Citation Nr: 23015474 Decision Date: 03/15/23 Archive Date: 03/15/23 DOCKET NO. 19-02 934 DATE: March 15, 2023 REMANDED Whether new and material evidence has been submitted to reopen a claim for service connection for a schizoaffective disorder is remanded. REASONS FOR REMAND The Veteran had active service from January 1992 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of a regional office (RO) of the Department of Veterans Affairs (VA), the agency of original jurisdiction. The issue of entitlement to a disability rating in excess of 50 percent for a schizoaffective disorder prior to the May 1, 2010, severance of service connection for schizoaffective disorder was previously before the Board in June 2010. The Board denied entitlement to a disability rating in excess of 50 percent for a schizoaffective disorder prior to the May 1, 2010, severance of service connection for schizoaffective disorder, finding such entitlement to an increased rating for a claim that has been severed is precluded by law. 38 C.F.R. § 3.400(o). 1. Whether new and material evidence has been received to reopen the previously denied claim for a schizoaffective disorder A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raise a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). The question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. Shade v. Shinseki, 24 Vet. App. 110, 118-19, 123 (2010). The Veteran filed a request to reopen in August 2010. A June 2011 rating decision denied the claim finding new and material evidence had not been submitted. The Veteran submitted a new claim for service connection for schizoaffective disorder in November 2012. An April 29, 2014, rating decision denied the claim finding that new and material evidence had not been submitted. The Veteran filed a request to reopen in April 2015. A January 2016 rating decision denied the request to reopen the Veteran's claim for a schizoaffective disorder finding that new and material evidence had not been submitted. The Veteran did not appeal, and the decision became final. The Veteran filed a new claim for service connection for schizoaffective disorder in December 2017. New and material evidence is required to reopen the Veteran's claim. Since the most recent final rating decision in January 2016, ongoing current medical records have been associated with the file. In addition, the Veteran has resubmitted military personnel records and service treatment records that were previously associated with the file. She has also submitted lay statements that she has experienced symptoms of schizoaffective disorder since service. The Veteran was afforded a VA examination in February 2018. The examiner diagnosed schizoaffective disorder. The examiner found that the Veteran continues to meet the criteria for a diagnosis of schizoaffective disorder in which the Veteran is service connected. (This is an incorrect statement as service connection was severed in May 2010.) The RO thereafter requested an additional examination, specifying that an opinion was necessary as to whether the Veteran's schizoaffective disorder was related to active service. However, in June 2018, the examiner declined to provide an opinion, noting that the Veteran is service connected for schizoaffective disorder which is currently evaluated at 0 percent. (This is an incorrect statement as service connection was severed in May 2010.) The RO thereafter did not take additional action to obtain the previously requested opinion, apparently finding that it had previously completed this task in 2008 and/or 2009. While the Board appreciates the RO's explanation for not completing its previously requested examination and opinion from June 2018, the law is clear that once VA takes steps to obtain and examination, it must ensure that the examination it has requested is complete. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, since the previously requested opinion was never obtained, the Board cannot conclude that the development requested was substantially completed, and remand to complete that requested development is therefore necessary. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's schizoaffective disorder. The examiner is reminded that the Veteran is not currently service connected for this disorder as service connection was severed, effective from May 1, 2010. The electronic claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examiner is then requested to state: (a) Whether the Veteran's schizoaffective disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated during service. (b) If you find that the Veteran's schizoaffective disorder did not clearly and unmistakably exist prior to service or, if preexisting, was not clearly and unmistakably not aggravated during service, state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's schizoaffective disorder is related to service. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.