Citation Nr: 18124706 Decision Date: 08/07/18 Archive Date: 08/07/18 DOCKET NO. 15-30 503 DATE: August 7, 2018 ISSUE Whether new and material evidence has been received to reopen the claim of service connection for a neuropsychiatric disorder, also claimed as schizoaffective disorder and nervous condition. ORDER New and material evidence sufficient to reopen the claim of service connection for neuropsychiatric disorder, also claimed as schizoaffective disorder and nervous condition has not been received, and the application to reopen the claim is denied. FINDINGS OF FACT 1. A July 1981 rating decision originally denied service connection for a nervous condition (now claimed as schizoaffective disorder). 2. The Veteran did not file a Notice of Disagreement or submit new and material evidence within one year. The July 1981 rating decision became final. 3. The Veteran’s claim for service connection was reopened and denied in a subsequent February 1986 rating decision. The Veteran timely appealed to the Board. 4. In December 1986, the Board upheld the prior denial of service connection for an acquired psychiatric disorder because a personality disorder was present in service, and there was no evidence of an acquired psychiatric disorder in service or within one year following separation. The decision was not appealed, nor did the Veteran file a motion for reconsideration of the Board’s decision. 5. Additional new evidence received since the unappealed December 1986 Board decision is cumulative of evidence previously of record at the time of the prior final denial. It does not cure the critical evidentiary defect that existed at the time of the prior decision and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 1986 Board decision denying service connection for an acquired psychiatric disorder (now claimed as schizophrenia) is now final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The evidence received since the December 1986 Board decision is not new and material, and the claim is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to July 1980. This matter is before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that in the Veteran’s VA Form 9, received by VA in August 2015, the Veteran describes a history of his psychiatric treatment and his theory of entitlement. He references schizoaffective disorder and post-traumatic stress disorder (PTSD). The rating decision on appeal also denied service connection for PTSD. However, the Veteran never submitted a Notice of Disagreement (NOD) for this issue. The NOD explicitly delineates his disagreement with the schizoaffective disorder denial, and the appeal has continued in this form, which is consistent with the characterization of the issue in the April 2018 Informal Hearing Presentation (IHP). The Board also notes that PTSD has been adjudicated in a separate, more recent appeals stream. To the extent the Veteran wishes to file a new application to reopen the previous final denial for service connection for PTSD, he is advised that a complete claim on an application form prescribed by VA regulations is required. 38 C.F.R. § 3.155 (2017). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Whether new and material evidence has been received to reopen the claim of service connection for neuropsychiatric disorder, also claimed as schizoaffective disorder and nervous condition A review of the procedural and evidentiary history is instructive. By way of background, a June 1981 rating decision denied service connection for a nervous condition. The implicit denial was for an acquired psychiatric disorder. The Veteran was informed of the decision and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. That decision became final. Then, in October 1985, Veteran submitted a new claim to reopen his previously denied claim for a nervous condition, claimed as mental illness. The Veteran described schizophrenic symptoms that began in April 1980. A February 1986 rating decision reopened the Veteran’s claim and denied service connection for a nervous condition. The RO found: The evidence continues to show personality disorder which would be considered a constitutional and developmental abnormality as was previously denied. The currently diagnosed schizophrenia condition is not shown to have been incurred or aggravated in service or shown within the year presumptive period following discharge from service. The Veteran timely appealed the rating decision. Importantly, this denial was upheld by the Board in a December 1986 decision. The Board denied the reopened claim because a personality disorder was present in service, and there was no evidence of an acquired psychiatric disorder in service or within one year following separation from service. The Board found in part, “The veteran was hospitalized in May and, June 1980, and the diagnoses were schizoid personality disorder associated with passive-aggressive personality traits; and chronic marijuana abuse.” The Board concluded that an acquired psychiatric disorder was not present in service, and schizophrenia was not shown within one year following separation from service. The denial included a full consideration of evidence showing a post-service diagnosis of paranoid schizophrenia. The Veteran did not file a Notice of Disagreement (NOD) or submit new evidence within one year. This decision became final. At the time of the December 1986 Board decision, the record included the claims, private treatment records, and the service records. Ultimately, there was no disability in service or within one year due to disease or injury. Also, it follows that there was no nexus. Decades later in October 2012, the Veteran called the Department of Veterans Affairs Regional Office to reopen a claim of service connection for schizoaffective disorder. The Veteran notified the RO of treatment records at the VA Medical Center, Kansas City, Missouri. In March 2013, VA received a discharge summary dated July 8, 1988 showing a final diagnosis of “schizophrenia CUT” and borderline personality disorder. Also received in March 2013 is a court document dated February 16, 1989. It is a mental examination that was ordered by the court because the Veteran had been charged with burglary. The examination states that the Veteran’s most consistent diagnosis, based on records in the past, is borderline personality disorder. The results of the examination show a current diagnosis of schizoaffective disorder. The document states, in the opinion of the examiners, that the Veteran suffers from mental disease or defect in the form of schizoaffective disorder and had received psychiatric treatment since 1980. Ongoing 2013 treatment records from Truman Medical Center Behavioral Health show diagnoses of schizoaffective disorder and anxiety disorder. VA treatment records are substantially the same, and show impressions of feeling distressed and being unable to calm down. A letter from Dr. P. C. at Truman Medical Center dated July 19, 2013 states that the Veteran had been receiving psychiatric care and medication from Truman Medical Center Behavioral Health since July 31, 2002. The diagnostic impression was schizoaffective disorder and anxiety disorder. In August 2013, the Veteran was sent a development letter. A September 2013 rating decision denied service connection for schizoaffective disorder. Next, in November 2013, the Veteran filed a timely NOD. In June 2015, VA received a set of treatment records from the Social Security Administration (SSA). A letter dated July 6, 1982 shows that the Veteran had been in treatment with Community Mental Health Center-South since May 24, 1982. The diagnostic impression was schizotypal personality disorder controlled with medication and therapy. The Veteran had been hospitalized in December 1983 and a diagnosis of borderline personality with depression was provided. It was noted the Veteran was admitted through the Emergency Room due to taking an overdose of Navane. The Veteran reported taking many drugs while in the Navy. In August 1983, it was noted that the Veteran had a diagnosis of schizophrenia, well controlled on Navane. Medical records also include a history of hospitalization in December 1983 for a drug overdose. The discharge diagnosis was borderline personality disorder with depression. The Veteran was hospitalized again in February 1984 for adjustment disorder with depressed mood. In April 1984 the Veteran was hospitalized for depression, hallucinations, and thoughts of suicide. A psychiatric evaluation on September 26, 1984 shows that there was no evidence of paranoia. The Veteran was alert and oriented to time, place, and person, and recent and remote memory were good. A diagnostic impression of “possible paranoid schizophrenia, in remission on medication” was provided. Upon testing in September 1985, the diagnostic impression was rule-out schizophrenia, rule-out manic-depressive disorder, and rule-out borderline personality disorder. The Veteran perfected his appeal in August 2015. He asserts that even if he carried a diagnosis of a personality disorder, Dr. S. S. stated that in 1983 he suffered from a chronic psychosis of schizoaffective disorder, and not from a personality disorder. He describes his experiences in service, including various orders he was given. He reports that his mental health therapist Dr. R. W. agrees that he suffers from schizoaffective disorder. He reports that he has not sought mental health services with VA because he has not been able to get service connection. The Veteran also reports that he did go to the VA within one year of discharge. He contends that the vast majority of his psychiatric diagnoses have been schizophrenia or schizoaffective disorder. On August 22, 2015, VA received additional medical evidence from Psychiatry Associates of Kansas City P.C. In a letter dated January 18, 1993, Dr. S. S. opined in part, “I can unequivocally state that your primary psychiatric disorder is that of a chronic psychotic process rather than a Personality Disorder.” The letter essentially shows that the Veteran suffers from schizoaffective disorder as of the date it was penned. In November 2015, VA received a notice from Dr. S. S. that the requested private treatment records, including from 1992 to 1994, were destroyed. In the April 2018 Informal Hearing Presentation (IHP), the Veteran and his representative contend in part, “Appellant has submitted new evidence into the record, consisting of Psychiatry Associates of Kansas City P.C., Dr. [S. S’s] letter and his continued allegations that the condition began in service. The new evidence is material, because the Board is not free to ignore the assertions made by an appellant in support of his appeal.” The IHP further avers that the Veteran should be afforded the benefit of the doubt, and is entitled to service connection. All decisions of the Board will be stamped with the date of mailing on the face of the decision. Unless the Chairman of the Board orders reconsideration, and with the exception of matters listed in paragraph (b) of this section, all Board decisions are final on the date stamped on the face of the decision. With the exception of matters listed in paragraph (b) of this section, the decision rendered by the reconsideration Panel in an appeal in which the Chairman has ordered reconsideration is final. 38 C.F.R. § 20.1100. All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation. 38 U.S.C. § 7104 (a). Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7104 (b). If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. 38 U.S.C. § 5108 (a). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. The Board would note that regardless of how the RO (or the Board in a prior denial) ruled on the question of reopening, the Board must re-decide that matter on appeal. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial) and Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence was not previously presented to the Board. See Anglin v. West, 203 F.3d 1343 (2000). At the time of the December 1986 Board decision, the reason for the denial remained because the Veteran’s claimed nervous condition symptomatology was attributable to a personality disorder in service. The diagnosed schizophrenia condition was not shown to have been incurred or aggravated in service or shown within the year presumptive period following discharge from service. In short, there were post service findings that would justify disability. However, there was still no nexus. Although some of the evidence submitted is new, it is not material as it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim. Additional evidence submitted since the December 1986 Board decision is cumulative of the evidence of record at the time of the last prior final denial. For example, although the 1993 letter from Dr. S. S. shows an impression of schizoaffective disorder, and this evidence is considered new, it is not considered material. The evidence does not notate that the Veteran’s condition manifest in service or within a year of discharge. Here, none of the added evidence cures any critical evidentiary defect that existed at the time of the prior denial. In the December 1986 decision, the Veteran lacked a nexus. After a thorough review of the record, the Board concludes that new and material evidence sufficient to reopen the claim has not been submitted. The added evidence, in pertinent part, consists of lay argument, private treatment records, and private medical opinions. They show that although the Veteran has a current disability, there is still no evidence that cures the critical evidentiary defect that existed at the time of the prior decision (nexus). Stated differently, there is nothing in the record suggesting that schizoaffective disorder either had its onset in service or was incurred in service or within the first post-service year. The additional treatment records from SSA are cumulative of other records in the claims file, largely showing the presence of schizoaffective disorder and a personality disorder. Private records already established the presence of a disability, but did not link the Veteran’s post-service schizoaffective disorder to service. Although the Veteran submits several lay statements, the Veteran is not shown to be competent to render an opinion as to identifying the disease entity in service. His theory of entitlement is unsupported and does not provide a basis for the claim. In addition, his lay statements show that his theory of entitlement in part is based upon schizoaffective disorder being identified in 1983 by Dr. S. S., a few years removed from discharge. The Board therefore finds that the evidence is cumulative of evidence already of record at the time of the prior denial, and the claim is not reopened. See 38 C.F.R. § 3.156 (a). D. General Comment The evidence establishes that the Veteran has had a variety of diagnostic labels. In particular, it has been previously established that the Veteran’s personality disorder is not resulting from personal injury suffered or disease contracted in line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. Personality disorders are not diseases or injuries. No matter whether minor or severe, a personality disorder does not warrant service connection because the level of impairment is not due to a disease or injury. To the extent the Veteran contends he has impairment from his time in service, it would not be subject to compensation because it is still not a disease or injury within the law providing for compensation. 38 U.S.C. § 1131. There is also no need to address aggravation because the Veteran does not establish that a particular injury or disease resulting in disability was incurred coincident with service. 38 C.F.R. § 3.303. As such, a consideration of the presumption of soundness is not applicable. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel