Citation Nr: 20003215 Decision Date: 01/15/20 Archive Date: 01/14/20 DOCKET NO. 19-16 884 DATE: January 15, 2020 ORDER The appeal to reopen a previously denied claim of service connection for schizoaffective disorder is granted. Service connection for schizoaffective disorder is granted. FINDINGS OF FACT 1. A July 2009 rating decision denied service connection for schizoaffective disorder. The Veteran was notified of the decision in correspondence issued August 2009. The Veteran did not appeal the decision, relevant service department records were not associated with the file, and new and material evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. Evidence received since the July 2009 rating decision is relevant and probative as to the issues of service connection for schizoaffective disorder. 3. Resolving reasonable doubt in the Veteran’s favor, his schizoaffective disorder began during active service. CONCLUSIONS OF LAW 1. The July 2009 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. The evidence received since the July 2009 rating decision, which denied service connection for schizoaffective disorder, is new and material and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). 3. The criteria for service connection for schizoaffective disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from August 1997 to August 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Although the Agency of Original Jurisdiction (AOJ) reopened the Veteran’s claim of service connection for schizoaffective disorder, the question of whether new and material evidence has been received to reopen this claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the issue accordingly.   New and Material Evidence I. Legal Criteria A veteran must file a Notice of Disagreement (NOD) with a determination by the AOJ within one year from the date that the AOJ mails notice of the determination to him or her. Otherwise, that determination will become final. 38 C.F.R. § 20.302. However, if new and material evidence is received prior to the expiration of the appeal period, then the evidence will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raises a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010).   II. Factual Background and Legal Analysis The issues of service connection for schizoaffective disorder was denied in a July 2009 rating decision on the basis that it was neither incurred in nor caused by service and did not develop within one year of separation. The Veteran was notified of the decision in correspondence issued that same month, but he did not appeal the decision. While new evidence was submitted within one year, none of it was material because it did not (by itself or when considered with previous evidence of record at that time) relate to an unestablished fact necessary to substantiate the claim. Therefore, the July 2009 rating decision became final. Since the July 2009 rating decision, multiple lay statements were provided indicating an onset of psychiatric symptoms during service and a private positive nexus opinion was provided. See, e.g., June 2019 Lay Statement by C.D.; June 2019 Private Assessment. This evidence is clearly “new,” because it postdates the July 2009 rating decision, and is also “material,” because it provides necessary information that was missing at the time of the prior denial (that is, evidence that the condition began during service). Consequently, the claim for service connection for schizoaffective disorder may be reopened. Service Connection I. Legal Criteria Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Factual Background and Legal Analysis The Veteran, through his representative, reports that his symptoms for schizoaffective disorder first manifested in service and have continued into the period on appeal. See August 2019 Appellate Brief. The Board concludes that the Veteran has a current disability of schizoaffective disorder that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). VA treatment records show the Veteran has a current diagnosis of schizoaffective disorder. See, e.g., August 2013 Mental Health Treatment Plan Note. Therefore, the primary issue is whether the current disability is related to service. On this question there are probative opinions for and against the claim. The Veteran’s mother, grandmother, and sister each submitted lay statements that the Veteran’s personality was markedly different before and after service and that, after service, he began to drink alcohol very heavily. See June 2019 Lay Statements by C.D., L.D., and A.C. This is consistent with the Veteran’s in-service reprimands and discipline for driving under the influence of alcohol. See December 1999 Army Memorandum. The Board finds these statements probative as to the existence of the Veteran’s symptoms during service and shortly thereafter. In support of the claim, the Veteran submitted a record of a private assessment that include a positive medical opinion that “based on interview and the C-File that [the Veteran] suffers from schizoaffective disorder, which more likely than not began in military service [and] continues uninterrupted to the present.” See June 2019 Private Assessment. Although the examiner did not elaborate on the evidence that led her to this conclusion, when reading the report as a whole (as is required by law), it is clear that it is based on clinical interview with the Veteran, review of the Veteran’s and others’ lay statements, and consideration of the claims file, including pertinent medical evidence. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (VA examination report “must be read as a whole” to determine the examiner’s rationale); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (“[T]here is no reasons or bases requirement imposed on [medical] examiners.”). The Board finds this opinion significantly probative as to the in-service occurrence of the Veteran’s schizoaffective disorder. The evidence against the claim includes an April 2009 VA examination report wherein the examiner opined that the Veteran’s psychiatric disorder “is not caused by or related to military service, has not and was not aggravated by military service.” This VA examiner did not have the opportunity to review the competent and credible lay statements in support of the claim. Accordingly, this opinion cannot be assigned probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise has no probative value). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current schizoaffective disorder arose during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for schizoaffective disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.