Citation Nr: 0001060 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 96-00 134A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from November 1974 to November 1976. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case or within the remainder of the one-year period following notification of the decision being appealed. The veteran was originally denied service connection for schizophrenia in a January 1980 rating action. The present appeal arises from a June 1995 rating action, with which the veteran expressed disagreement in October 1995. A statement of the case was issued in November 1995, and the appeal was perfected upon the receipt of a substantive appeal in January 1996. Thereafter, supplemental statements of the case were issued in June 1996 and November 1998. In July 1999, the veteran was scheduled to appear at a tele-videoconference hearing to be conducted by a member of the Board. Without explanation, however, the veteran failed to report for the scheduled hearing and, in September 1999, the veteran's representative submitted to the Board a brief in which he set forth pertinent arguments on behalf of the veteran. In September and November 1999, the veteran's representative moved to have the veteran's claim advanced on the Board's docket in order to expedite a decision by the Board on the veteran's claim. These motions, however, were denied in October and December 1999, respectively. FINDINGS OF FACT 1. The veteran was originally denied service connection for schizophrenia in a December 1980 rating action, based upon the conclusion that the record did not establish that the disability was present either in service, or to a degree of 10 percent within one year after service. 2. The veteran was informed of the 1980 decision denying his claim for service connection, and of his appellate rights, in a letter addressed to him in January 1981. He did not perfect an appeal with respect to that decision, and it became final. 3. The decision to deny service connection for schizophrenia was confirmed in subsequent rating actions, the most recent of which was in August 1992; these decisions were essentially based upon the finding that the presence of schizophrenia in service or to a degree of 10 percent within one year after service had not been shown by the evidence of record. 4. The evidence obtained, since the August 1992 denial of the veteran's claim for service connection for schizophrenia, includes a pre-sentencing report prepared in May 1977 by a probation and parole officer who recorded that he had been advised, by a physician who had recently examined the veteran, that the veteran was suffering from "visual and auditory schizophrenia" which had had its onset during the veteran's military service. CONCLUSIONS OF LAW 1. Evidence received since the August 1992 denial by the RO of the veteran's claim for entitlement to service connection for schizophrenia is new and material, and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 2. The veteran has submitted a well-grounded claim for service connection for schizophrenia. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS a. New and Material Evidence Under applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131. Service connection for schizophrenia may be presumed if it became manifest to a degree of 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 4.130 (1999). A review of the record reflects that the veteran initially attempted to establish entitlement to service connection for a psychiatric disability in October 1979. In connection with that claim, the RO reviewed the veteran's service medical records, and the report of an examination conducted for VA purposes in September 1979. Although the veteran was diagnosed to have paranoid type schizophrenia following the VA examination, because the service medical records did not reflect the presence of that disability and the disability was not shown within one year after the veteran's November 1976 discharge from service, the claim was denied in a January 1980 rating action. The veteran was notified of this decision and of his appellate rights in a letter sent to him at his current address of record. The veteran did not timely appeal that decision and, therefore, it became final under the law. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Subsequently, the record reflects that the decision to deny service connection for schizophrenia was confirmed on a number of occasions. Specifically this occurred in August 1984, July 1985, January 1986, and August 1992. On each occasion, while medical evidence continued to show that the veteran was currently diagnosed with schizophrenia, and the veteran maintained that it had its onset during service, there was no medical evidence demonstrating the presence of the disability in service, or within one year after the veteran's discharge from service. The evidence also shows that the veteran was sent notification of his appellate rights with respect to the August 1984, January 1986, and August 1992 confirmed rating actions but, again, he did not timely appeal any of those decisions, and they became final. As set forth in the Introduction section of this decision, the veteran's present appeal arises from a June 1995 rating action. Because the present appeal does not arise from an original claim, but rather comes from an attempt to reopen a claim which was previously denied, the Board must bear in mind the important distinctions between those two types of claims. Prior to our discussion of the evidence which has been obtained in connection with the veteran's current appeal, we must first note that the United States Court of Appeals for Veterans Claims had previously held that the Secretary of Veterans Affairs and, on appeal, the Board, were required to perform a two-step analysis when a claimant sought to reopen a claim based upon new evidence. First, it was to be determined whether the evidence was "new and material." Second, if the Board determined that the claimant had produced new and material evidence, the claim was reopened and the Board evaluated the merits of the veteran's claim in light of all the evidence, both old and new. Manio v. Derwinski, 1 Vet. App. 144 (1991). Whether the new evidence was "material" turned essentially upon the reasonable possibility that, when viewed in the context of all the evidence, it would change the outcome. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The Court more recently held that the two-step Manio process has been replaced with a three-step process. See Elkins v. West, 12 Vet. App. 209 (1999) (en banc), interpreting and applying a decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). The procedure which we must now follow is - first, it must be determined whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a); second, after the claim has been reopened, it must be determined whether, based upon all the evidence of record, the claim, as reopened, is well grounded; third, if the claim is well grounded, the merits of the claim must be addressed and, if ripe for decision, adjudicated. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc). In addition, Hodge overruled Colvin and its progeny as to the materiality element of the new-and-material-evidence test. See Elkins, supra, at 214. As defined by regulation, new and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which, by itself or in connection with the evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The Federal Circuit Court has held that the regulatory standard alone must be the test of materiality. Hodge, supra. In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial caselaw, "new" evidence is that which was not of record at the time of the last final disallowance ("on any basis" - merits or otherwise) of the claim, and is not "merely cumulative" of other evidence which was then of record. See Evans v. Brown, 9 Vet. App. 273, 283-285 (1996). This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Although, as noted above, Hodge overruled Colvin and its progeny as to the materiality test, it does not appear that the analysis as to what is new evidence has been overruled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 326 (1999), noting that Hodge did not deal with the test for determining whether evidence is new, which is a determination separate from whether it is material. As to the materiality standard, the Federal Circuit's holding in Hodge has been interpreted by a panel of the Court of Appeals for Veterans Claims: "Hodge provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim." Fossie v. West, 12 Vet. App. 1, 4 (1998), motion for recon/review denied, 12 Vet. App. 234 (1999). In determining whether newly submitted evidence is material under the caselaw discussed above, we are further guided by the Federal Circuit Court's discussion of the "uniquely pro-claimant" quality of the veterans' benefits system such that, although "not every piece of new evidence is 'material' . . . we are concerned . . . that some new evidence may well contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its ratings decision." Hodge v. West, supra, at 1363. The credibility of new evidence is assumed for the limited purpose of determining whether it is material. Justus v. Principi, 3 Vet.App. 510 (1992). As noted above, under the precedent decision of the Court in the Evans case, supra, in order to reopen a previously and finally denied claim there must be new and material evidence entered into the record since the most recent denial on any basis, either on the merits or on an attempted reopening. Id. at 285. Therefore, as previously explained, the evidence which must be considered at this time, in connection with the veteran's claim of service connection for schizophrenia, is that which has been submitted since the RO's last prior final decision addressing that matter. In this regard, the Board notes that, prior to the June 1995 rating action from which the current appeal arises, the RO last reviewed the evidence of record in evaluating an attempt to reopen the claim for service connection for schizophrenia in connection with its August 1992 rating action. We observe, however, that, in April 1993, the veteran had again attempted to reopen his claim for service connection. That claim was denied in May 1994. Significantly, however, the basis for that denial was the veteran's failure to cooperate with a request for information that the RO made of him. The denial was not based upon a review of any evidence. Because of that, in determining whether new and material evidence has been received sufficient to reopen the veteran's current claim, the Board will consider that evidence which has been submitted since September 1992, the prior final occasion when the RO considered any evidence on this question. Evidence submitted since 1992 includes a pre-sentencing report prepared in May 1977, by a probation and parole officer, which evidently followed the veteran's conviction of reckless driving and eluding a police officer. This report was apparently provided to the presiding judge for consideration in setting an appropriate sentence following the veteran's conviction. The report reflects that its author had spoken with a physician who had conducted an evaluation of the veteran in May 1977, while the veteran was incarcerated. That physician reportedly advised that the veteran was "one of the sickest persons I have seen for some time" and recommended the veteran's commitment to a hospital for "his mental problems." The physician also reportedly described the veteran as "acutely psychotic" and considered him to be suffering from "visual and auditory schizophrenia," the onset of which he opined had occurred during the veteran's military service. Although the foregoing evidence is not a medical record, since it was prepared by an officer of a court, acting in his official capacity, and appears to simply relate the findings of a physician who had examined the veteran, we presume it to accurately reflect those medical findings. (Indeed, for purposes of reopening the veteran's claim, we are required to presume the credibility of such new evidence.) In any event, since the medical findings reflected in this May 1977 report appear to show, for the first time, the presence of a psychotic disorder to a disabling degree of at least 10 percent within one year of the veteran's November 1976 service discharge, and the report includes the opinion of an examining physician to the effect that the mental disorder had its onset in service, we find that this evidence bears directly and substantially upon the specific matter under consideration and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. See 38 C.F.R. § 3.156(a) (1998); 38 U.S.C.A. § 5108 (West 1991). Accordingly, the Board concludes that the veteran has submitted evidence that is new and material, and the claim for service connection for a schizophrenia is reopened. b. Well-Grounded Claim Having concluded that the veteran has reopened his claim for service connection for schizophrenia, the Board must next consider whether the evidence establishes that the underlying claim for service connection is well grounded. The Court of Appeals for Veterans Claims has held that, in order to establish that a claim for service connection is well grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a connection or link) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. See Elkins v. West, 12 Vet. App. 209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). "Although the claim need not be conclusive, the statute [38 U.S.C.A. §5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). As described in the previous portion of this decision, the evidence in this case now includes a 1977 report prepared in the context of official judicial proceedings, describing the findings made following a physician's examination of the veteran in May 1977. That physician appears to have concluded that the veteran had schizophrenia and that, with respect to the veteran's mental problems, he was one of the sickest persons this physician had seen for some time. The physician also apparently concluded that the veteran's psychiatric impairment had had its onset during military service. In view of these conclusions, together with the fact that the veteran continues to carry a diagnosis of schizophrenia, as set out in the 1997 VA examination, the Board finds that the above described criteria, which must be met to establish a well-grounded claim for service connection for schizophrenia, have been met in this case. ORDER To the extent the Board has determined that new and material evidence has been submitted to reopen the veteran's claim for service connection for schizophrenia, the appeal is granted. The veteran's claim for service connection for schizophrenia is well grounded, thereby giving rise to a duty to assist in its development, and to this extent also, the appeal is granted. REMAND Having concluded that the veteran's claim for service connection for schizophrenia has been reopened, and that the claim is well grounded, the Board is of the opinion that additional development is necessary prior to entering a final determination regarding a decision on the underlying merits of the claim. As indicated above, the evidence that the veteran had schizophrenia in 1977 consists of the report of a probation and parole officer. While the source of this officer's information was apparently a physician who had conducted an evaluation of the veteran, the report was the parole officer's, not the physician's. Therefore, the report may have been subject to a filtering by the parole officer's lay sensibilities on the subject, which could have had a substantial impact upon the way the physician's evaluation was set forth. Moreover, the Board notes that the claims file also reflects that, in June 1977, the veteran was committed by a judicial order to a private hospital, the records of which have been associated with the claims file. These records, generated in June and July 1977, reflect that the veteran was diagnosed as manifesting a disorder characterized as an "other paranoid state." They do not show a diagnosis of schizophrenia. Similarly, they do not discuss the relationship, if any, between the two. Under these circumstances, the Board is of the view that the claims file should be referred to another VA physician, who should review it in its entirety and render an opinion which specifically sets forth the time period during which the reviewer considers the onset of the veteran's schizophrenia to have occurred. For the reasons set forth above, this case is being remanded to the RO for the following action: 1. The RO should refer the veteran's claims file to a VA physician knowledgeable in the field of psychiatric illnesses. This physician should review the claims file, including this Remand, make a notation that such review took place, and provide a typewritten report in which is set forth when, in his or her opinion, it is at least as likely as not that the onset of the veteran's schizophrenia occurred, and the manner by which it was manifested. A complete rationale for any opinion offered should be set forth in the report provided, together with citation to appropriate supporting records. In the event a current examination of the veteran is deemed warranted, that should be arranged, although, if the veteran fails to report for such an examination, the requested opinions based on the available records should, nevertheless, still be provided. 2. Upon completion of the above, the RO should review the evidence, and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete (for example, if any requested opinions are not provided), appropriate corrective action should be taken. 3. Thereafter, the RO should enter its decision concerning the veteran's claim for service connection for schizophrenia. If the decision is adverse to the veteran, the RO should issue a supplemental statement of the case to the veteran and his representative, both of whom should be given a reasonable opportunity to respond before the case is returned to the Board for further review. No action is required of the veteran unless he receives further notice, although he has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. ANDREW J. MULLEN Member, Board of Veterans' Appeals