Citation Nr: 21015828 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-16 789 DATE: March 18, 2021 ORDER The petition to reopen the claim for an acquired psychiatric condition (previously claimed as schizoaffective disorder), is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition (previously claimed as schizoaffective disorder), is remanded. FINDING OF FACT 1. In an August 2014 rating determination, the RO denied service connection for a schizoaffective disorder (also claimed as psychiatric disorder, anxiety, depression, sleep disturbances and schizophrenia). The Veteran was notified of this decision that same month and did not perfect his appeal within the proscribed time period nor was evidence received which would have allowed the claim to remain open. 2. Evidence received since the August 2014 rating determination raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The August 2014 rating determination denying service connection for a schizoaffective disorder (also claimed as psychiatric disorder, anxiety, depression, sleep disturbances and schizophrenia) is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who the appellant, had active service from July 27, 1976 to July 26, 1980 and from October 13, 1981 to July 27, 1982. By way of history, the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder has been denied multiple times. In an April 1991 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a personality disorder. In a July 1993 rating decision, the RO denied reopening a claim for a nervous condition. In rating decisions dated in July 1999 and July 2002, the RO denied the Veteran’s claim for service connection for schizophrenia. In September 2004 and August 2013 rating decisions, the RO denied reopening a claim for service connection for a personality disorder. In an August 2014 rating decision, the RO denied reopening the Veteran’s claim for service connection for schizoaffective disorder. In December 2015, the Veteran submitted his claim seeking service connection for an acquired psychiatric disorder. In a September 2019 decision, the Board denied service connection for an acquired psychiatric disorder on the basis that new and material evidence had not been received. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims. In an October 2020 Joint Motion for Remand (JMR), the parties requested that the prior decision be vacated and that the matter be remanded for actions consistent with the JMR. In November 2020, the Court ordered that the JMR be granted and that the matter be remanded for actions consistent with that motion. In the October 2020 JMR, the parties noted that the Board found that evidence received since August 2014, consisting of VA treatment records, was new evidence but found that it was not material in substantiating the claim. The parties noted that the Board did not address whether an April 7, 2017 VA mental health note that criticized the August 2014 VA Psych Disability Benefits Questionnaire (DBQ) was material evidence. The parties observed that the April 2017 VA mental health note questioned the rationale of the August 2014 Psych DBQ. They noted that for example, the April 2017 VA mental health note reported that “patient was likely indeed experiencing problems in his 2nd enlistment and discharge from service.” Further, the April 2017 VA mental health note indicated that there was not much evidence that the Veteran had a personality disorder. The parties requested on remand that the Board address whether the April 7, 2017, mental health note was material evidence sufficient to reopen the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low 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 ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id. The RO denied service connection for schizoaffective disorder (also claimed as psychiatric disorder, anxiety, depression, sleep disturbances and schizophrenia) in August 2014. The RO indicated that the claim was reopened. However, the evidence continued to show this condition was not incurred in or aggravated by military service. The RO noted that it had received medical evidence which discussed the symptoms of the Veteran’s medical condition; however, it did not find a link between the Veteran’s medical condition and military service. It indicated that the August 2014 VA examination medical opinion found no link between the diagnosed medical condition and military service. The RO observed that while the service treatment records reflected complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supported the conclusion that a persistent disability was not present in service. It indicated that the medical examiner noted that the current disability was more likely related to post-service substance abuse. The Veteran was notified of the denial that same month and did not perfect his appeal nor was evidence received which would have allowed the claim to remain open during that time frame. Thus, the decision became final. Evidence received since the final August 2014 rating decision consists of VA treatment records that document treatment for an acquired psychiatric disorder. Among those documents is an April 2017 treatment note which addresses the August 2014 VA examination report and inconsistencies in the report. The Veteran’s treating physician noted that the Veteran had had a DBQ compensation evaluation preformed in 2014 which indicated that the Veteran had a current severe mental illness diagnosis but made an interesting final judgment of "The Veteran's current Schizoaffective Disorder is deemed more likely than not related to his significant substance abuse history and not likely related to the Veteran's diagnosis of a personality disorder in service." The physician indicated that data appeared to have been gathered from various VA treatment records and interview, which noted that the Veteran had indicated a pre-military period of depression and suicide attempt at age 15, but no history of any drug use nor alcohol use prior to military, and, in fact, didn't even start until after he completed his first enlistment 1976, making him age 18 to age 22, when he received an honorable discharge in 1980. She stated that it appeared from the DBQ that the Veteran’s SUD problems didn't occur until his 2nd enlistment from 1981-1982, when he also got married, when he began the use of alcohol and marijuana at approximately ages 23-24 y/o. She observed that after only a brief time (<1 yr.), the chart showed when he got “kicked out saying something's wrong with me, I was unsuitable for military service" and DBQ indicated he received and under-honorable discharge for "unsuitability-PD". The Veteran complained about his ETOH use when he was 23-24 and the Veteran only remained married for another year (1981-1983); this was the prime time for development of schizophrenia and bipolar spectrum illnesses. The physician observed that notes dated in 1990 revealed the Veteran showed a document dated from 1985 (within 3 yrs of final discharge from service) that indicated he had disclosed back then that he had been experiencing audio hallucinations since his time in the service; the Veteran also reported in 1985 or 1986 he had his first psychiatric hospitalizations for 3 weeks for mania and "I couldn't think, I got lost, I didn't know who I was" and was given some sort of psychotropic medication. The physician indicated that this was all well before exposure to crack cocaine in 1987, this was all in relationship to no cannabis exposure until >22 yrs old (which in the current literature was not the high-risk exposure time frame). The examiner also indicated that per DBQ, the onset of the alcohol and marijuana use -these "downer" type agents- was also during the first marriage when inability to feel emotional attachment began to occur, all occurring in this 3-4 year span from 1981 to 1985-1986, leading up to the Veteran’s first overtly psychotic break/manic episode which apparently resulted in a three week psychiatric hospitalization by age 26-27. The physician stated that upon review of the 2014 DBQ for Mental Disorders and its evidence, the question being asked in the final paragraph determination did not make sense. There was no scientific evidence to support an assumption that schizophrenia would be due to a personality disorder, so why would they even consider trying to determine if the Veteran’s schizophrenia spectrum illness was "more or less likely than not" related to Veteran’s vague "unsuitability- personality disorder" diagnosis given as the explanation for discharge. The physician agreed that the Veteran was likely experiencing problems that lead to dysfunction in his 2nd enlistment and his discharge from service; however, there was not much evidence to support there was any actual personality disorder in the first place. She noted that it was harder to support a primary personality disorder diagnosis in someone who showed an apparent lack of personality disordered problems in teen years prior to service, as well as an apparent lack of personality disordered problems during the solid 4 year span of his first enlistment period, getting him out of teen years of 18 and into early adulthood at age 22 before becoming "unsuitable". She did note that there did appear to be evidence he could have shown behavioral and/or mood and affect problems related to an Alcohol Use Disorder back then. There did not appear to be evidence to support though that substance use onset that began only during the first evidence of impairment was a cause of the Veteran’s current and chronic psychotic-mood spectrum illness. There was evidence of Veteran having at least one serious depressive episode and suicide attempt age 15, before entering service ~ age 18. The physician stated that, overall, the DBQ review did support timing consistent with the likely prodromal phase of the Veteran’s onset of serious mental illness, beginning at least on/around the time of Veteran’s 2nd enlistment 1981, when there was evidence to support a clear change in behavior and functioning from the prior 4-5 years, going back to when he first joined the military. The timing was also concurrent with the time of life when symptoms and dysfunction began to emerge for schizophrenia and bipolar disorder; all occurring in this 3-4 year span from 1981 to 1985-1986, leading up to the Veteran’s first overtly psychotic break/manic episode, which apparently resulted in a three week psychiatric hospitalization by age 26-27 yrs old. The newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service and provides a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the August 2014 determination is new and material to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The reopened issue will be addressed in the remand section below. REASONS FOR REMAND As the matter has been reopened, the Veteran should be afforded an additional VA psychiatric examination, with the examiner rendering an opinion as to the etiology of any current psychiatric disorder and its relationship, if any, to his period of service. The examiner should address and discuss the August 2014 and April 2017 reports when rendering his/her opinion. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current psychiatric disorder. All indicated tests and studies should be performed and all findings should be reported in detail. The entire record should be made available to the examiner. The examiner is requested to render the following opinions: (a) Did the Veteran's current psychiatric disorder clearly and unmistakably (obvious, manifest, undebatable) pre-exist his period of active service? (b) If it is your opinion that any current psychiatric disorder clearly and unmistakably preexisted service, is there clear and unmistakable evidence that the psychiatric disorder was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? (c) If you conclude that any psychiatric disorder did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability 50 percent of more) that any current psychiatric disorder had its onset in service? When rendering these opinions, the examiner should discuss and address the findings in the August 2014 VA examination report and the April 7, 2017 report by the Veteran’s treating VA physician. Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.