Citation Nr: 21074691 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-21 007 DATE: December 16, 2021 ORDER Entitlement to service connection for schizophrenia is reopened on the basis of new and material evidence; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and schizophrenia, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. The March 2014 rating decision denied service connection for schizophrenia. The Veteran did not timely file a notice of disagreement to the decision and new and material evidence was not received within the one-year appeal period. 2. In October 2015, the VA received new and material evidence from the Veteran that is neither cumulative nor redundant and raises a reasonable probability of substantiating the claims for service connection. CONCLUSIONS OF LAW 1. The March 2014 rating decision that denied the Veteran's claim for entitlement to service connection for schizophrenia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for schizophrenia. 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 June 1966 to June 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2021 hearing. The Veteran waived RO review of new evidence. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. In the March 2014 rating decision, the Veteran was denied service connection for schizophrenia. The Veteran neither appealed the decision nor submitted new and material evidence within the one-year appeal period. It thus became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In October 2015, the Veteran filed a claim for service connection for depression, anxiety, and schizophrenia. Along with the claim for service connection, the Veteran submitted a VA Form 21-0960P-2 Mental Disorders Disability Benefits Questionnaire (DBQ) from his doctor, Dr. I.F. Additionally, the Veteran testified in May 2021 that when he was in Vietnam, he was exposed to mines and mortar attacks, which made subsequent life difficult. In the April 2016 rating decision, the RO reopened the Veteran's previously denied claim for service connection for schizophrenia and subsequently denied the claim. In the same rating decision, the Veteran was denied service connection for depression and anxiety. As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received, the Board also finds the evidence to be new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and schizophrenia, to include as secondary to service-connected disabilities Here, the Veteran filed his claim seeking service connection for (1) schizophrenia, and (2) anxiety and depression. However, the Board therefore finds that the Veteran's claim is more accurately characterized as one for acquired psychiatric disability, to include anxiety, depression, and schizophrenia. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Veteran was last afforded a VA mental health examination in March 2017. The examiner noted that the Veteran only had one mental disorder, schizophrenia. However, in the 2015 DBQ submitted by the Veteran, his treating physician, Dr. I.F, noted the Veteran as having a diagnosis of unspecified anxiety/depressive disorder. The March 2017 VA Request for Physical Examination listed the 2015 DBQ submitted by the Veteran. However, the March 2017 VA examiner did not address the DBQ and the diagnosis of unspecified anxiety/depression. Additionally, in December 2021, VA completed document translation from Spanish to English. These translated documents were not available to the March 2017 examiner. The Board also notes that in the October 2014 rating decision, the Veteran was denied service connection for posttraumatic stress disorder (PTSD). In the rating decision, the RO conceded a stressful event in service or fear of hostile military or terrorist activity. The Board finds the March 2017 examination and opinion inadequate, as the examiner failed to consider the 2015 DBQ by Dr. I.F. and the conceded stressful event in service or fear of hostile military or terrorist activity. On remand, a new VA mental health examination must be secured to consider all evidence of record. The matter is REMANDED for the following action: After completing any additional development deemed necessary, schedule the Veteran for an appropriate VA examination, with a psychiatrist or psychologist, to address the nature and etiology of his claimed acquired psychiatric conditions. The entire claims file, including medical opinions, lay statements, medical records, the May 2021 hearing transcript, and a copy of this REMAND should be made available to the examiner for review. After record review and examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries: (a) Identify all acquired psychiatric disorders, to include anxiety, depression, and schizophrenia, that are currently diagnosable or which were current during the period on appeal. (b) For each diagnosed condition, determine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's acquired psychiatric condition(s) arose during or as a result of the Veteran's active service. The examiner is reminded the VA has conceded a stressful event in service or fear of hostile military or terrorist activity. (c) For each diagnosed condition, determine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the Veteran's acquired psychiatric condition was caused or aggravated by any of the Veteran's service-connected disabilities. The VA examiner should refer to the July 2017 rating decision codesheet for the most current list of the Veteran's service-connected disabilities Aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice-connected disability. The VA examiner must provide separate findings and rationales relating to causation and aggravation. The basis for each opinion is to be fully explained with a complete discussion of the pertinent lay and medical evidence of record and sound medical principles, including the use of any medical literature or studies, which may reasonably explain the medical analysis in the study of this case. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman 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.