Citation Nr: 0937818 Decision Date: 10/05/09 Archive Date: 10/14/09 DOCKET NO. 06-10 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability and, if so, whether that claim should be granted. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD E. Woodward Deutsch, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that reopened the Veteran's claim for service connection for an psychiatric disability, to include schizophrenia, depression, and anxiety, but then denied the claim on the merits. In a March 2008 decision, the Board found that new and material evidence had not been submitted and declined to reopen the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. Pursuant to a Joint Motion to Vacate and Remand, the Court, in a June 2009 Order, vacated the March 2008 decision and remanded the appeal to the Board. In July 2009, the Veteran submitted additional clinical evidence directly to the Board, accompanied by a waiver of RO consideration. That evidence includes a statement from the Veteran's VA treating psychiatrist indicating that the Veteran is unable to work as a result of schizoaffective disorder. In light of the action taken below to grant the Veteran's claim for a psychiatric disability, the Board interprets the aforementioned clinical evidence as raising an implicit claim of entitlement to a total disability rating based on individual unemployability due to a service- connected disability (TDIU). As that claim has not been developed for appellate review, the Board refers it to the RO for appropriate action. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder, to include schizophrenia, depression, and anxiety (previously evaluated as schizoaffective disorder and schizoid personality), was denied in a prior April 1990 RO decision. The Veteran did not appeal that decision. 2. Evidence received since the last final decision in April 1990 is new, and is also material because it raises a reasonable possibility of substantiating that claim. 3. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed psychiatric disability (schizoaffective disorder) is related to his period of active service. CONCLUSIONS OF LAW 1. The April 1990 RO decision that denied service connection for a psychiatric disability is final. 38 U.S.C.A. § 7104 (West 2009); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2009). 2. New and material evidence has been received to reopen a claim for service connection for a psychiatric disability. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156 (2009). 3. The criteria for service connection for a psychiatric disability are met. 38 U.S.C.A. §§ 1131, 1132, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION New and Material Evidence In an April 1965 rating decision, the RO denied the Veteran's claim for service connection for a psychiatric disability. The RO declined to reopen the claim in December 1971 and again in April 1990. More recently, in an April 2005 rating decision, the RO reopened the claim but then denied it on the merits. However, while the RO found that new and material evidence had been submitted to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, the Board must still consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In the decision dated in April 1990, the RO denied the Veteran's application to reopen his claim for service connection for an acquired psychiatric disorder. The Veteran did not appeal that decision. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2009); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103 (2009). Thus, the April 1990 decision became final because the appellant did not file a timely appeal. The claim for entitlement to service connection for an acquired psychiatric disorder may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in December 2004. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2009). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence submitted to VA at the time of the prior final denial consisted of the Veteran's service medical records dated from May 1960 to March 1961. Those records revealed that, on examination prior to his entry into service, the Veteran was clinically evaluated to have a psychiatric abnormality. However, no diagnosis of any personality deviation or psychiatric disability was specified at that time. Subsequent service records dated in February 1961 indicated that the Veteran was admitted for psychiatric consultation and treatment after threatening to do bodily harm to himself if he was forced to return to sea. He was subsequently diagnosed with having a schizoid personality disorder and discharged from service by reason of unsuitability in March 1961. Additional evidence before the RO at the time of the last adjudication included post-service VA and private medical records reflecting ongoing inpatient and outpatient treatment for passive-aggressive behavior, suicidal ideations, and various psychiatric problems, and a longstanding diagnosis of paranoid schizophrenia. Also of record were statements from the Veteran's mother and Veteran himself indicating that his personality had changed and he had developed a "nerve problem" after being assigned to a particular Navy ship. Based on the evidence then of record, the RO determined that the Veteran's psychiatric problems were due to a personality disorder that was not incurred in or aggravated by his military service. Consequently the claim was denied. In support of his application to reopen his claim, the Veteran resubmitted his service medical records. He also provided previously unsubmitted medical evidence, including private medical records from the South Carolina State Hospital, where he was diagnosed with a psychotic disorder (schizophrenic reaction, chronic, undifferentiated type) and treated on an inpatient basis from September 1965 until May 1966. Significantly, those records reflect that the Veteran had exhibited depression, thoughts of suicide, delusional behavior, and other psychiatric problems since the early 1960s. The Veteran also submitted a February 1988 treatment report from the Watauga Mental Health Center, which indicates that the Veteran's first hospitalization for psychotic behavior occurred in 1965 when he was diagnosed with a schizophreniform disorder of chronic, undifferentiated type. The examining psychiatrist at the Watauga facility noted that the Veteran had been hospitalized on several other occasions for symptoms of a psychotic disorder, including delusions and auditory hallucinations. However, the psychiatrist did not relate the Veteran's psychotic disorder to his period of service. Additional evidence not previously before the RO at the time of the April 1990 rating decision includes VA records dated from January 1995 to January 2005, which indicate that the Veteran was treated for many years for symptoms of schizophrenia and responded positively to medication and to group and individual therapy. Those records included the report of a May 2006 consultation with a VA psychiatrist. In the course of that consultation, the Veteran told the VA psychiatrist that he had been discharged from the Navy in 1961 for depression and that his diagnosis that was later changed to a schizoid disorder. The Veteran added that he had since been treated for chronic mental illness. He further opined that his military service, in particular his disappointment in the behavior of his shipmates and the lack of respect he received from his superiors, had worsened his mental illness. The VA psychiatrist's diagnostic impression was schizoaffective disorder. However, the psychiatrist offered no clinical opinion as to the causation, etiology, or aggravation of that disorder. The Board observes that the above evidence was submitted prior to the March 2008 Board decision that declined to reopen his claim. Following the June 2009 Court Order vacating that decision, the Veteran submitted a medical opinion from a private psychiatrist and a statement from his VA treating physician, both of which indicated that his current psychiatric problems were related to his period of active service. The Board finds that the resubmitted service medical records do not constitute new evidence in that those records were previously considered by the RO. Thus, they are not new evidence. Nevertheless, the Board finds that the other newly received medical evidence, reflecting the Veteran's post- service psychiatric hospitalization in the mid-1960s and subsequent inpatient and outpatient treatment for symptoms of a psychotic disorder, including delusions and auditory hallucinations, and, in particular, the recently submitted opinions of the private psychiatrist and VA psychiatric treating provider, are both new and material. That newly submitted clinical evidence tends to corroborate the Veteran's contention that his current psychiatric problems are related to his experiences while serving on active duty aboard a Navy ship. That new evidence was not previously considered by agency decision makers, is not cumulative or redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. Furthermore, that new evidence is presumed credible for the purpose of determining whether it is material to the Veteran's claim. New evidence is sufficient to reopen a claim if it contributes to a more complete picture of the circumstances surrounding the origin of a Veteran's disability, even where it may not convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Here, the new evidence submitted in support of the Veteran's claim for service connection for psychiatric disability relates to a previously unestablished facts: competent evidence tending to show that he suffers from a specific disability (schizoaffective disorder) that was incurred in or aggravated by service. Therefore, the Board finds that new evidence, when presumed credible for the purpose of determining whether it is material, is material. Accordingly, the Veteran's claim for service connection for a psychiatric disability is reopened, and the Board must now consider whether service connection is warranted. Service Connection Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R § 3.303 (2009). When no preexisting condition is noted at the time a Veteran enters service, the presumption of soundness arises and the Veteran is presumed to have been sound upon entry. The presumption of soundness may only be rebutted by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b) (2009). Preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the normal progress of the disease. 38 C.F.R. § 3.306 (2009). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Service connection for some disorders, including psychoses, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (2009); 38 C.F.R. § 3.307, 3.309 (2009). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). The Board observes that personality disorders are not diseases or injuries under VA regulations. 38 C.F.R. § 3.303(c). Nevertheless, service connection may be granted if the evidence shows that a psychiatric disability was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127; Carpenter v. Brown, 8 Vet. App, 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service medical records show that he complained on entry of difficulty sleeping, occasional sleepwalking, and a fast heart rate when "nervous." While he was clinically evaluated to have a psychiatric abnormality, no personality deviation or psychiatric disability was specified and he was found to be fit for active service. Nevertheless, because a psychiatric abnormality was noted at entrance into service, the Board finds that such an abnormality existed prior to service and the pertinent question is whether it was aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Subsequent service medical records reveal that in February 1961 the Veteran was hospitalized after threatening to commit suicide and assessed as having an indeterminate psychiatric disorder. After three weeks of hospitalization, the Veteran's diagnosis was changed to a schizoid personality disorder. In late March 1961, he underwent a Medical Evaluation Board (MEB) in which he reported a childhood of "emotional impoverishment," manifested by depressive thoughts and anorexic behavior. The Veteran further indicated that, after entering service, he had failed to adjust to the rigors of military life and "was always on the verge of a fight with his shipmates." Based on the Veteran's statements and a review of his in-service hospitalization records, the MEB examiner determined that the Veteran had a preexisting personality disorder that rendered him unfit for service. He was subsequently discharged on the grounds of unsuitability. Post-service medical records show that from September 1965 to May 1966, the Veteran underwent inpatient psychiatric treatment at a private hospital where he was diagnosed with schizophrenic reaction, chronic, undifferentiated type. His hospital treatment records indicate that his psychotic symptoms, including suicidal ideation and "flights of fantasy," had manifested as early as 1961 or 1962. Subsequent medical records reveal that the Veteran was hospitalized on numerous occasions for mental health problems. In a February 1988 report, the Veteran's private treating psychiatrist noted that the Veteran had a long history of behavior, including delusions and auditory hallucinations, consistent with a psychotic disorder. However, that psychiatrist did not relate the Veteran's psychotic disorder to his period of service. VA medical records dated from January 1995 to January 2005 reflect treatment for chronic mental illness. In a May 2006 consultation with a VA psychiatrist, the Veteran indicated that he had been discharged from the Navy in 1961 for depression and that this diagnosis that was later changed to a schizoid disorder. The Veteran stated that his experiences serving aboard a Navy vessel, specifically a series of negative interactions with his superiors and fellow shipmates, had aggravated his mental illness. The VA psychiatrist diagnosed the Veteran with schizoaffective disorder, but offered no clinical opinion as to the causation, etiology, or aggravation of the disease. The record thereafter shows that, in July 2009, the Veteran's claims folder was sent to a private psychiatrist, who reviewed the service and post-service medical records and lay statements submitted in support of the Veteran's claim. Based on that review, the psychiatrist opined that the Veteran's currently diagnosed schizoaffective disorder "ha[d] its roots in his military service." As a rationale for that opinion, the private psychiatrist referenced the criteria for schizoaffective disorder listed in the Diagnostic and Statistical Manual (DSM-IV) as well as several psychiatric treatises describing prodromes, or early non- specific symptoms, which commonly occurred before the specific manifestation of that disorder. The private psychiatrist noted that, while the Veteran was noted to have displayed "some depression and anorexia prior to service," those symptoms were situational and episodic in nature and it was not until the Veteran entered service and was "unable to adjust to military life" aboard ship that he manifested marked anxiety and depression as well as other prodromal symptoms (delusions, aggression, irritability, failure to adapt, schizoid tendencies, poor motivation, asociality, loss of abstracting ability, blunted defect, thought disorder, and suicidal thoughts). Those symptoms, the psychiatrist concluded, were "all precursors of the schizoaffective disorder that evolved over the next few years." The private psychiatrist's opinion was submitted in tandem with a statement from the Veteran's VA treating psychiatrist, who opined that the schizoid personality disorder for which the Veteran was discharged from service "was the precursor of the chronic psychiatric disorder," for which the psychiatrist had treated the Veteran for many years. In rendering that opinion, that psychiatrist referenced the Veteran's in-service and post-service medical records. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Gabrielson v. Brown, 7 Vet. App. 36 (1994). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the July 2009 opinions set forth by the private psychiatrist and VA psychiatric treating provider, indicating that the Veteran's in-service psychiatric symptoms were precursors of his currently diagnosed schizoaffective disorder, are more probative and persuasive than the March 1961 MEB examiner's finding that those symptoms were all attributable to a preexisting personality disorder. The July 2009 opinions were based on the examiners' thorough and detailed examination of claims folder and supported by a rationale. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Additionally, the Board considers it significant that the July 2009 examiners' opinions constitute the most recent medical evidence of record and were undertaken directly address the issue on appeal. Furthermore, the VA psychiatrist had treated the Veteran for schizoaffective disorder and related symptoms for many years, while the private psychiatrist included analysis of pertinent medical literature addressing the common early symptoms of schizoaffective disorder, many of which the Veteran was shown to manifest in service but not before. This adds to the probative value of their opinions. 38 C.F.R. § 3.304(b)(1). In contrast, the March 1961 MEB examiner's report, indicating that the Veteran had a preexisting schizoid personality disorder, was not supported by adequate rationale, as the examiner does not explain why he thought that disorder was not related to service. If the examiner does not provide a rationale for the opinion, that weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Moreover, the MEB examiner's findings regarding the Veteran's prior history of psychiatric problems were based entirely on the Veteran's own unsubstantiated statements at that time. Thus, those findings are no more probative than the facts alleged by the Veteran himself. Swann v. Brown, 5 Vet. App. 229 (1993). After a careful review of the evidence, the Board finds that the Veteran's service and post-service medical records and, in particular, the positive nexus opinions provided by the private psychiatrist and VA psychiatric treating provider demonstrate that the Veteran's currently diagnosed psychiatric disability is related to his period of active service. The Board acknowledges that the Veteran was noted on entry into service to have a psychiatric abnormality. Significantly, however, no personality deviation or psychiatric disability was specified at that time and he was found to be fit for service. Additionally, while the Veteran's reported preservice symptoms were suggestive of a possible psychiatric disorder, he did not indicate, nor did the clinical evidence show, that he had ever been diagnosed with or treated for such a disorder prior to service. Service and post-service medical records thereafter reveal that the Veteran's overall psychiatric symptoms worsened in service to the point that he required hospitalization and was found unfit for active duty due to his mental health problems. Post-service medical records demonstrate that the worsening of his psychiatric symptoms has been permanent as those symptoms have persisted to the present day. In addition, the Board finds that the lay statements of the Veteran and his mother are consistent, credible, and probative as to a permanent worsening of his psychiatric problems in service. Therefore, while the Board finds that the evidence of record shows that the Veteran had a preexisting psychiatric abnormality that was noted on entry to service, that evidence also demonstrates that such an abnormality permanently increased in severity in service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Moreover, even assuming that the Veteran's preexisting psychiatric abnormality was consistent with a personality disorder, as the March 1961 MEB examiner determined, the Board finds that service connection is nonetheless warranted as the competent evidence of record demonstrates that a separate psychiatric disability, that is, schizoaffective disorder, was incurred in or aggravated by service and superimposed upon that preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127; Carpenter v. Brown, 8 Vet. App, 240, 245 (1995); Beno v. Principi, 3 Vet. App. 439, 441 (1992). Indeed, that was the conclusion of the July 2009 private psychiatrist, who distinguished the Veteran's reported preservice symptoms from the in-service psychiatric manifestations, which served as precursors of his current schizoaffective disorder. Thus, the findings of a preexisting personality disorder, reflected in the service medical records, have been reconciled and are not inconsistent with that private psychiatrist's positive nexus opinion to which the Board affords great probative weight. For the foregoing reasons, the Board concludes that the balance of positive and negative evidence is at the very least in relative equipoise. The Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Where the evidence supports the claim or is in relative equipoise, the appellant prevails. 38 U.S.C.A. 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board finds that service connection for a psychiatric disability is warranted. ORDER New and material evidence has been received to reopen the claim for service connection for a psychiatric disability. Service connection for a psychiatric disability is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs