Citation Nr: 21069392 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 19-37 608 DATE: November 18, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for schizoaffective disorder is reopened. To this limited extent only, the appeal of that issue is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, however diagnosed, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for fibromyalgia is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for schizoaffective disorder was denied in a May 2015 rating decision that was not appealed; no further evidence relevant to this service connection claim was submitted for a period of one year following the May 2015 decision. 2. Evidence relevant to the claim for schizoaffective disorder was submitted since the May 2015 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for schizoaffective disorder. CONCLUSION OF LAW The criteria for reopening the previously denied claim of entitlement to service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a hearing before the undersigned. The Veteran filed separate claims seeking service connection for posttraumatic stress disorder (PTSD) and schizoaffective disorder. Medical records associated with the claims file show additional psychiatric diagnoses may also be appropriate. Accordingly, the Board has recharacterized the Veteran's claim as one for any acquired psychiatric disorder, however diagnosed, in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). New and material evidence having been presented, the claim of entitlement to service connection for schizoaffective disorder is reopened. To this limited extent only, the appeal of that issue is granted. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, a substantive appeal is filed within 60 days of the issuance of a statement of the case, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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 Veteran filed a claim of service connection for schizoaffective disorder/bipolar in February 2015. In a May 2015 rating decision, the RO denied service connection for schizoaffective disorder, bipolar type, finding that because the Veteran's service medical records were negative for complaints, treatment, or diagnosis of this disorder, it was neither incurred in or cause by the Veteran's military service. The Veteran did not submit a notice of disagreement or any additional evidence relating to this service connection claim within one year of being notified of the May 2015 rating decision. Thus, the May 2015 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claim for service connection for schizoaffective disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the May 2015 rating decision, the Veteran was afforded a VA examination in August 2018 regarding his schizoaffective disorder. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim for service connection for schizoaffective disorder has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a). As stated above, the Board has recharacterized this issue on appeal. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, however diagnosed, is remanded. As an initial matter, a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. Here, no psychiatric conditions were noted on the Veteran's enlistment examination report. Thus, the Board finds that the presumption of soundness attaches in this case. The record contains references to a pre-service head injury and that the Veteran was referred to a psychiatrist prior to service, however, the Board does not find this is sufficient evidence to demonstrate by clear and unmistakable evidence that the Veteran had a pre-existing psychiatric condition at the time of entry into military service, particularly since there is no clinical or diagnostic evidence demonstrating a pre-service diagnosis of a psychiatric disability. Therefore, the Board finds that the presumption of soundness has not been rebutted. Thus, the question is one of direct service connection. Personality disorders are not considered diseases or injury for which service connection may be granted, 38 C.F.R. §§ 3.303 (c), 4.9, 4.127, but service connection may be granted for additional disability superimposed on top of a personality disorder resulting from a disease or injury during service. See VAOPGCPREC 82-90 (July 18, 1990). The Veteran has filed for service connection for multiple psychiatric disabilities and, as noted above, the record contains evidence of several psychiatric diagnoses. In August 2018, a VA mental disorders examination was provided to evaluate the Veteran's claim, however, the Board finds this examination to be inadequate because the examiner has not clearly explained whether any acquired psychiatric disorder, such as PTSD, depression, adjustment disorder, anxiety, and mood disorder, is related to service or superimposed on a personality disorder. Accordingly, remand for a new VA examination is warranted. 2. Entitlement to service connection for GERD is remanded. 3. Entitlement to service connection for OSA is remanded. 4. Entitlement to service connection for fibromyalgia is remanded. The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, based on the Veteran's testimony and the medical evidence of record, the Veteran has been diagnosed with GERD and has established signs and symptoms of OSA and fibromyalgia. The evidence of record also indicates that these may be associated with the Veteran's military service. Thus, remand is warranted for VA examinations. The matters are REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder diagnosed, including, but not limited to, posttraumatic stress disorder (PTSD), depression, adjustment disorder, anxiety, mood disorder, and schizoaffective disorder. The clinician should first be instructed that, because no psychiatric conditions were clinically noted on the Veteran's military entrance examination, the Veteran is presumed sound at entrance into service as to his psychiatric conditions, and the clinician must disregard any evidence suggesting the Veteran had any preexisting psychiatric conditions prior to military service The examiner must first determine whether it is at least as likely as not that the Veteran has a personality disorder. The examiner must then determine if the Veteran has had any acquired psychiatric disability at any point in time during the appeal period. If the Veteran is NOT diagnosed with a personality disorder but IS diagnosed with an acquired psychiatric disability, then the examiner is asked to address the etiology of any acquired psychiatric disability. Specifically, for each acquired psychiatric disability diagnosed, the examiner must opine whether it is at least as likely as not that the disability is related to the Veteran's military service. If PTSD is diagnosed, the examiner must identify the stressor or stressors upon which the diagnosis is made. If the Veteran IS diagnosed with a personality disorder AND is diagnosed with an acquired psychiatric disorder, the examiner must opine whether the acquired psychiatric disorder was at least as likely as not superimposed on the personality disorder during active service and resulted in additional disability. If so, the examiner must describe the resulting additional disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Obtain an opinion regarding the Veteran's claim of service connection for gastroesophageal reflux disease (GERD), obstructive sleep apnea (OSA), and fibromyalgia. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's GERD, OSA, and/or fibromyalgia began in or is otherwise caused by the Veteran's active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.