Citation Nr: 1111410 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 99-10 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES Entitlement to service connection for an acquired psychiatric disorder. Entitlement to special monthly compensation based upon the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from July 1984 to August 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. The Board denied service connection for paranoid schizophrenia in June 2005. In an October 2007 memorandum decision, the United States Court of Appeals for Veterans Claims (Court) concluded that the Board's June 2005 decision is reversed as to the Board's conclusion that the appellant's pre-existing schizophrenia was not aggravated in service and remanded with instructions to enter a finding of in-service aggravation; and set aside and remanded with respect to the Board's decision regarding nexus between the appellant's current disability and the in-service aggravation. In April 2008, this matter was remanded for further development and adjudication. This having been completed, the matter has been returned to the Board for further review. During the pendency of this appeal, the RO denied entitlement special monthly compensation for aid and attendance for the Veteran's spouse in rating decisions dated in August 2009 and February 2010. The Veteran filed a timely notice of disagreement and the RO issued a Statement of the Case dated in June 2010. The Veteran filed a substantive appeal dated in June 2010. The Board notes that the Court has held that claims for service connection for one psychiatric disorder encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Therefore, the Board has characterized the issue as set forth above. The issue of entitlement to special monthly compensation based upon the need for regular aid and attendance of another person is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is competent evidence in the record, which clearly and unmistakably shows that the Veteran's psychiatric disability of schizophrenia pre-existed service. 2. The competent medical evidence of record medical evidence also shows that the pre-existing schizophrenia was aggravated during active service, and that there exists a nexus between the Veteran's current schizophrenia and the in-service aggravation of his mental illness. CONCLUSION OF LAW Paranoid schizophrenia was aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the Veteran, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for paranoid schizophrenia. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Service connection for an acquired psychiatric disorder The Veteran contends that he currently suffers from a psychiatric disorder that was aggravated by events incurred during active service, and that service connection for his psychiatric disorder is warranted. Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Also, certain disorders - including psychosis -- may be presumed to have been incurred during service when manifested to a compensable degree within a specified time (usually one year) following separation from service. See 38 C.F.R. §§ 3.307, 3.309. Consideration for presumptive service connection for such diseases and disorders requires a minimum of 90 days of active service during a period of war or after December 31, 1946. In this case, the Veteran's dates of verified active service indicate that he is entitled to be considered for presumptive service connection. In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304; Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). A Veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination. The presumption of soundness may also be rebutted where clear and unmistakable evidence demonstrates both that the condition existed before service and that the condition was not aggravated by such service. See 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003 (O.G.C. Prec. 3-2003). A pre-existing condition will be presumed to have been aggravated in service in cases where there was an increase in disability during service. There is a presumption of aggravation if the disability increased in severity during service, but the presumption does not apply when there is no such increase. The presumption of aggravation may be rebutted by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The requirement of an increase in disability applies only to determinations concerning the presumption of aggravation under 38 U.S.C.A. § 1153 and does not apply to determinations concerning the presumption of soundness under 38 U.S.C.A. § 1111 discussed above. See VAOPGCPREC 3-2003 (O.G.C. Prec. 3- 2003). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Medical records dating from before the Veteran's enlistment into active duty show that he was first hospitalized for psychiatric problems in October 1978, when he was 12 years old. Psychiatric testing did not reveal evidence of a thought disorder, but the Veteran's mother had a long history of schizophrenia, and the Veteran was diagnosed with severe childhood schizophrenia at the time of his discharge in December 1978. The Veteran was again hospitalized in February 1982 for an acute schizophrenic reaction. The Veteran's service treatment records do not show that he was diagnosed with a psychiatric disorder during active service. The Veteran's enlistment and separation examination reports, dated in May 1984 and April 1987 respectively, were marked as normal under the psychiatric section. He did, however, report nervous trouble, depression, sleep troubles, and memory loss on the March 1987 medical history form, and the examiner indicated that the Veteran had occasional tension while at work. A July 1987 mental status evaluation report noted that the Veteran was "mentally responsible" and detailed that there was no diagnosis that required disposition through medical channels. The earliest record contained in the claims file concerning the Veteran's post-service psychiatric treatment is dated in August 1989, when he was hospitalized at the Salem VA Medical Center (VAMC). He was diagnosed with alcohol and cannabis abuse and a nonspecified personality disorder. Several months later, in March 1990, he was incarcerated for arson which had been committed in November 1989. During his incarceration, he was noted to have deteriorating behavior in August 1990. At that time, his working diagnosis was of a psychotic disorder, not otherwise specified. Records dated in 1991 from the Veteran's period of incarceration indicate that he was treated for a catatonic reaction but did not show clear evidence of psychosis. However, additional private treatment records dated in August 1990 and July 1991 indicate that the Veteran was treated for a psychotic disorder. An October 1992 psychiatric evaluation report conducted for the Social Security Administration listed an impression of chronic undifferentiated schizophrenia with history of substance abuse. The Veteran continued to receive psychiatric treatment every few years, and in December 1993 requested outpatient treatment for substance abuse at the VAMC. In a January 1994 VA treatment note, the Veteran complained of hearing voices and requested psychiatric treatment. An August 1995 VA hospital summary listed a diagnosis of psychotic disorder not otherwise specified, and rule out substance abuse, rule out schizophrenia. An October 1995 VA examination report listed a diagnosis of psychotic illness. Paranoid schizophrenia and somatization disorder were diagnosed during an August 1997 VA examination. VA hospital and outpatient treatment records dated in May and June 1998 indicate that the Veteran suffered from an acute exacerbation of paranoid schizophrenia during that time period. In May 1998, the Veteran reported to a VA psychologist that he remembered pulling corpses of Koreans and one American out of the ocean while serving in Korea. The psychologist noted that this memory was likely delusional or hallucinatory. The Veteran continued to receive VA psychiatric treatment, and related a history of psychiatric problems since service. He also often reported that he experienced symptoms of schizophrenia during service, but was not treated or diagnosed while on active duty. In a November 1998 VA treatment note, the VA examiner noted that the Veteran gave a history of nervous problems that began during service. The examiner then stated, "It may not have been diagnosed schizophrenia at the time, but that was perhaps the early manifestation of his schizophrenic illness." In an April 2000 VA treatment note, the same VA examiner listed a diagnosis of schizophrenia, paranoid type and again noted, "It is possible that his behavior and these manifestations were early start of his schizophrenic illness which manifested fully in 1990 and he had to receive treatment in a psychiatric institution in a catatonic state." The Veteran was afforded a VA examination in March 2002. The examiner determined that the Veteran's schizophrenia had pre-existed service, adding that it is possible that his pre-existing condition was exacerbated by his time in the service. The examiner noted, however, that there is no reflection of this in review of the records in the claims file from the Veteran's service time. At this examination, the Veteran again reported a stressor event of pulling dead bodies from the ocean, but the VA examiner noted that it was unclear whether this event had actually occurred based on the Veteran's psychotic thinking and the lack of documentation in the service records. In an October 2007 memorandum decision, the Court directed that a finding of in-service aggravation be entered, and further noted that the appellant must still demonstrate a nexus between his current disability and the in-service aggravation. Subsequently, in May 2008, the Veteran underwent another VA psychiatric examination. The examiner found that the Veteran had not experienced any unusual or traumatic stressors in service, but did note the Veteran's reports of a stressful experience during his service in Korea when he put the bodies of some drowned soldiers in body bags. The examiner also noted that the Veteran had some striking behavioral problems during service. He diagnosed chronic paranoid type schizophrenia and found that the Veteran's current mental illness was a continuation of his pre-existing psychiatric difficulties and was not a separate condition related to active duty service. The May 2008 VA examiner provided an addendum report to his examination in February 2010. The examiner concluded that it was possible the Veteran's schizophrenia was aggravated during service, but noted the lack of marked stress during the Veteran's active duty. The examiner concluded that it would require speculation to determine whether the Veteran's schizophrenia was in fact aggravated during service. Because the Court's November 2007 decision ordered the Board to find that the Veteran's pre-existing mental illness was aggravated during his active duty service, the question of whether or not the Veteran's pre-existing psychiatric disorder was or was not aggravated during active service has been settled by the Court. The Board must still determine whether there exists a nexus between the Veteran's current disability and the in-service aggravation of a mental illness. Therefore, the matter was referred for a medical expert opinion. The psychiatrist was asked to review the entire record, including service records, and list the diagnosis or diagnoses of the Veteran's current psychiatric disorders (i.e. mental illnesses manifested since his claim for service connection was received in June 1997). Then, for each diagnosis listed, the psychiatrist was asked to express an opinion regarding whether it was at least as likely as not (50 percent or better probability) that there is a nexus between the Veteran's current disability and the aggravation of the Veteran's pre-existing mental illness during active service. A medical expert opinion dated December 2010 was associated with the Veteran's claims file. The psychiatrist indicated that the Veteran's claims file had been reviewed in connection with the report. The psychiatrist stated that a review of the records shows that the Veteran's diagnoses include schizophrenia, paranoid type, while hospitalized May 28 through June 1 1998, and this was the predominant diagnosis for which the Veteran is currently treated. After careful review of the claims file and medical records, the psychiatrist found that the Veteran's current diagnosis of schizophrenia, paranoid type, was at least as likely as not connected to the aggravation of his pre-existing mental illness during active duty. Based on the foregoing, the Board finds that service connection for paranoid schizophrenia based on aggravation is warranted by the evidence of record. In this case, the Veteran's May 1984 enlistment examination report was marked as normal. However, private treatment records dated in 1978 and 1982 clearly indicate that the Veteran suffered from schizophrenia before entering active service in 1984. Thus, there is clear and unmistakable evidence that the Veteran's schizophrenia pre-existed his active service. The medical evidence also shows that the pre-existing schizophrenia was aggravated during active service, and that there exists a nexus between the Veteran's current schizophrenia and the in-service aggravation of his mental illness. Since the preponderance of the evidence is in favor of the claim, the benefit of the doubt is resolved in favor of the Veteran. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Consequently, the Veteran's claim for service connection for paranoid schizophrenia based on aggravation is granted. ORDER Service connection for paranoid schizophrenia is granted. REMAND The Veteran contends that he is entitled to increased compensation based on the need of his spouse for regular aid and attendance. The Veteran states that his wife cannot see. Medical evidence from September 2008 indicates that the Veteran's spouse has light perception only in her right eye and reduced vision in her left eye. More recent records are not available, leaving open the possibility that the eye condition has worsened. The provisions of 38 C.F.R. § 3.351 provide, in pertinent part, that: (a)(2) Increased compensation is payable to a Veteran by reason of the Veteran's spouse being in need of aid and attendance. (b) Aid and attendance; need. Need for aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. The criteria set forth in paragraph (c) of this section will be applied in determining whether such need exists. (c) Aid and attendance; criteria. The Veteran, spouse, surviving spouse or parent will be considered in need of regular aid and attendance if he or she: (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). The VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran asserts that his spouse cannot see and recent medical records are absent from the record. Given the cited authorities, the Board finds that a VA aid and attendance or housebound examination would be helpful in resolving the issues raised by the instant appeal. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran's spouse for a VA aid and attendance or housebound examination which is sufficiently broad to determine the current nature and severity of her chronic disabilities. The claims folder must be sent to the examiner for review. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner must specifically state whether the Veteran's spouse is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less. The examiner must also determined whether the Veteran's spouse is a patient in a nursing home because of mental or physical incapacity, or whether she is in factual need of aid and attendance under the criteria set forth in § 3.352(a). A complete rationale for all opinions expressed my be provided. 2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 3. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs