Citation Nr: 21062017 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-54 515 DATE: October 6, 2021 ORDER New and material evidence having been received, the claim for reopening entitlement to service connection for schizoaffective disorder is granted. REMANDED Entitlement to service connection for schizoaffective disorder is remanded. FINDINGS OF FACT 1. The July 2001 rating decision denied service connection for schizoaffective disorder; the Veteran was notified of the decision the following month in August 2001, but he did not initiate an appeal and new and material evidence was not received within one year of the notice of that decision. 2. The evidence received since the July 2001 rating decision, when considered by itself or in connection with evidence previously assembled, does relate to unestablished facts necessary to substantiate the claim, and does raise a reasonable possibility of substantiating the claim for service connection for schizoaffective disorder. CONCLUSIONS OF LAW 1. The July 2001 rating decision that denied the Veteran's claim for entitlement to service connection for schizoaffective disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the July 2001 rating decision is new and material, and the criteria to reopen the claim for entitlement to service connection for schizoaffective disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to August 1988. This appeal to the Board of Veterans' Appeals (Board) is from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing. The transcript of the hearing is of record. New and material evidence having been received, the claim for reopening entitlement to service connection for schizoaffective disorder is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a December 1988 rating decision, the RO denied the claim for entitlement to service connection for schizoaffective disorder based on the determination that the Veteran's disability existed prior to service and that it was not aggravated during service. The Veteran did not submit a notice of disagreement with the December 1988 rating decision. No new and material evidence was received by VA within one year of the issuance of the December 1988 rating decision. As such, the December 1988 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). The Veteran filed his claim to reopen in February 1998. In a July 2001 rating decision, the RO denied to reopen the Veteran's claim for service connection for a schizoaffective disorder. He did not appeal that decision, and no new and material evidence was received within one year of notice of that decision. The Veteran again filed a claim to reopen in February 2016. Since the final July 2001 rating decision, the Veteran has testified during the July 2021 Board hearing that his psychiatric disability began to worsen during service. Specifically, he stated that being stationed in Germany as a combat engineer was very stressful on him and then when he was transferred to Oklahoma, he felt very isolated because he did not have the transportation he felt he needed and was unable to communicate with others properly. Thus, this evidence indicates that the Veteran may have had conditions during service that would have aggravated his pre-existing schizoaffective disorder. The Board finds this evidence meets the low threshold for reopening the claim and would trigger VA's duty to provide an examination in adjudicating the claim. Accordingly, this new evidence raises a reasonable possibility of substantiating the claim for entitlement to service connection for a schizoaffective disorder. See Shade, 24 Vet. App. 110. REASONS FOR REMAND Entitlement to service connection for schizoaffective disorder is remanded. The Veteran has alleged entitlement to service connection for schizoaffective disorder. During the July 2021 Board hearing, the Veteran testified that he received treatment at a private health facility for his schizoaffective disorder. Specifically, the Veteran reported that he received treatment at Charter Oak hospital in 2012. However, the record contains no evidence of treatment from this private facility and the record also contains no evidence that attempts were made to obtain these records. VA has a duty to make reasonable efforts to obtain private treatment records. 38 U.S.C. § 5103A(c). Accordingly, this matter must be remanded to obtain outstanding medical treatment records. The Veteran asserts that military service aggravated his schizoaffective disorder beyond its natural progression. The Board notes that the claim was previously denied in December 1988, in which the RO determined that the Veteran's schizoaffective disorder pre-existed service and that it was not aggravated beyond its natural progression. In reaching its decision, the RO relied on a June 1988 service treatment record (STR) and October 1988 VA examination. The June 1988 military physician concluded that the Veteran's schizoaffective disorder was not permanently aggravated by service, and found that "there is compelling evidence to support a finding that the current condition existed prior to service and was not permanently aggravated by such service." However, as the July 1985 enlistment report of medical examination was negative for any indication of a pre-existing psychiatric disability, he is considered sound on entrance. Thus, a remand for a VA opinion is necessary that considers the proper standard. The matter is REMANDED for the following action: 1. Obtain any outstanding service treatment records, to include any psychiatric and/or inpatient records dated in November and December 1985 and from the Ft. Sill Mental Health Clinic dated from February 1988 to his separation from service. 2. After securing any authorization for release of information for any outstanding private treatment records pertaining to his mental health treatment, to include those from UCLA Neuropsychiatric Ward dated in 1982/1983 and from Charter Oak facility dated in 2012. 3. Obtain any relevant outstanding VA treatment records dated from 1988 to the present pertaining to his mental health, to include VA facilities in Brentwood and West Los Angeles. 4. Thereafter, schedule the Veteran for an examination to determine the etiology of his schizoaffective disorder. The examiner is asked to address the following: (a) Is there clear and unmistakable evidence that the Veteran had a pre-existing psychiatric disability prior to his entrance to service? Please explain why or why not. There is no indication of psychiatric disability on his July 1985 enlistment report of medical examination. The examiner should note the October 1988 VA examination report wherein the Veteran reported that at age 19, after using PCP he was hospitalized at UCLA where he stayed for a month and was treated with lithium and Haldol. The Veteran reported that he continued this medication for nine months until he stopped taking it because he was "feeling fine." He then enlisted in the military. (b) If the answer to (a) is "yes," is there clear and unmistakable evidence that his pre-existing psychatiric disability was NOT permanently aggravated during his service? Please explain why or why not. The examiner should note the STRs to include the May 1988 medical board report. The examiner should also note the Veteran's self-report made in the October 1988 VA examination report that he did not have any problems with his nerves after his pre-service hospitalization until February 1988 when he was hospitalized during service. (c) If the answer to (a) is "no," there is not clear and unmistakable evidence that the Veteran had a psychiatric disability prior to service entrance, is it at least as likely as not that his current psychiatric disability is etiologically related to his military service? Please explain why or why not. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hammad Rasul, 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.