Citation Nr: 20021221 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-27 540A DATE: March 25, 2020 ORDER The petition to reopen a claim for entitlement to service connection for a psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT A March 1986 rating decision last denied service connection for an acquired psychiatric disorder; evidence pertaining to the Veteran’s acquired psychiatric disorder since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claim, and is neither cumulative or redundant and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 1986 rating decision which denied the Veteran’s claim for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 2. The evidence received since the last final March 1986 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Air Force from November 1970 to May 1974. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. At the time of the last final denial of the Veteran’s claim for service connection for an acquired psychiatric disorder in March 1986, evidence of record included service records, post-service treatment records, and a VA examination. Evidence associated with the claims file since the previous March 1986 denial includes treatment records, a VA examination and opinion, and statements reflecting continued issues with the Veteran’s psychiatric symptoms. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. In a February 1971 personnel assessment, the Veteran was noted to have “personal problems” that hindered his functioning and that would require professional help to overcome. He was referred to the mental health clinic at Sheppard Air Force Base (AFB) or Eglin AFB. Despite evident high intelligence, he was unable to function satisfactorily as an airman and was discharged early from service. In early October 1985 the Veteran was admitted to a Department of Veterans Affairs (VA) medical center hospital with a diagnosis of undifferentiated schizophrenia, and was released in early November, after an approximate one-month stay. In October 1985, evidently while in the hospital, he sought service connection for a “nervous condition – 1971.” He underwent a VA psychological examination in January 1986. He noted that he had undergone outpatient treatment in 1971. The examiner diagnosed chronic paranoid schizophrenia. However, the examiner stated that he could not comment on whether or not the disorder began in service, because there were no military records available. In a March 1986 rating decision, a VA regional office (RO) denied the claim. The RO noted that the Veteran’s separation discharge examination advanced no diagnosis but noted nervousness in service “for which the Veteran neither sought nor required treatment.” The RO also noted that there was no evidence of treatment within a reasonable period following release from active duty, and no evidence of schizophrenia prior to 1984. In October 2012 the Veteran again sought service connection for “mental health,” and in February 2013 filed a claim for paranoid schizophrenia. In July 2013 the RO denied reopening the claim because new and material evidence had not been submitted. Shortly thereafter, in July 2013 the Veteran filed a notice of disagreement with the denial of reopening, and also filed a claim for PTSD based on military sexual trauma (MST). The Veteran underwent a VA PTSD examination in June 2014. The examiner noted that the Veteran had had “nervousness in service” and “depression or excessive worry,” and had been referred for mental health treatment while in service. He diagnosed schizophrenia, continuous, as well as “other specified trauma and stressor related disorder” in lieu of PTSD, because the disorder was related to childhood trauma as opposed to trauma in service. Concentrating on the PTSD claim, he opined that it was less likely as not that the alleged MST stressor had actually occurred. However, he did not offer an opinion whether the Veteran’s current schizophrenia was connected to the mental health problems he had experienced in service. In a June 2014 rating decision, the RO acknowledged the Veteran’s history of in-service mental health problems, as well as his in-service referral for treatment. However, relying on the examiner’s opinion, the RO denied service connection for PTSD only. The RO did not consider whether the Veteran’s current schizophrenia was connected to the mental health problems he had experienced in service. In August 2015, the RO issued a statement of the case in which it considered the broader issue of the Veteran’s claim to service connection for mental health problems and paranoid schizophrenia. In the statement of the case, the RO denied service connection for paranoid schizophrenia (also claimed as mental health). In doing so, the RO repeated the reasoning of the March 1986 denial. With respect to the October 2012 claim, the RO noted that VA treatment records currently diagnosing paranoid schizophrenia did not show that the disorder was related to military service, and the June 2014 VA examiner did not link the Veteran’s schizophrenia to his military service. The question for the Board is whether it is at least as likely as not that the Veteran’s currently diagnosed schizophrenia is etiologically related to the mental health problems that he experienced while in service. The Board notes that the Veteran has had two VA psychiatric examinations. The January 1986 examiner stated that was unable to opine on the question of service connection, because the Veteran’s military records were unavailable. The June 2014 examiner noted that the Veteran had mental health problems in service for which he was referred for mental health counseling, but the examiner focused only on whether the Veteran’s PTSD symptoms stemmed from an event of military sexual trauma. He opined that nearly all the Veteran’s psychosocial impairment was caused by his non-service-connected schizophrenia, without ever considering whether in fact that schizophrenia stemmed from service. Thus, neither examination provides a basis for determining whether an etiological relationship exists. The Board notes that the March 1986 denial did not rely on the January 1986 examination. Rather, the rating board relied on the service discharge exam as noting nervousness in service for which the Veteran neither sought nor required treatment. Yet, as discussed, the Veteran’s personnel records show that while in service he had mental health problems for which he was referred for professional counseling. At his Board hearing before the undersigned, the Veteran’s representative suggested that the Veteran’s in-service mental health problems represented an early, prodromal stage of his current psychiatric disability. Rating decisions must be based on all the evidence of record. 38 C.F.R. § 4.6 (2018). Thus, remand is required to afford the Veteran a new VA examination. The matters are REMANDED for the following action: 1. Undertake appropriate efforts to obtain any relevant outstanding VA or private medical records and associate them with the claims file. Appropriate efforts must be made to obtain any extant records of the Veteran’s in-service mental health treatment at the mental health clinics at Sheppard AFB or Eglin AFB. 2. Thereafter, afford the Veteran a VA examination to determine the nature and etiology of any currently diagnosed psychiatric disability. The claims file, including this remand, must be provided to the examiner, who must note his or her review of the file. The examiner should obtain a detailed clinical history from the Veteran. All pertinent pathology found on examination must be noted in the report. Any testing deemed necessary must be performed. The examiner must provide an opinion as to whether it is as least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disability arose in, or is etiologically related to, the Veteran’s military service. In answering this question, the examiner must discuss whether it is at least as likely as not that the Veteran’s in-service mental health problems represent a prodromal phase of subsequent psychiatric disease. The examiner must also discuss the Veteran’s service personnel records, which show that while in service he had mental health problems for which he was referred for professional counseling. The examiner is advised that Veterans are generally competent to report history and symptoms, and those reports must be considered in formulating any requested opinion. If the examiner rejects the Veteran’s reports, the examiner must state the reason for doing so. A complete rationale must be given for all opinions and conclusions expressed. If it is not possible to provide a requested opinion without resorting to speculation, the examiner should state why speculation would be required. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist’s opinion or other information needed to provide the requested opinion. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David S. Katz, Associate Counsel 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.