Citation Nr: 21031584 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-06 595 DATE: May 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for paranoid schizophrenia is granted. Basic eligibility for nonservice-connected pension based on the minimum active duty service requirement is granted. REMANDED Entitlement to nonservice-connected pension based on countable income and net worth is remanded. REFERRED The issue of whether there was clear and unmistakable error in the January 2003 rating decision which denied service connection for a nervous condition was raised in a March 2021 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder. 2. The Veteran's paranoid schizophrenia was incurred in service. 3. The Veteran did not serve for twenty-four months of continuous active duty or for the full period for which he was called or ordered to active duty. 4. The Veteran has a compensable service-connected disability and was discharged from service due to a disability adjudged to be service-connected. CONCLUSIONS OF LAW 1. The March 2003 rating decision denying service connection for a nervous condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received after the March 2003 rating decision is new and material to reopen service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105. 3. The criteria for service connection for paranoid schizophrenia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for basic eligibility for VA nonservice-connected pension benefits have been met. 38 U.S.C. §§ 101, 1521; 38 C.F.R. §§ 3.2, 3.3, 3.12A. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2001 to November 2002. The Veteran was scheduled for a February 2021 Board virtual hearing, but withdrew his hearing request in January 2021 correspondence. His representative also requested 90 days from the January 2021 letter to submit additional argument and evidence. The Veteran has had 90 days from the date of the letter to submit additional argument and evidence, and additional argument from his representative was received in March 2021. Because the Board is granting service connection for schizophrenia and is granting basic eligibility for nonservice-connected pension based on service requirements, the Board finds no prejudice in proceeding with a decision at this time. 1. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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, 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. The RO previously denied service connection for a nervous condition in a March 2003 rating decision because evidence of record did not show a clinically diagnosed disability. The Veteran did not appeal March 2003 rating decision or submit relevant evidence within one year of notice of the denial. Therefore, the decision became final. Evidence received since the March 2003 rating decision includes the claim for service connection based on a new diagnosis of paranoid schizophrenia and the record contains medical evidence identifying a current diagnosis of paranoid schizophrenia. The Board finds that the new evidence identifies a currently diagnosed acquired psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156. 2. Entitlement to service connection for paranoid schizophrenia. 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 contends that symptoms of schizophrenia first manifested in service, that he was hospitalized in service due to schizophrenia, and was discharged from service due to his psychiatric disability. The Board concludes that the Veteran has a current disability that schizophrenia, paranoid type, that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Private treatment records, a January 2017 private psychological evaluation, and a July 2016 VA examination show the Veteran has a current diagnosis of paranoid schizophrenia. The Veteran was seen for psychiatric complaints in service just prior to discharge. A June 2002 treatment report shows that he was brought to the emergency room because he was acting "crazy," was not talking to anybody and just staring, and was acting "weird." The Veteran reported depression and suicidal thoughts. Mental health discharge notes show that he was admitted to inpatient care for nine days and was diagnosed with anxiety disorder, not otherwise specified, and personality disorder with schizoid personality traits. A July 2002 Memorandum, Mental Health Evaluation, identified the same psychiatric diagnoses. An Administrative Recommendation, however, indicated that the Veteran did not have a mental health disorder; however, his state of emotional and behavioral dysfunction was of such severity that his ability to perform military duties was significantly impaired, and he met the criteria for administrative separation. On the question whether the current paranoid schizophrenia is related to psychiatric symptoms in service, there are probative opinions in favor of and against the claim. The evidence against the claim includes a July 2016 VA opinion. The VA examiner indicated that the Veteran had a continuous diagnosis of schizophrenia. She opined, however, that his disability was less likely than not incurred or caused by service. In her rational, the examiner indicated that the Veteran began experiencing a combination of visual, auditory, and tactile hallucinations, along with delusional beliefs in service. The Board finds that this statement identifies an onset of psychiatric symptoms in service. The examiner stated, however, that the Veteran denied experiencing any traumatic event that continues to impact him today. Therefore, it appears that the claimed condition was less likely than not incurred in service. The Board finds that the examiner's rational is not convincing as a traumatic event is not required for a diagnosis of schizophrenia, but is instead relevant to a claim for PTSD, and she otherwise indicates the direct onset of relevant psychiatric symptoms in service. The Board finds, therefore, that the negative opinion is not probative. The evidence in favor of the claim includes a January 2017 private psychological evaluation and opinion. The psychologist reviewed the record, examined the Veteran, and discussed relevant evidence of record. The examiner opined that it was clear that the Veteran's paranoid schizophrenia began while he was in the military, that he had a mental collapse and at that time had to be put in the hospital, and he was subsequently discharged due to his mental health condition. The psychologist opined, therefore, that schizophrenia was at least as likely as not incurred in service. The Board finds that the January 2017 private opinion is probative as it includes a complete rational consistent with findings shown in the medical record. Service treatment records show that the Veteran had the onset of psychiatric symptoms in service and the Veteran continues to be treated for the same symptoms in relation to his current diagnosis of paranoid schizophrenia. Moreover, the weight of the evidence shows that paranoid schizophrenia was incurred in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for paranoid schizophrenia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Basic eligibility for nonservice-connected pension based on the minimum active duty service requirement. VA will award nonservice-connected disability pension benefits to a wartime veteran who has the requisite service and who is permanently and totally disabled. Basic entitlement exists if a veteran: (1) served in the active military, naval or air service for ninety days or more during a period of war; (2) is permanently and totally disabled from non-service-connected disability not due to his or her own willful misconduct, or aged 65 or over; and (3) meets the net worth requirements under 38 C.F.R. §§ 3.274, 3.275, and has an annual income that does not exceed the applicable maximum annual pension rate (MAPR). 38 U.S.C. §§ 1502, 1521, 1522; 38 C.F.R. §§ 3.3, 3.23. Further, a person who originally enlists in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (an "early out"), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. The term minimum period of active duty means, for the purposes of this section, the shorter of the following periods: (1) twenty-four months of continuous active duty, non-duty periods that are excludable in determining VA benefit entitlement (e.g., see 38 C.F.R. § 3.15 ) are not considered as a break in service for continuity purposes but are to subtracted from total time served; (2) the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a (a). The minimum period of active duty requirement does not apply (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12A (d). The Veteran did not serve for twenty-four months of continuous active duty or for the full period for which he was called or ordered to active duty. His DD Form 214 shows that he served on active duty from February 2001 to November 2002 for a total of one year and nine months. Personnel records show that he was administratively separated from service, and while one report indicated that he did not have a psychiatric condition or mental disorder, but was discharged due to emotional and/or behavioral dysfunction, he nonetheless was diagnosed with anxiety disorder not otherwise specified, and schizoid personality disorder at discharge. Pursuant to the Board's decision above, service connection has been granted for paranoid schizophrenia, and the Board finds that his discharge from service was due psychiatric disability which the Board has adjudged service connected. The Veteran is also service-connected for right knee strain, and he is in receipt of a 10 percent rating. The Board finds that the Veteran has a compensable service-connected disability and was discharged from service due to a disability adjudged to be service-connected; thus, he falls into exclusions under 38 C.F.R. § 3.12A(d) (2) and (3) to the minimum active-duty service requirement. He has otherwise served on a period of active duty for ninety days or more during a period of war. Thus, the Veteran had qualifying service for basic eligibility to nonservice-connected pension. REASONS FOR REMAND 1. Entitlement to nonservice-connected pension based on countable income and net worth is remanded. The Board has found that the Veteran has met the service requirements for basic eligibility for nonservice-connected pension. The Agency of Original Jurisdiction, however, has not adjudicated the question of whether the Veteran has met the income and net worth requirement for entitlement to pension. The Board notes that the Veteran's claim for pension preceded his claim for service connection for schizophrenia. Thus, even if service-connected disabilities provide for a greater award, entitlement to pension will need to be addressed for the appeal period prior to his service-connected compensation rating. For these reasons, the appeal is remanded for adjudication of the claim. The matter is REMANDED for the following action: 1. Readjudicate the issue of entitlement to nonservice-connected pension based on countable income and net worth. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.