Citation Nr: 22018382 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-59 062 DATE: March 29, 2022 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disability has been received, the application to reopen is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. An unappealed June 2002 rating decision denied service connection for schizophrenia. There was no new and material evidence pertinent to the claim received within one year of the issuance of the decision. The Veteran was notified of the decision and apprised of his appellate rights but did not timely perfect an appeal. 2. The evidence associated with the claims file subsequent to the June 2002 rating decision is not cumulative or redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The June 2002 rating decision denying the claim for service connection for schizophrenia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.1103. 2. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from May 1988 to December 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the issue on appeal was remanded for additional development. This case has been returned to the Board for further appellate consideration. As new and material evidence sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disability has been received, the application to reopen is granted. VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105. An 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, 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 decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence, 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. 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 to the Board. Anglin v. West, 203 F.3d 1343 (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." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a June 2002 rating decision, the Veteran's claim for paranoid schizophrenia was denied. The Agency of Original Jurisdiction (AOJ) based the denial on a lack of medical evidence associating the claimed paranoid schizophrenia to the Veteran's military service. The evidence received since the June 2002 rating decision includes social security administration (SSA) disability records and a private medical opinion that found a relationship between the Veteran's mental health disorder and his military service. Therefore, the Board finds that the additional evidence is new and material. In this regard, it is neither cumulative nor redundant of the evidence previously of record and raises the possibility of substantiating the claim. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran asserts that his paranoid schizophrenia is related to active service. Specifically, the Veteran states that his paranoid schizophrenia was the result of harsh treatment by his drill sergeants during basic training. The Veteran's service treatment records (STRs) reveal a November 1989 note that he was being separated from the service for finances and other irresponsibility, prior to receiving his citation for driving under the influence (DUI). At that time, the Veteran's superior reported that he felt that the Veteran's drinking and his other problems were separate and that he should be discharged. The Veteran's post-service treatment notes from March 1999 to December 2016 reveal several diagnoses to include, psychotic disorder not otherwise specified (NOS), adjustment disorder NOS, schizophrenia, mood disorder NOS, and schizoaffective disorder. During that time, the evidence of record also reveals that the Veteran resided in a state psychiatric facility for an extended period of time and was hospitalized for his mental health on separate occasions. In June 2010, a private psychiatrist, Dr. O.D., assessed that the Veteran's paranoid schizophrenia was clearly stress-related and requested that he be granted service connection for it. Dr. O.D. emphasized the Veteran's report that he did not suffer any mental illness until one week after his basic training took place. Additionally, a private August 2010 statement from a licensed counselor, H.S., and Dr. O.D., documented that the Veteran had positive, predictable, secure, and consistent communications with his parents and siblings. Further, it was assessed that the Veteran's military stressors traumatized him and cumulated to a degree that led to his mental health breakdown. In December 2016, the Veteran was afforded VA examination for mental disorders. At that time, the Veteran reported that he had a great childhood and denied any mental health issues in his family members. He also reported that his first notation of psychosis symptoms was at 22 years old. The VA examiner assessed that the Veteran had a diagnosis of schizoaffective disorder, bipolar type. However, the VA examiner opined that it was less likely than not that the Veteran's schizoaffective disorder, bipolar type, was caused or incurred during his military service. The VA examiner reasoned that there was little evidence to support that the Veteran had a psychotic break, or was diagnosed with schizophrenia, while in service. Further, the VA examiner stated that schizophrenia was not typically thought to be caused or induced by a one-time environmental event and/or stress. The VA examiner also noted that the etiology of schizophrenia was thought to be congenital with strong genetic factors and noted a December 2009 report that the Veteran had a brother with bipolar disorder and an uncle with schizophrenia. The Board finds that the December 2016 VA medical opinion is inadequate for adjudication purposes. In this regard, the VA examiner failed to address the Veteran's statements pertaining to the onset of his symptoms and relied on the absence of an in-service diagnosis as partial support for his opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the VA examiner failed to adequately address the June 2010 and August 2010 statements from Dr. O.D., in regard to a stress-induced mental health breakdown. Accordingly, a new VA examination and opinion is necessary to determine the nature and etiology of any currently present psychiatric disability. See Barr v. Nicholson, 21 Vet. App. 3030 (2007). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the nature and etiology of any acquired psychiatric disability. The examiner should review the claims file and indicate that review in the report. Based on the examination results and a review of the record, the examiner should identify any psychiatric disabilities present during the appeal period. For each psychiatric disability identified, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that the disability was incurred in service or is otherwise etiologically related to the Veteran's active service. In forming the opinion, the examiner must address the June 2010 and August 2010 private medical statements that associate the Veteran's mental health disability with the stress resulting from his military service. A rationale for all opinions expressed must be provided. J. Smith Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.