Citation Nr: 22016126 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-23 973 DATE: March 21, 2022 ORDER As new and material evidence has been received, the petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder, to include psychoses/schizoaffective disorder, bipolar disorder, depression, anxiety, and mixed personality disorder (hereinafter "a psychiatric disorder other than PTSD") is granted, to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. FINDINGS OF FACT 1. An unappealed April 1989 rating decision denied the appellant's claim for service connection for schizoaffective disorder on the basis that service medical records did not show aggravation by active military service; new and material evidence was not received prior to expiration of the appeal period and the decision became final. 2. A February 1995 rating decision denied the appellant's petition to reopen the previously denied claim of service connection for schizoaffective disorder on the basis that new and material evidence was not established; the additional evidence did not establish the preexisting condition was aggravated during service. The appellant filed a notice of disagreement (NOD) with the February 1995 decision and the agency of original jurisdiction (AOJ) issued a Statement of the Case (SOC) in response, however, VA did not receive a substantive appeal (Form 9) and the decision became final. 3. Evidence received since the February 1995 rating decision is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW While the April 1989 and February 1995 rating decisions denying service connection for schizoaffective disorder and denying the petition to reopen service connection for acquired psychiatric disorders other than PTSD, are final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5107, 7105; 38 C.F.R. § 3.104, 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from May 1987 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). To encapsulate the scope of the Veteran's contentions of psychiatric symptoms and functional impairment other than PTSD, the Board elects to recharacterize the appeal as a petition to reopen a previously denied claim for service connection for an acquired psychiatric disability other than PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). A claim for service connection for PTSD was denied in a February 1995 rating decision on the basis of a lack of diagnosis in service, that the stressor provided was inadequate to cause chronic neurosis, and the medical evidence indicated a diagnosis of psychosis with no manifestations attributable to PTSD. At this time, the Veteran has not petitioned to reopen the previously denied claim. The Board also notes that the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised in an August 2021 statement. However, a claim for an increased rating is not on appeal, and therefore, a claim for TDIU is not part-and-parcel to the claim for service connection for an acquired psychiatric disorder currently on appeal. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Nonetheless, the Veteran is welcomed to file a claim for a TDIU, if he so chooses to do so. In his substantive appeal, the Veteran requested a Board video conference hearing. However, this request was subsequently withdrawn in August 2021. Petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder other than PTSD The Board concludes that the April 1989 and February 1995 rating decisions denying the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD are final; however, new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 3.160(d), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the 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 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). 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). At the outset, the Board notes that it appears that additional service personnel and treatment records were associated with the claims file following the last February 1995 rating decision. However, these records were duplicative of other service treatment records already of record. Accordingly, 38 C.F.R. § 3.156 (c) is not for application. The VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156. In this case, an April 1989 rating decision denied the Veteran's claim for service connection for schizoaffective disorder on the basis that service medical records did not show aggravation by active military service. VA did not receive an appeal nor new and material evidence prior to expiration of the appeal period. Therefore, the April 1989 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A February 1995 rating decision denied the Veteran's petition to reopen the previously denied claim of service connection for schizoaffective disorder on the basis that new and material evidence was not established; the additional evidence did not establish the preexisting condition was aggravated during service. The appellant filed a NOD with the February 1995 decision and the AOJ issued a SOC in response, however, VA did not receive a Form 9 and the decision became final. Id. Nonetheless, evidentiary submissions received since the last prior final disallowance includes new and material evidence. Namely, in August 2021, VA received a private medical opinion from a Dr. J.M., who opined the Veteran's PCP-induced psychosis prior to enlistment, now diagnosed as schizoaffective disorder, was permanently aggravated beyond its natural progression by service. It was also his opinion that the Veteran's schizoaffective disorder rendered him permanently and totally disabled and unemployable. Since the additional evidentiary submission demonstrates a nexus that the Veteran has psychiatric disability that may have pre-existed service and may have been aggravated by service, and this evidence was not previously before VA adjudicators at the time of the prior final disallowance, it constitutes new and material evidence. Further, considering the "low threshold" standard for reopening endorsed by the Court in Shade, this additional evidence raises a reasonable possibility of substantiating the underlying claim. Therefore, the Board finds that new and material evidence has been received as to the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. Accordingly, the petition to reopen is granted and readjudication is warranted. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder other than PTSD In this case, the Veteran presents two theories of entitlement in support of his claim for service connection for a psychiatric disorder. First, he seeks service connection for psychosis on a presumptive basis, that it manifested within one year of his discharge from the Marine Corps pursuant to 38 C.F.R. § 3.309(a). He asserts that he was hospitalized at Oakland Naval Hospital in San Francisco for about a month, then discharged. He was then hospitalized for a number of months at Portland VA Hospital and then transferred to the now-closed Dammasch State. While he was ultimately diagnosed with bipolar disorder, he asserts he was delusional for part of the time, and that with his multiple hospitalizations, it indicates his condition was psychosis. Since he had no mental health problems, treatment or diagnoses prior to his enlistment, he asserts the presumption of soundness should also be applied. Alternatively, the Veteran contends that he may have had a pre-existing psychiatric condition that was worsened or was aggravated by military service. He also noted that information has been omitted and most of the evidence provided lists himself as the source of information [for the basis of the denial] even though he does not agree with the statements. See VA 21-4138 Statement in Support of Claim (August 2017) and NOD (July 2018). The Board also notes that the Veteran's wife believes the Veteran's psychiatric condition is due to herbicide agent exposure and requested the appellant be tested for environmental poisoning. See CAPRI (March 2006). To ensure VA has met its duty to assist, the Board concludes that a remand is necessary to obtain an adequate VA medical opinion. Where VA provides an appellant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111; VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Here, the record raises a question as to whether the Veteran's psychiatric disability other than PTSD preexisted service. In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence of a pre-existing disability (prior to service) is established either via medical records dated prior to service and/or also as notated on a veteran's enlistment examination report. In this case, the Veteran's March 1987 enlistment examination did not note a psychiatric disability upon entry to active duty; he was negative for any diagnosis of a psychiatric disability or substance abuse. As such, the presumption of soundness attaches; he is presumed to have been sound on enlistment. Thus, clear and unmistakable evidence it needed to show that the Veteran's psychiatric disability existed before acceptance and enrollment, and was not aggravated by such service. Unfortunately, the medical opinions of record are inadequate for adjudicative purposes. In this regard, the Veteran was afforded a VA examination in February 2019 and a clarifying VA medical opinion was given in March 2019. The examiner opined that it is more likely than not that the Veteran's hospitalization that occurred while he was in the military was a continuation of the psychotic disorder that began prior to the military. The examiner also opined that the Veteran's mental health concerns were not permanently exacerbated by military stressors. However, the examiner did not apply the correct standard. In other words, the examiner did not opine whether the Veteran's psychiatric disability clearly and unmistakable pre-existed service, and clearly and unmistakably was not aggravated in service. Thus, this examination is inadequate for appellate review. Further, as noted above, in support of his claim, the Veteran submitted an August 2021 private medical opinion from a Dr. J.M., who opined that the Veteran's PCP-induced psychosis prior to enlistment, was now diagnosed as schizoaffective disorder, and was permanently aggravated beyond the natural progression of the disease by service. Likewise, again, the examiner did not use the correct standard as to whether the Veteran's disability clearly and unmistakable pre-existed service, and clearly and unmistakably was not aggravated in service. Again, the examiner used the "as likely as not" standard. Thus, this opinion is inadequate and cannot be the basis for the award of service connection. Accordingly, the Board finds that an addendum opinion is necessary to address the etiology of the Veteran's psychiatric disability. Moreover, given the need to remand for additional development, additional VA and private clinical records should be obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from March 2019 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his psychiatric conditions since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's psychiatric conditions (to include schizoaffective disorder, bipolar disorder with anxious features, or anxiety disorder). The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the examiner. The need for another VA examination is left to the discretion of the clinician. The examiner should respond to the following: A) Clearly delineate all currently diagnosed psychiatric disorders. B) With respect to each diagnosed psychiatric disorder, is there clear and unmistakable evidence that the disorder pre-existed service? If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. C) For each currently diagnosed acquired psychiatric disorder that did not preexist service, opine whether it is at least as likely as not that any such disorder is related to the Veteran's active service. A rationale for all opinions expressed should be provided. The examination report should include a discussion of the Veteran's documented history and assertions; the service treatment and personnel records; and the August 2021 private medical opinion. J.N. MOATS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pendleton, N. 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.