Citation Nr: 20049986 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 13-14 156 DATE: July 28, 2020 ORDER New and material evidence having not been submitted, the petition to reopen the claim for service connection for a brain injury, to include secondary to lymph gland infection is denied. New and material evidence having been submitted, the petition to reopen the claim for service connection for an acquired psychiatric disorder, to include undifferentiated type schizophrenia, is granted. Entitlement to service connection for schizoaffective disorder is granted. Entitlement to service connection for a lymph gland infection of the throat is denied. FINDINGS OF FACT 1. An unappealed May 2007 rating decision denied entitlement to service connection for an acquired psychiatric disorder. 2. An unappealed May 2008 rating decision denied entitlement to service connection for a brain injury, to include secondary to a lymph gland infection. 3. Evidence added to the record since the May 2007 rating decision denying entitlement to service connection for an acquired psychiatric disorder is neither cumulative nor redundant of the evidence already of record and raises a reasonable possibility of substantiating the claim. 4. Evidence added to the record since the May 2008 rating decision denying entitlement to service connection for a brain injury, to include secondary to a lymph gland infection is not new and material; the evidence does not raise a reasonable possibility of substantiating the claim. 5. The evidence is at least equipoise as to whether the Veteran’s schizoaffective disorder with psychosis manifested within one year of separation from service. 6. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current lymph gland diagnosis. CONCLUSIONS OF LAW 1. The May 2007 rating decision denying entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § 3.104, 3.160(d), 20.200, 20.302, 20.1103. 2. The May 2008 rating decision denying entitlement to service connection for a brain injury, to include secondary to a lymph gland infection is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § 3.104, 3.160(d), 20.200, 20.302, 20.1103. 3. Evidence received since the May 2007 rating decision is new and material, the claim for service connection an acquired psychiatric disorder, to include schizophrenia is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § 3.104, 3.160(d), 20.200, 20.302, 20.1103. 4. Evidence received since the May 2008 rating decision is not new and material, petition to reopen claim for service connection for a brain injury, to include secondary to lymph gland infection is denied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § § 3.104, 3.160(d), 20.200, 20.302, 20.1103 5. The criteria for service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 6. The criteria for service connection for a lymph gland infection of the throat have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to January 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board reopened the Veteran’s claim for service connection for a lymph gland infection of the throat and remanded the remaining issues in May 2018 to obtain previously identified Social Security Administration (SSA) records. There has been substantial compliance with the May 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. The Veteran’s Petition to Reopen. Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” If VA determines that new and material evidence has been added to the record, the claim is reopened, and VA must evaluate the merits of the Veteran’s claim considering all the evidence both new and old. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). It is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). “New” evidence means evidence not previously submitted to VA decision makers. “Material” evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156 (a). To reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). This is a low threshold that is meant to enable, rather than preclude, reopening. The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim for an acquired psychiatric disorder, to include undifferentiated type schizophrenia was previously denied in a May 2007 rating decision. The RO determined that no new material evidence was received to reopen the Veteran’s claim. New and relevant evidence was not received within one year of the May 2007 decision nor did the Veteran file a notice of disagreement (appeal) with respect to that decision. That decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s claim for service connection for a brain injury, to include secondary to a lymph gland infection was denied in a May 2008 rating decision. The RO stated that the Veteran’s records failed to show a diagnosis of residuals of a brain injury. The RO also stated that service treatment records showed no evidence of an injury, disease, treatment, for a brain injury. New and material evidence was not received within one year of the May 2008 decision nor did the Veteran file a notice of disagreement (appeal) with respect to that decision. That decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed a claim for service connection for brain injury, to include secondary to a lymph gland infection and for an acquired psychiatric disorder, to include undifferentiated schizophrenia in September 2010. Additional evidence includes updated treatment records and Social Security Administration (SSA) records. The evidence shows no evidence of residuals for a brain injury. Additional evidence also includes several redundant statements indicating the Veteran’s lymph gland infection was caused by another service-member violently assaulting him for “years” which led to a brain injury. See e.g., March 2011 Correspondence (Service-member kicked and punched Veteran on the chest for over two years), and June 2012 Correspondence (Veteran was threatened for 850 days). Consequently, this evidence is not material as it does not address the current disability requirement required for direct service connection, nor does it fulfill the requirements for secondary service connection. Villalobos v. Principi, 3 Vet. App. 450 (1992). As such, the petition to reopen the claim for service connection for a brain injury, to include secondary to lymph gland infection of the throat, is denied. Turning to the Veteran’s claim for an acquired psychiatric disorder, to include undifferentiated schizophrenia, SSA records obtained by VA show the Veteran exhibited psychological symptoms since discharge from active service. Specifically, records obtained in January 2019 include evidence of the Veteran’s disregard for his appearance (appearing dirty and in tattered clothing), inability to obtain employment, delusions, hallucinations, illogical thinking, loosened associations, moderately-severely depressed with inappropriate affect, impaired concentration, and low leveled judgment. An August 1981 medical report found that the Veteran suffered from a major mental disorder that has been severely symptomatic since 1973 and without treatment. The medical provider diagnosed the Veteran with chronic psychotic disorder, probably paranoid schizophrenia. This evidence is new because it was not previously submitted to VA decision makers and it is material because it goes to corroborating an element for presumptive service connection for a chronic illness under 38 C.F.R. § 3.309(a) and continuity of symptomatology pursuant to 38 C.F.R. § 3.303. The evidence is sufficient to satisfy the low bar of new and material evidence. The claim for service connection an acquired psychiatric disorder, to include undifferentiated schizophrenia is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder, to include undifferentiated type schizophrenia. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including schizoaffective disorder (psychosis), may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for psychosis). 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, the term “psychosis” only includes brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. For the showing of psychosis in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The Veteran has asserted his psychiatric disability, to include schizophrenia is related to military service. The Veteran currently carries a diagnosis of schizoaffective disorder. See CAPRI December 1, 2018. Although the Veteran’s STRs show no diagnosis, treatment, or complaint for schizophrenia or a psychiatric disorder, a March 18, 1970 treatment note indicates the Veteran spoke very slowly, exhibited dull affect, answered questions with, “I don’t know,” and was able to count back from 100 to 70. The medical provider noted the Veteran has a “mental condition.” A December 1970 medical provider also noted that the Veteran was dull and poorly verbalized his complaints. Hospital discharge notes show the Veteran was hospitalized from July 1, 1974 to July 26, 1974 and August 1, 1974 to August 8, 1974. The Veteran experienced unclear thinking and delusions. On August 8, 1974 the Veteran requested to leave against medical advice and his mother was unhappy with this decision. The hospital staff believed the Veteran suffered from impaired impulse control and delusions. The Veteran filed for disability benefits in August 1974. The application showed that the Veteran suffered from schizophrenia which began in 1969 and prevented him from working in 1973. The application noted that the Veteran was consistently dirty and disregarded his appearance. The Veteran slept in his junked car on his parents’ property and his mother delivered food to him because he refused to eat with the family. A September 1974 follow up note indicates the Veteran appeared dirty and frightened. A November 1974 medical opinion obtained by SSA noted the Veteran was an unemployed meat cutter who lived with his parents and two brothers. The Veteran became concerned about his eyes and his thinking became distorted. He hitchhiked to the Minneapolis VA Hospital and was admitted for three weeks earlier in the year. His symptoms consisted of delusions, memory difficulties, confusing visual images, and bizarre audial and visual changes. During the examination, the Veteran reported symptoms similar to those for which he was admitted to the VA hospital. The examiner appeared very dirty with tattered clothing. His thinking was illogical, and he exhibited somatic delusions, hallucinations, loosened thought association, severe depression, impaired concentration and low-level judgment. The examiner determined the Veteran suffered from schizophrenia, paranoid type, with depression and alcoholism, habitual excess drinking. A February 1976 medical examiner stated the Veteran’s personal appearance did not change much since the 1974 examination. The Veteran appeared dirty and unkempt. His pants were torn and dirty and his shoes were open at the toes. The Veteran took so long to answer any questions that the examiner did not find it worthwhile to administer the Minnesota Multiphasic Personality Inventory (MMPI). The examiner continued the Veteran’s diagnosis of schizophrenia; however, the examiner noted severe deterioration over the course of the past few years. An April 1977 examination report noted the Veteran suffered from untreated chronic psychotic disorder. The examiner stated that the Veteran has been severely symptomatic since 1973 and without treatment deteriorated to a serious degree of interpersonal constriction. The Veteran showed definite signs of affect blunting and thought disorder with constriction of interpersonal capacities. He spent most of his time in an isolated and hermit-like fashion. Currently, the Veteran lives in a nursing/assisted living facility and is prescribed 22 medications including lithium, risperidone, and trazadone. In sum, a review of nearly 45 years of medical records indicates the Veteran’s psychiatric disability to include psychosis, manifested in 1973, within one year of discharge from active service, and continued throughout his lifetime. The Board finds the Veteran’s schizophrenia with psychosis manifested to compensable degree within one year of separation from service thereby establishing a causal connection between his current disability and service. 38 C.F.R. §§ 3.307 (a)(3), 4.130, DC 9201. The aforementioned evidence, including service records indicating the Veteran suffered a mental disability, multiple hospitalizations in 1974, and competent and credible reports of the Veteran’s persistent delusions or hallucinations, grossly inappropriate behaviour, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene.) Resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran’s schizophrenia with psychosis manifested to a compensable degree within one year of separation from service. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a lymph gland infection of the throat. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). (Continued on the next page)   Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The preponderance of the evidence fails to establish a current diagnosis of a lymph gland infection of the throat. A July 2015 VA examiner reviewed the record and considered the Veteran’s lay statements and symptomatology but determined that he did not have a current lymph gland disability. Additionally, VA treatment and SSA records do not indicate a lymph gland infection at any point throughout the period on appeal. In the absence of evidence of a current disability, the claim for a service connection for a lymph gland infection of the throat must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.