-service medical records have been associated with her claims file. As well, in her September 2013 notice of disagreement, she stated that prior to enlisting in the Army, she had been accepted into West Point. She noted she was hospitalized for half of her military service and was discharged under strong medications. The Board reiterates that evidence is new and material if it would, in conjunction with other evidence of record, trigger VA's duty to provide an examination. The Board finds that the Veteran's statements, if true, trigger VA's duty to provide a new medical opinion regarding her contention of worsening during service; therefore, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for schizophrenia/schizophreniform disorder is reopened. Service Connection Claims Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C. §31(2012); 38 C.F.R. § 3.303 (2017). In order to establish service connection on a direct basis, the record must contain: (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 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends her residuals of a mild stroke and heart condition are related to service. Her service treatment records are silent for complaints related to a stroke or her heart. The first evidence of possible stroke residuals is June 2010 medical records showing complaints of a tingling sensation of the left upper extremity that had resolved within several days. While the Veteran later self-reported a history of mild transient ischemic attack, the medical records do not show or confirm a diagnosis of stroke or stroke residuals. An August 1989 medical record showed elevated blood pressure during a hospitalization for an acute exacerbation of schizophrenic disorder. The next notation of blood pressure problems was in March 2008, when elevated blood pressure was noted. The Veteran reported her general practitioner was aware and that her blood pressure fluctuated, but that her general practitioner recommended medication. The Board finds that the evidence of record does not support findings of service connection for residuals of a mild stroke or a heart condition. The Board has considered the Veteran's reports attributing her stroke residuals and heart condition to service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of stroke residuals and a heart condition. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). In the absence of competent evidence that the Veteran has stroke residuals and a heart condition that are etiologically related to active service, service connection is not warranted and the claims must be denied. As discussed above, without an in-service disease or injury, the Board is not obligated to provide the Veteran with examinations or obtain any further opinions on the matter. She has not submitted competent medical statements indicating she has stroke residuals or a heart condition related to her military service. To the extent that the Veteran may allege a causal relationship, the Board notes that such statements are beyond her competence. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d 1372. The preponderance of the evidence is against the claims of service connection for residuals, mild stroke or TIA and a heart condition, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). ORDER The petition to reopen a claim for service connection for scoliosis is denied. New and material evidence having been received, the claim of entitlement to service connection for schizophrenia/schizophreniform disorder is reopened; the appeal is granted to this extent only.. Entitlement to service connection for residuals, mild stroke or TIA is denied. Entitlement to service connection for a heart condition is denied. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the remaining issue on appeal. The Veteran stated in her notice of disagreement that her pre-existing mental health condition worsened during service; therefore, a new opinion should be provided regarding this contention. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA treatment the Veteran has received for the schizophrenia/schizophreniform disorder on appeal. 2. After completing directive (1), the AOJ should schedule the Veteran for a VA mental disorders examination by a qualified medical professional to determine the nature, extent and etiology of her schizophrenia/schizophreniform disorder. The examiner should provide responses to the following: (a) Is it absolutely clear (obvious or manifest or undebatable) that schizophrenia/schizophreniform disorder existed prior to entrance to active duty in November 1983. Consider and discuss as necessary the Veteran's service treatment records indicating hospitalization. (c) If it is absolutely clear that schizophrenia/schizophreniform disorder existed prior to service, is it absolutely clear that the disability was not increased beyond natural progression of the disability? Consider and discuss as necessary the Veteran's statements in her September 2013 notice of disagreement. (d) If it is not absolutely clear that schizophrenia/schizophreniform disorder existed prior to service, is it at least as likely as not (a 50% or higher degree of probability) related to the Veteran's service? Detailed reasons for all opinions should be provided. 3. The AOJ should then review the obtained VA examination report to ensure that the opinions contained therein are responsive to the questions posed. 4. The AOJ should then review the record and readjudicate the claim on appeal. If the issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and her representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs