Citation Nr: 21005897 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-06 193 DATE: February 2, 2021 ORDER The petition to reopen a previously denied claim for schizophrenia is granted. Entitlement to service connection for schizophrenia is granted. FINDINGS OF FACT 1. In an unappealed January 2012 rating decision, the RO declined to reopen claim for service connection for schizophrenia. 2. The evidence received since the January 2012 rating decision is new and material and raises a reasonable possibility of substantiating service connection for schizophrenia. 3. Resolving any reasonable doubt in the Veteran’s favor, his schizophrenia, not noted on service entry, had its onset during active duty service. CONCLUSIONS OF LAW 1. The January 2012 rating decision declining to reopen a claim for schizophrenia is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2019). 2. The evidence received since the January 2012 rating decision is new and material, and the criteria to reopen the service connection claim for schizophrenia are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. Resolving any reasonable doubt in the Veteran’s favor, the criteria to establish service connection for schizophrenia are met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2007 to August 2008. In April 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History VA received the Veteran’s original claim for compensation in August 2008 immediately after discharge from active duty. After a February 2009 VA examination, in a March 2009 rating decision, the RO denied the Veteran’s claim finding that the psychiatric disorder preexisted service and while exacerbated during service, was not permanently aggravated. The Veteran failed to timely appeal this decision. In June 2011, the Veteran submitted a petition to reopen his claim, and by a July 2011 rating decision, the RO denied reopening the claim, finding that new and material evidence was not received. After additional evidence was received in September 2011, the RO issued a September 2011 rating decision that continued to deny reopening the claim. Later that month additional evidence was associated with the claims file and in an October 2011 rating decision, the RO reopened and denied the claim. The Veteran did not appeal the decision but identified additional records later that month. The RO construed this as a petition to reopen, obtained the records, and denied reopening the claim in a January 2012 rating decision. The Veteran failed to timely appeal this decision. In August 2016, the Veteran filed an additional petition to reopen, and after additional medical evidence was associated with the claims file, in an August 2016 rating decision, the RO denied reopening the claim. The Veteran timely appealed the decision later that month, a statement of the case was issued in December 2016, the Veteran timely perfected his appeal in February 2017, and this appeal ensued. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, as discussed above, the last final denial of the claim was the January 2012 rating decision that denied reopening the claim. The last denial on the merits was the October 2011 rating decision that found no nexus between the current diagnosis and service and noted that “an increased evaluation cannot be assigned at this time.” Evidence received since the last denial of the claim in 2012 includes additional medical evidence and the Veteran’s competent and credible April 2020 testimony. This evidence suggests that the currently diagnosed schizophrenia has its onset during service and did not preexist service. Therefore, the evidence is new and material and the petition to reopen is granted. Service Connection for Schizophrenia Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that his schizophrenia had its onset during active duty service. He has a current diagnosis of schizophrenia. See e.g., service treatment records and post service treatment records. The Veteran’s entrance examination is negative for an acquired psychiatric disability, let alone a psychosis. The Board recognizes the medical and lay evidence reflecting the Veteran’s reports that he had engaged in misconduct during his youth and received treatment for depressive symptoms. The Board however finds that these lay reports alone do not amount to clear and unmistakable evidence that depression pre-existed his service. Absent clear and unmistakable evidence showing that the Veteran had depression prior to service entrance, he is presumed to have been mentally sound upon his service entrance. Approximately 8 months after induction, in October 2007, the Veteran received in-service psychiatric treatment after acting strange in the barracks. During this visit, the mental health professional diagnosed a psychotic disorder, not otherwise specified. The mental health professional suggested that the Veteran had a long history of paranoia, probably schizophrenia, paranoid type. In a March 2008 extensive evaluation for discharge purposes the mental health professional confirmed a diagnosis of schizoaffective disorder. Significantly, however, the mental health professional noted that this diagnosis was given for the first time and such diagnosis led to the Veteran’s discharge from service. The medical professional further noted that this appeared to have been an exacerbation of previously reported symptoms in adolescence and early 20s of depression only. On review, the Board resolves all doubt in the Veteran’s favor in finding that his schizophrenia had its onset during service. Service connection is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.