Citation Nr: 21073262 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-41 705 DATE: December 8, 2021 ORDER New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for schizophrenia is granted. REMANDED Entitlement to service connection for schizophrenia, to include as secondary to herbicide exposure is remanded. Entitlement to service connection for a prostate gland condition, to include as secondary to herbicide exposure is remanded. Entitlement to service connection for kidney cancer and residuals, to include as secondary to herbicide exposure is remanded. FINDINGS OF FACTS 1. An August 2008 rating decision denied reopening the Veteran's previously denied claim of entitlement to service connection for schizophrenia as no new and material evidence was received; the Veteran did not appeal the decision and it became final. 2. New evidence added to the record since the August 2008 rating decision is material to the issue of entitlement to service connection for schizophrenia. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for schizophrenia. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1969 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Despite an RO's decision on whether to reopen a previously denied claim, the Board must make its own determination as to whether the veteran has submitted new and material evidence to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 1. New and material evidence having been received, the claim to reopen the previously denied claim of entitlement to service connection for schizophrenia is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not considered. 38 U.S.C. § 7105(c). 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. 38 C.F.R. § 3.156(a). 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. Id. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). By way of an August 2008 rating decision, the RO denied reopening the Veteran's previously denied claim of entitlement to service connection for schizophrenia because new and material evidence had not been received by VA in support of the claim. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In September 2015, the Veteran submitted a claim to reopen his previously denied claim of entitlement to service connection for schizophrenia. In December 2015, the RO reopened the claim and denied the claim on its merits. The Veteran submitted a timely notice of disagreement (NOD) in January 2016 and a Statement of the Case (SOC) was issued in July 2017. The Veteran subsequently perfected his appeal and thus, the issue is now before the Board. At the time of the August 2008 rating decision, the evidence of record consisted of service treatment records, military personnel records, and post service treatment records. The Board notes that while the Veteran's electronic record reflects the association of service treatment records in September 2015, a Request for Information shows that the records had been previously received by VA in November 1975 following the Veteran's initial claims in October 1975. Further, previous rating decisions reflect consideration of service treatment records that were apart of the record at the time of the decisions. Evidence received since the August 2008 rating decision include pertinent post-service treatment records, lay statements, and an October 2015 VA examination for the central nervous system related to the Veteran's service-connected meningitis. This evidence was not before adjudicators when the Veteran's claim was last denied and is not cumulative or redundant of the evidence of record at the time of the August 2008 rating decision. The evidence also relates to an unestablished fact necessary to substantiate the claim of service connection and raises a reasonable possibility of substantiating that claim. Accordingly, the claim to reopen entitlement to service connection for schizophrenia is granted, to this extent only. REASONS FOR REMAND 1. Entitlement to service connection for schizophrenia, to include as secondary to herbicide exposure is remanded. 2. Entitlement to service connection for a prostate gland condition, to include as secondary to herbicide exposure is remanded. 3. Entitlement to service connection for kidney cancer and residuals, to include as secondary to herbicide exposure is remanded. The Veteran is seeking to establish service connection for schizophrenia, a prostate gland condition, and kidney cancer and residuals. The Veteran contends his conditions are related to combat service and exposure to Agent Orange. A veteran is presumed to have been exposed to herbicides if he served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. 38 U.S.C. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii)-(iv). Review of the Veteran's military personnel records show that he had two years, one month, and 20 days of foreign and/or sea travel and served in Korea from May 1970 to June 1971. However, no development has been undertaken to assist the Veteran in substantiating his claims. While service treatment records make reference to Camp Casey, it is unclear where the Veteran was stationed in Korea or how he was exposed to Agent Orange. Therefore, on remand, the Veteran should be given the opportunity to provide sufficient details about his service in Korea to permit a search for information verifying exposure to herbicides. The Board notes that the December 2015 rating decision indicated that the Veteran was denied service connection for "prostate gland" and "cancer of kidney removal" in part because treatment records did not show currently diagnosed disabilities. However, treatment records from September 2015 reflect the Veteran's complaints of an obstructed prostate with nocturia, frequency, urgency, dribbling, and straining to void at times. Evidence of an enlarged prostate was noted as was a history of benign prostate hypertrophy. The Veteran was diagnosed with an enlarged obstructive prostate in October 2015. A November 2015 treatment record indicated a renal sonogram was conducted for followup of right kidney renal cell carcinoma. As treatment records do indeed reflect conditions of the prostate and kidney, if herbicide exposure is conceded, the Veteran should be afforded VA examinations for his claimed disabilities. The matters are REMANDED for the following action: 1. Send a development letter to the Veteran asking him to provide details for purposes of verifying exposure to Agent Orange in Korea with the Joint Service Records Research Center (JSRRC). In particular, ask the Veteran when, where, and how he was exposed to Agent Orange in Korea. 2. Send a request to the JSRRC for information it can provide to corroborate the Veteran's claimed Agent Orange exposure during his active military service in Korea. If the RO is unable to obtain this information, then a memorandum of the RO's efforts in attempting to obtain the records should be associated with the claims file. 3. If there is sufficient evidence of exposure to herbicides, the Veteran should be scheduled for VA examinations to determine the nature and etiology of his schizophrenia, prostate gland condition, and kidney cancer and residuals. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. An explanation for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.