Citation Nr: 0004019 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 95-18 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from January 1953 to March 1953. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1995 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In the rating decision on appeal, the RO denied service connection for schizophrenia, chronic undifferentiated type; anxiety neurosis with hypochondriasis; conversion reaction; and emotional instability with enuresis. In an April 1997 decision, the Board noted that the RO had erred in phrasing the claim as one for service connection. Rather, the Board noted that the issue was whether new and material evidence had been submitted to reopen a claim for a psychiatric disorder. The Board denied reopening the appellant's claim. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). The Court issued an order on October 9, 1998, which vacated and remanded the April 1997 Board decision. [citation redacted]. In the order, the Court noted that the Board had denied reopening the appellant's claim for service connection for a psychiatric disorder because the appellant had submitted cumulative evidence and Dr. Credeur's statements did not "raise a reasonable possibility of changing the outcome for any of the diagnosed conditions." The Court determined that due to the holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), which changed the analysis in determining whether new and material evidence had been submitted to reopen a previously denied claim, the claim must be remanded for analysis of the claim under 38 C.F.R. § 3.156 (1999). The Board remanded this claim in February 1999. The requested development has been accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. The Board notes that the appellant raised an additional issue of entitlement to service connection for post-traumatic stress disorder. In an October 1999 rating decision, the RO denied service connection for post-traumatic stress disorder; however, the claim for service connection for post-traumatic stress disorder has not been the subject of a notice of disagreement, a statement of the case, or a substantive appeal and absent such, the Board does not have jurisdiction over this issue. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v. Brown, 5 Vet. App. 554 (1993). An application that is not in accord with the statute shall not be entertained by the Board. 38 U.S.C.A. § 7108 (West 1991). Additionally, this Board Member cannot have jurisdiction of this issue. 38 C.F.R. § 19.13 (1999). Furthermore, 38 U.S.C.A. § 7105 (West 1991) establishes a series of very specific, sequential, procedural steps that must be carried out by a claimant and the RO or other "agency of original jurisdiction" (AOJ), see Machado v. Derwinski, 928 F.2d 389, 391 (Fed. Cir. 1991), before a claimant may secure "appellate review" by the Board. Subsection (a) of section 7105 establishes the basic framework for the appellate process, as follows: "[a]ppellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section . . . ." 38 U.S.C.A. § 7105(a); see also Bernard v. Brown, 4 Vet. App. 384 (1994). The steps required for the Board to have jurisdiction over this claim have not been satisfied. Additionally, when another part of VA argued that an issue over which the Board did not have jurisdiction should be remanded, the Court again established that jurisdiction must be considered prior to adjudication of a claim. Hazan v. Gober, 10 Vet. App. 511, 516-17 (1997). Specifically, the Court would not remand a matter over which it had no jurisdiction. Id. FINDINGS OF FACT 1. Service connection for psychiatric disorder was denied by the Board in August 1987. 2. The appellant has brought forth evidence, which is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The appellant has brought forth competent medical evidence of a diagnosis of schizophrenia and competent evidence of a nexus between the diagnosis of schizophrenia and service. CONCLUSIONS OF LAW 1. The August 1987 Board decision is final. 38 U.S.C.A. § 7104(b) (West 1991). 2. The evidence received since the August 1987 Board decision is new and material, and the claim for service connection for psychiatric disorder, to include schizophrenia, is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.156(a) (1999). 3. The claim for service connection for psychiatric disorder, to include schizophrenia, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In an August 1987 decision, the Board denied service connection for psychiatric disorder. At that time, the evidence before the Board were the appellant's application, service medical records, and VA medical records. The Board determined that there was no competent evidence of a nexus between the appellant's post service psychiatric illness was related to service. The Board noted that the service medical records did not reveal psychiatric findings and that the appellant's psychiatric illness had not been shown until several years following service. Stated differently, there was post service evidence of a diagnosis. However, there was no competent evidence of that diagnosis in service; no competent evidence of that diagnosis within one year of separation from service; and no competent evidence that otherwise linked the disorder to service. That decision is final. However, the claim may be reopened if the appellant submits new and material evidence. Under section 3.156 of the Code of Federal Regulations, when presented with a claim to reopen a previously finally denied claim, VA must determine if new and material evidence has been submitted. 38 C.F.R. § 3.156 (1999). New and material evidence is defined as follows: [E]vidence not previously submitted to agency decisionmakers 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 evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. Id. at (a). Therefore, in this case, the Board must determine if new and material evidence has been submitted since the August 1987 Board decision. The Court has held that when determining whether the evidence is new and material, VA must conduct a three-step test. Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (citing Elkins v. West, 12 Vet. App. 209 (1999) (en banc)). First, VA must determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 1991). Id. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Id. Third, if the claim is well grounded, VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Id. Since the August 1987 decision, two medical opinions have been associated with the claims file. In a June 1999 letter, Dr. Nabil M. Gad stated that he believed that the appellant's service-related stress "triggered and/or exacerbated the psychiatric symptoms." In a September 1999 examination report, the VA examiner stated that he agreed with Dr. Gad's medical opinion. The VA examiner added that the symptoms the appellant was experiencing now were consistent with what he had experienced in service, which was "quite probabl[y]" early-onset schizophrenic reaction. At the time of the August 1987 Board decision, there was a lack of competent evidence of a nexus between the diagnosis of schizophrenia and service. Dr. Gad's and the VA examiner's opinions are competent evidence of a nexus between the diagnosis of schizophrenia and service. Based on the prior reasons for the denial, one of the evidentiary defects has been cured. The evidence, when accepted as true, is new and material. Thus, the Board finds that the claim is both reopened and well grounded. 38 U.S.C.A. § 5107(a) (West 1991). ORDER The claim for service connection for schizophrenia is reopened and well grounded. REMAND The appellant has asserted that service records have been lost, destroyed, and/or missing. He has stated that he attacked a company commander and that he was hospitalized in service. The service records in the file do not reveal any such incidents. The Board finds that an attempt to obtain all service records must be made. Additionally, the Board finds that the medical evidence needs to be supplemented. Specifically, the Board wants the VA examiner who examined the appellant in September 1999 to state the basis of his opinion. Accordingly, the case is hereby REMANDED to the RO for the following action: 1. The RO is to attempt to obtain any service hospitalization records and administrative records, to include judicial and non-judicial punishment proceedings, and associate them with the claims file. 2. After the above action is completed, and any additional service records are received and associated with the claims file, the RO is to send the claims file to the VA examiner who conducted the September 1999 psychiatric evaluation and ask him to state upon what evidence he based his opinion that the appellant's schizophrenia manifested in service. Specifically, he is asked to state whether he based his opinion solely on the appellant's statements. If the answer is no, the VA examiner is then asked to specifically identify the manifestations of schizophrenia that are shown in the service records. Any opinion should be based on review of the entire record. The case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters 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. H. N. SCHWARTZ Member, Board of Veterans' Appeals