Citation Nr: 21016228 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 16-36 119 DATE: March 22, 2021 ORDER New and material evidence was received as sufficient to reopen the claim for service connection for a psychiatric disorder, to include schizophrenia. Service connection for a psychiatric disorder, to include schizophrenia is denied. REMANDED Service connection for a cervical spine disability is remanded. Service connection for a low back disability is remanded. Service connection for bilateral pes planus is remanded. Service connection for hypertension is remanded. FINDINGS OF FACT 1. An April 2003 rating decision that denied service connection for a psychiatric disorder was not appealed and the decision became final. 2. New and material evidence has been received since the April 2003 rating decision to substantiate the claim of entitlement to service connection for a psychiatric disorder. The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. The preponderance of the evidence is against finding that a psychiatric disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The April 2003 rating decision that denied the Veteran’s claim of entitlement to service connection for a psychiatric disorder is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria to reopen the service connection claim for a psychiatric disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a psychiatric disorder, to include schizophrenia have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had two months and nine days of active service from February 1979 to April 1979. In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Board previously considered this appeal in June 2019, and remanded these issues for additional development. After the development was completed, the case returned to the Board for further appellate review. The Board has thoroughly reviewed all the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence in the record; not every item of evidence has the same probative value. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail. See Gilbert, 1 Vet. App. at 53. The Court has also stated, “It is clear that to deny a claim on its merits, the evidence must preponderate against the claim.” Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. 1. New and material evidence was received as sufficient to reopen the claim for service connection for a psychiatric disorder, to include schizophrenia. The Veteran originally filed a claim for entitlement to service connection for a psychiatric disorder in January 1991. The RO initially denied the claim in a February 1991 rating decision on the grounds that there was no evidence that the Veteran was diagnosed with a psychiatric disorder until 1980. The Veteran requested to reopen his claim in February 1991 and identified relevant private treatment records, but a March 1991 rating decision continued to deny the claim on the grounds that the schizophrenia was not shown in service and the diagnosis occurred more than one year after service. The Veteran did not appeal this decision within one year of the last final rating decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. The Veteran applied to reopen his claim again in September 1992. February 1993 and February 1994 rating decisions denied reopening the claim. An April 2003 Board decision and January 2005 rating decision also denied reopening the claim. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary 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 is defined as 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. 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. As an initial matter, the Board notes that additional service personnel records were associated with the claims file in 2019. 38 C.F.R. § 3.156 (c)(1) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Although service personnel records were obtained, review of the records reflects they were duplicative of records already associated with the file in 2000. As such, 38 C.F.R. § 3.156 (c) does not apply. The Veteran most recently applied to reopen the claim in July 2013. He was subsequently advised in July 2013 of the evidence and information necessary to reopen the claim and was notified of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought. See Kent v. Nicholson, 20 Vet. App. 1 (2006). A September 2013 rating decision denied reopening the Veteran’s claim because the evidence received continued to show no evidence of treatment, complaints, or diagnosis for a psychiatric disability during service. Furthermore, the Veteran did not qualify for presumptive service connection because he did not have active, continuous service for 90 days or more. Since the January 2005 rating decision, a document and testimony has been associated with the claims file that discusses a possible nexus to service. The Veteran provided testimony at a March 2019 hearing where he discussed that he first noticed symptoms in service. A January 2020 VA examination contains a nexus opinion that considered whether the Veteran had schizophrenia during service. As this document represent evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits. 2. Service connection for a psychiatric disorder, to include schizophrenia. The Veteran contends that his schizophrenia diagnosis is related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of schizophrenia as evidenced by the January 2020 VA examination. Schizophrenia is considered a form of psychosis, which is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, while the Veteran's schizophrenia qualifies as a "psychosis" for purposes of presumptive service connection, presumptive service connection is not applicable where, as here, the Veteran did not have 90 days or more of active military service. See 38 C.F.R. §§ 3.307(a)(1), 3.384. Additionally, the Board acknowledges that record indicates that the Veteran might have had a pre-existing psychiatric disorder, to include a personality disorder, prior to service. However, the Veteran underwent an examination for entry into active duty in February 1979, and he was clinically evaluated as normal in all aspects with no defects or diagnoses noted other than bilateral flat feet. As there were no psychiatric conditions noted on his February 1979 entrance examination report, it is presumed that the Veteran was in sound condition on entrance into service. See 38 C.F.R. § 3.304(b). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of schizophrenia, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. While the Veteran believes his schizophrenia is related to service, to include hearing voices after being exposed to a gas chamber, the Board reiterates that the preponderance of the evidence weighs against findings that treatment, complaints, or a diagnosis for a psychiatric disability, to include schizophrenia occurred during service. Further, while the Veteran asserts that the reported symptoms during service were manifestations of schizophrenia, and also that his gas chamber exposure caused schizophrenia, he is not competent to determine that these symptoms were manifestations of a psychiatric disability or that the gas chamber exposure caused schizophrenia as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The January 2020 VA examiner opined that the Veteran’s schizophrenia is less likely as not related to an in-service injury, event, or disease, including the gas chamber exposure. The rationale was the evidence of record first showed a diagnosis for schizophrenia in the summer of 1980, which was over a year after discharge from service. Furthermore, the VA examiner found it was mere speculation to determine whether the etiology of the Veteran’s diagnosis was related to his familial history or age at the time of his diagnosis in 1980. Additionally, the VA examiner explained that gas chamber exposure was no more than the smallest of percentages in terms of possible causes for the Veteran’s schizophrenia. The rationale was that absent any documented treatment after the Veteran’s gas chamber incident, it is reasonable to assume the common symptoms associated with the Veteran’s exposure to noxious/toxic gases were mild and short lived. While the Veteran believes his psychiatric disability is related to an in-service injury, event, or disease, including gas chamber exposure, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. After a full review of the record, the weight of the evidence demonstrates that a psychiatric disability, to include schizophrenia did not have its onset in service, and is not otherwise related to service for the reasons discussed above. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a cervical spine disability is remanded. 2. Service connection for a low back disability is remanded. 3. Service connection for bilateral pes planus is remanded. 4. Service connection for hypertension is remanded. The Board notes that the January 2020 VA examinations contain inadequate medical opinions regarding the issues of service connection for a cervical spine disability, low back disability, bilateral pes planus, and hypertension to the extent the examiner did provide adequate rationale to support each conclusion or discuss the contrary evidence associated with the record that supports the Veteran’s claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (a medical opinion must “support its conclusion with an analysis that the Board can consider and weigh against contrary opinions[;]” see also Nieves–Rodriguez, 22 Vet. App. 295, 304 (2008) (concluding that a medical opinion is not entitled to any weight if it does not contain a rationale that adequately connects data and conclusions). In addition, the VA examiner relied on the absence of treatment during service to provide a negative nexus. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination is inadequate where the examiner did not comment on Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide a negative opinion). Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disabilities. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the above, the Board finds that new VA examination opinions must be obtained. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s cervical spine disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the cervical spine disability at least as likely as not related to service, including the Veteran’s alleged fall? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability began during active service, or was noted during service with continuity of the same symptomatology since service? 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s low back disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the low back disability at least as likely as not related to service, including the Veteran’s alleged fall? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability began during active service, or was noted during service with continuity of the same symptomatology since service? 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s hypertension. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the hypertension at least as likely as not related to service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. Is it at least as likely as not that the disability began during active service or was noted during service with continuity of the same symptomatology since service? 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s bilateral pes planus. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Did the Veteran’s bilateral pes planus, which existed prior to service, at least as likely as not increase in severity during service, to include documented treatment during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the February 1979 treatment record noting flat feet. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.