Citation Nr: 18132247
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 527
DATE:	September 6, 2018
ORDER
The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, based on the submission of new and material evidence is granted.

REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, is remanded. 
FINDINGS OF FACT
1. An October 2009 rating decision declined to reopen the claim of service connection for a personality disorder; the Veteran did not appeal the denial of this issue.
2. Evidence received since the final October 2009 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 
CONCLUSIONS OF LAW
1. The October 2009 rating decision is final.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018).
2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder.  38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1983 to May 1984.
Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim.  38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a).  New evidence is evidence not previously submitted to agency decision makers.  38 C.F.R. § 3.156 (a).  Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be either cumulative or 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.  Id. 
For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  New and material evidence is not required as to each previously unproven element of a claim in order to reopen.  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).  There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim.  Id. at 117–18.
The Regional Office (RO) initially denied service connection for a personality disorder in November 1987, finding that the Veteran had not alleged suffering from a disability that could be service-connected.  In the year following the November 1987 rating decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for a personality disorder nor did he submit any documents concerning the claim of service connection for a personality disorder that could be considered new and material evidence.  38 C.F.R. §§ 3.156(b), 20.302.  Therefore, the November 1987 decision became final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.
The Veteran’s claim for service connection for a personality disorder was most recently denied by the RO in October 2009 based on a finding that he had not submitted new and material evidence to support his claim for such.  The rating decision explained that the Veteran’s claim had been denied previously because personality disorders were considered a constitutional or developmental abnormality and was not a disability under a law.  In the year following the October 2009 rating decision, the Veteran did not submit any statements expressing disagreement with the denial of service connection for a personality disorder nor did he submit any documents concerning the claim of service connection for a personality disorder that could be considered new and material evidence.  38 C.F.R. §§ 3.156(b), 20.302.  Therefore, the October 2009 decision became final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.
Pertinent evidence received since the October 2009 rating decision consists of treatment records from Fulton County Department of Mental Health, treatment records from West Mental Health Center, and the Veteran’s lay statements.  The Veteran’s treatment records indicate he has a diagnosis of schizoaffective disorder.  This evidence is new in that it was not previously submitted.  It is also material insofar as it addresses one of the bases for the prior denial of the Veteran’s claim (i.e., the lack of a psychiatric diagnosis other than a personality disorder).  In this regard, the Board notes that schizoaffective disorders are considered a psychosis, and not a personality disorder.  38 C.F.R. § 3.384, see 38 C.F.R. § 3.309(a).  Accordingly, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for an acquired psychiatric disorder must be granted.  See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).
REASONS FOR REMAND
The decision above reopens the claim for service connection for an acquired psychiatric disorder, to include schizoaffective disorder.  This claim has not been adjudicated by the RO on its merits.  Accordingly, the Board will remand this matter for the RO to adjudicate the Veteran’s claim in the first instance. 
Prior to the RO’s de novo review of the claim of service connection, however, additional development must be completed.  In particular, the Veteran submits that his schizoaffective disorder is etiologically related to active service because he experienced “racial slurs, homosexuality, assault, confinement, theft of property, and cruel exercise regimen that last for 3 hrs. straight.”  The Board finds that a VA examination for a medical opinion would be helpful in this case.
The matter is REMANDED for the following actions:
1. Ask the Veteran to identify the provider(s) of all treatment or evaluation he has received for his acquired psychiatric disorder, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation.  Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran.
2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder.  The examiner should provide opinions responding to the following:
(a)	What are the Veteran’s current psychiatric disabilities?  
(b)	For each current psychiatric disability that is not a personality disorder, to include schizoaffective disorder, the examiner should address whether it clearly and unmistakably (undebatable) preexisted the Veteran’s service.  If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated by service.  
(c)	For each current psychiatric disability that is not a personality disorder, to include schizoaffective disorder, if the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s allegation that he was subject to “racial slurs, homosexuality, assault, confinement, theft of property, and cruel exercise regimen that last for 3 hrs. straight.”  
(d)	For each current psychiatric disability that is not a personality disorder, but is determined to be a psychosis (as defined under 38 C.F.R. § 3.384), to include schizoaffective disorder, the examiner should address whether it at least as likely as not (1) began during active service, (2) manifested within one year after separation from service, or (3) was noted during service with continuity of the same symptomatology since service.
In responding to the foregoing questions, the examiner should also discuss specifically the psychiatric diagnoses already of record (i.e., schizoaffective disorder), and whether he or she disagrees with that past diagnosis.  The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given.
3. After the above development has been completed, adjudicate the claim for service connection for an acquired psychiatric disorder, to include schizoaffective disorder, on the merits of the claim.  
 
A. ISHIZAWAR
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	N. Shah, Associate Counsel 

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