Citation Nr: 0809986 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 98-07 031A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for the cause of the veteran's death. 2. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002). 3. Whether there was clear and unmistakable error in a February 1968 rating decision that denied entitlement to service connection for schizophrenia. 4. Entitlement to service connection for a psychiatric disability for purposes of accrued benefits. REPRESENTATION Appellant represented by: Robert C. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from May 1967 to January 1968. He died in December 2004. His surviving spouse is the appellant. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which denied service connection for the cause of the veteran's death, entitlement to service connection for schizophrenia, for purposes of accrued benefits and entitlement to DIC under 38 U.S.C.A. § 1318. In June 2006 the Board denied a motion to advance this case on its docket. FINDINGS OF FACT 1. Service connection was not in effect for any disease or disability during the veteran's lifetime. 2. The veteran died in December 2004; the immediate cause of death was diabetic cardiomyopathy as a consequence of diabetes mellitus. 3. The competent medical evidence shows that medications administered during the veteran's military service caused, or contributed substantially to causing, his death. 4. The claim for entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318 is moot. 5. When he died, the veteran had a pending claim of CUE in a February 1968 rating decision, which denied service connection for schizophrenia. 6. The appellant filed a claim for accrued benefits within one year of the veteran's death. 7. The denial of service connection for schizophrenia by the rating decisions in February 1968 did not contain an undebatable error that was outcome determinative. 8. Evidence of record at the time of the veteran's death showed that the psychiatric disability treated in service was not clearly and unmistakably not aggravated in service. 9. Evidence of record at the time of the veteran's death linked a current psychiatric disability, schizoaffective disorder, to the psychiatric disability treated in service. CONCLUSIONS OF LAW 1. The criteria for service connection for the cause of the veteran's death are met. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.303, 3.312 (2007). 2. The claim for entitlement to DIC under the provisions of 38 U.S.C.A. § 1318 is dismissed. 38 U.S.C.A. §§ 1318, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.22, 3.102, 3.159 (2007). 3. The February 1968 decisions which denied service connection for schizophrenia was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5109A, 5121 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105, 3.400, 3.1000 (2007). 3. Evidence of record at the time of the veteran's death showed that schizoaffective disorder was incurred in service. 38 U.S.C.A. §§ 1112, 1131, 5121 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309, 3.1000 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Regarding the appellant's claim for entitlement to service connection for the cause of the veteran's death and entitlement to DIC, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating her claims. Regarding the appellant's claim of CUE, for purposes of accrued benefits, an accrued benefits claim is decided on the basis of evidence of record at the time of the veteran's death. 38 U.S.C.A. § 5121. Further, the VCAA is not applicable to decisions as to CUE in prior final decisions. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). I. Entitlement to service connection for the cause of the veteran's death. The appellant contends that the veteran's death was due to diabetes that was caused by in service medication that he took for his psychiatric disorder. Service treatment records contain no findings referable to diabetes. The veteran was prescribed many medications for his psychiatric symptoms. During hospitalization in August and September 1967, he was prescribed Thorazine. The veteran died on December [redacted], 2004. The death certificate completed by an attending physician, listed the immediate cause of death as diabetic cardiomyopathy due to or as a consequence of diabetes mellitus. In an August 2005 letter, Alan Reis, M.D., the veteran's psychiatrist, stated that the veteran was exposed to medications that were not commonly used today as they have been replaced by much safer medications. The medications included Thorazine (chlorpromazine) and Stelazine (trifluoperazine). Dr. Reis noted that these medications were first administered to the veteran in August 1967. Dr. Reis stated that the known side effects of Thorazine were obesity, Type II diabetes, hyperlipidemia and all of the secondary diseases that appear after the antecedent diseases such as coronary heart disease and peripheral vascular disease. Dr. Reis noted that the veteran developed Type II diabetes, peripheral vascular disease, coronary artery disease and obesity. Dr. Reis concluded that there was a high probability that the veteran's Type II diabetes may have well been related to the early administration of anti-psychotic medications given while he was in a psychiatric hospital for the very first time in his life, during his service in the Army. The appellant submitted two articles regarding the correlation between antipsychotic medications and Type II diabetes. See Dan W. Haupt, M.D. and John W. Newcomer, M.D., Hyperglycemia and Antipsychotic Medications, Journal of Clinical Psychiatry (2001) (finding that Type II diabetes mellitus and impaired glucose tolerance are associated with antipsychotic treatment, with the largest number of reports for chlorpromazine, clozapine and olanzapine); Sabina Abidi, Sreenivasa M. Bhaskara, From Chlorpromazine to Clozapine- Antipsychotic Adverse Effects and the Clinician's Dilemma, Journal of Clinical Psychiatry (2003) (finding that atypical antipsychotics can compound a patient's risk for developing cardiac complications). Analysis In order to establish service connection for the cause of the veteran's death, the evidence must show that a disability incurred in or aggravated by active service was the principal or contributory cause of death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a). In order to constitute the principal cause of death, the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to be a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially to cause death, or that there was a causal relationship between the service-connected disability and the veteran's death. 38 C.F.R. § 3.312(c)(1). Service-connected diseases or injuries affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other diseases or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. 38 C.F.R. § 3.312(c)(2)-(3). To be a contributory cause of death, it is not sufficient to show that it casually shared in producing death, but rather is must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. 38 C.F.R. § 3.303(d). As noted above, the death certificate shows that the veteran died of diabetic cardiomyopathy due to or as a likely consequence of diabetes mellitus. The records also contains competent evidence that diabetes mellitus was due to the early administration of anti-psychotic medications, such as Thorazine (chlorpromazine), given while the veteran was in a psychiatric hospital during his service in the Army. Dr. Reis is a physician who is presumably competent to offer this opinion. Articles submitted by the appellant also support a connection between the antipsychotic medications administered to the veteran and his fatal diseases. Therefore, resolving reasonable doubt in the appellant's favor, the criteria for service connection for the cause of the veteran's death are met, and the appeal is granted. II. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002). DIC benefits are also payable under certain circumstances if the veteran was in receipt of, or entitled to receive, compensation at the time of death for a service-connected disability that had been totally disabling for a specified period of time. DIC benefits granted to a surviving spouse under 38 U.S.C.A. § 1318 would be paid "in the same manner as if the veteran's death were service connected." 38 U.S.C.A. § 1318(a). The Board's grant of service connection for the cause of the veteran's death already recognizes that the death of the veteran was the proximate result of a disease or injury incurred in service. The United States Court of Appeals for Veterans Claims (Court) indicated that, only if an appellant's claim for service connection for the cause of the veteran's death is denied under 38 U.S.C.A. § 1310, does VA have to also consider an appellant's DIC claim under the provisions of 38 U.S.C. § 1318. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In light of the grant of service connection for the cause of the veteran's death, the claim of entitlement to DIC under 38 U.S.C. § 1318 is moot, and this aspect of the appellant's claim is dismissed. III. CUE for purposes of accrued benefits. In a pre-induction report of medical history completed by the veteran in December 1966, the veteran reported that he had, or had had, frequent or severe headaches, dizziness or fainting spells, night sweats, shortness of breath, frequent trouble sleeping, frequent or terrifying nightmares, and depression or excessive worry; among other symptoms. On pre- induction examination in December 1966 it was indicated that the veteran was not neurologically or psychiatrically normal, but no specific abnormality was reported. In August 1967 the veteran underwent a Medical Board evaluation. The diagnosis was schizophrenic reaction, paranoid, chronic, severe. The Medical Board determined that "in view of the veteran's chronic difficulties in relating to other people, his chronic school difficulties, his admitted auditory hallucinations and paranoid delusions prior to active duty, his admitted chronic, and excessive use of alcohol prior to active duty, his admitted drug abuse prior to active duty, and his chronic periods of anxiousness and depression prior to active duty, and his relatively brief tour on active duty, this illness was considered EPTS (existed prior to service). The Medical Board determined that the veteran was permanently unfit for further military service. In its February 1968 decision, the RO found that the veteran had a personality disorder that preexisted service, which was not aggravated by the short period of active duty. In its August 1979 decision, the RO determined that no change was warranted in the previous denial of service connection for the veteran's nervous condition. In a January 2003 letter, Dr. Alan Reis stated that there was no prior history and no evidence of psychiatric disturbance prior to his military enlistment. He concluded that the veteran's psychiatric disturbances directly relate and have their origin in his service as he was well before he entered the Army. In an August 2005 later, Dr. Reis again stated that that the veteran did not have a psychiatric condition prior to service. Analysis A claim for death pension, compensation, or dependency and indemnity compensation, by a surviving spouse is deemed to include a claim for any accrued benefits. 38 C.F.R. § 3.1000(c) (2007); see 38 C.F.R. § 3.152(b) (2007). The claim for accrued benefits is separate from the claim for service connection filed by the veteran prior to his death, the accrued benefits claims is derivative of the veteran's claim and the appellant takes the veteran's claim as it stood on the date of his death. Jones v. West, 146 F.3d 1296 (Fed. Cir. 1998); Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). The law applicable to accrued benefits provides that certain individuals may be paid periodic monetary benefits to which the veteran was entitled at the time of his death under existing ratings or based on evidence in the file at the time of his death. 38 U.S.C.A. § 5121(a); 38 C.F.R. § 3.1000. At the time of the veteran's death, he had a pending claim that there was CUE in a February 1968 decision that denied entitlement to service connection for schizophrenia. The veteran appealed to the Board. In a September 2004 decision, the Board reopened the veteran's claim and remanded the issue for additional development. The Board found that the issue of CUE in February 1968 decision which denied service connection for a schizophrenic reaction was inextricably intertwined with the reopened claim for service connection. In an October 2004 rating decision, the RO found that no revision was warranted in the decision to deny compensation for schizophrenic reaction, paranoid type. The veteran died on December [redacted], 2004. The appellant filed a claim for accrued benefits in January 2005. The RO denied the claim for accrued benefits in June 2005. The Board issued a decision on the veteran's claim in November 2005 which dismissed the veteran's claim as a result of his death. The appellant filed a timely claim for accrued benefits. Thus, the Board must adjudicate the issues pending at the time of the veteran's death for purpose of accrued benefits. However, the applicable regulation permits the Board to address only the evidence of record that was associated with his claims folder at the time of his death. 38 C.F.R. § 3.1000. The evidence that will be discussed below is therefore limited only to that which was part of the veteran's file up to the date of his death in December 2004. The Court has established a three-pronged test, each of which must be met before clear and unmistakable error is established: (1)...the correct facts, as they were known at the time, were not before the adjudicator (i.e. more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE [clear and unmistakable error] must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992). In Caffrey v. Brown, 6 Vet. App. 377 (1994), the majority of the court held that failure on the part of VA to comply with its duty to assist veterans with the development of their claims could never constitute clear and unmistakable error. The Court reached this conclusion on the basis that such a failure creates only an incomplete record, not one which is inaccurate. Caffrey, 6 Vet. App. at 383. The United States Court of Appeals for the Federal Circuit has held that in order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). As an initial step a claimant asserting clear and unmistakable error must specify the error. It is not enough to merely assert that there was clear and unmistakable error, to make broad-brush allegations of such error, or to assert that the evidence was improperly weighed and evaluated. Rather, the claim must be raised with some degree of specificity. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). As noted above, the appellant has alleged that there is error as the medical evidence shows that since his discharge from service, the veteran had not been able to work due to his psychiatric disability and that he should have been afforded the presumption of soundness under 38 C.F.R. § 1111 as his entrance examination revealed no psychiatric problems. Under the statute in effect at the time of the 1968 rating decision on appeal, every veteran would have been taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, or enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and was not aggravated by such service. 38 U.S.C.A. § 1111 (formerly 38 U.S.C.A. § 311). VA had attempted to implement 38 C.F.R. § 3.304(b), which provided that the presumption of soundness could be provided with clear and unmistakable evidence that the disability existed prior to service. The regulation did not require clear and unmistakable evidence as to aggravation. 38 C.F.R. § 3.304(b) (2004). The provisions of 38 C.F.R. § 3.304(b) were subsequently invalidated, because they did not include the statutory requirement that there be clear and unmistakable evidence that the pre-existing disability was not aggravated in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The appellant's attorney asserts that the February 1968 rating decision clearly and unmistakably failed to properly apply both "prongs" of the post-Wagner presumption-of- soundness test; first, in that the rating decision failed to show that the veteran's psychiatric disorder clearly and unmistakably preexisted military service, and second that the rating decision failed to clearly and unmistakably show the veteran's preexisting psychiatric disorder was not permanently aggravated by military service. The Board notes, however, that prior to the Federal Circuit's Wagner decision in 2004, VA was required to show only clear and unmistakable evidence of a pre-existing condition to overcome the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 245 (1994). In Kent v. Nicholson, 20 Vet. App 1 (2006), the Court held that the Federal Circuit's decision in Wagner represented a procedural change in the law rather than a substantive change, and that the Wagner decision did not provide a new basis for establishing entitlement to benefits that would warrant adjudicating de novo a previously-denied claim for service connection. See also Routen v. West, 142 F.3d 1434, 1439-41 (Fed. Cir. 1988), holding that a change in the law that raised the evidentiary burden required of VA to rebut the statutory presumption of aggravation was procedural, not substantive, in nature. It is also well established that CUE is based on the law as it existed at the time of the challenged decision. Russell. The application of a subsequently invalidated regulation cannot serve as the basis for finding CUE. VAOPGCPREC 9-94 (1994). As such, Wagner cannot be retroactively applied to find CUE in the February 1968 decision. Accordingly, any inconsistency with Wagner in and of itself does not constitute CUE in the 1968 and 1979 rating decisions under review. Essential to the argument of the appellant is the premise that the February 1968 rating decision erred by relying on the report of an Army medical board, which was itself allegedly flawed in that it had based its finding of EPTS on the unsubstantiated history of the veteran himself. On review, the Board concludes that the veteran's argument is nothing more than a disagreement as to the weighing of the facts of record at the time of the 1968 rating decision, which is not a valid basis for finding CUE. The November 1968 rating decision discussed at length the fact that an Army medical review board had examined the veteran and had determined that the veteran's schizophrenic condition pre-existed military service. In this case, the veteran has not met his burden to show that the RO's reliance on the findings of the service medical examination was not consistent with the record and law that existed at the time of the adjudication in question. To the extent that the it is now asserted that the evidence relied on by the RO was legally insufficient to support the determination of a pre-existing condition, the Board notes that evidence is said to be insufficient in law only in those cases where there is a total absence of such proof, either as to its quality or kind, as in the particular case some rule of law requires as essential to the establishment of the fact. Waltzer v. Nicholson, 447 F.3d 1378 (Fed. Cir. 2006), citing Metro. R.R. Co. v. Moore, 121 U.S. 558, 569 (1887). In this case, the record does not show, and the veteran does not contend, that there was a "total absence of proof" supporting the 1968 rating decision under review. Moreover, the RO's February 1968 conclusion that the veteran's schizophrenic condition existed prior to service, which the appellant argues is improper to the extent that the RO stated that the pre-existing schizophrenic reaction was not aggravated by active duty, cannot be said to have been undebatably erroneous. Again, the appellant's argument essentially represents a disagreement as to how the facts were weighed or evaluated. That is to say, because the veteran was not diagnosed as having schizophrenia at service entry, the appellant alleges that the RO erred by failing to presume him sound for purposes of this disability. In other words, the basis of this argument is that the RO came to the wrong conclusion based on the facts that were before it in February 1968 as to a psychiatric disorder pre-existing service. This amounts to a mere disagreement as to how the RO evaluated the facts and is thus an inadequate basis on which to find CUE in the RO's 1968 decision. See Russell, supra. The appellant and her representative submitted medical evidence from Dr. Reis to the effect that the veteran's psychiatric condition did not pre-exist service and was incurred during the veteran's active duty. This is presumably in an effort to demonstrate through medical evidence that the RO's determination in 1968 was in error. However, such submissions cannot be considered in this appeal any more than the opinion of the May 1967 Medical Board that the veteran's current schizophrenic reaction existed prior to service. This is so because this evidence was not before the RO in 1968 and may not be considered with respect to this CUE claim. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993) (subsequently developed evidence may not be considered in determining whether error existed in the prior decision). Under these circumstances, the Board finds that the veteran has simply not established, without debate, that the correct facts, as they were then known, were not before the RO, or that the RO ignored or incorrectly applied the statutory and regulatory provisions applicable at the time, and than, but for the alleged error, the outcome would have been different. The Board accordingly finds that the February 1968 rating decisions that denied service connection for schizophrenia did not contain CUE. The benefit-of-the-doubt doctrine is not applicable as to claims for CUE. See, e.g., 38 C.F.R. § 20.1411 (a) and (b). Reopened Claim The veteran's reopened claim for service connection was pending at the time of his death. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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. 38 C.F.R. § 3.303(d). A chronic disease, such as a psychosis becoming manifest to a degree of 10 percent or more within one year of separation from service will be considered to have been incurred in service even though there is no record of such disease during service. 38 U.S.C.A. § 1112 (West 2002). As just discussed, the record contains a large amount of evidence that the veteran had a pre-existing psychiatric condition. The record shows, however, that the veteran had his initial need for psychiatric hospitalization during service. Dr. Reiss described this episode as a psychiatric break. The report of in-service hospitalization shows that the veteran was found to be totally disabled during the in- service hospitalization. Not surprisingly, the veteran was also found unfit for service. Accordingly the evidence is not clear and unmistakable that the disability was not aggravated in service. 38 C.F.R. § 3.304(b) (2007). Applying current law, the presumption of soundness is not rebutted. Dr. Reiss' January 2003 letter serves to link the current psychiatric disability, diagnosed as schizoaffective disorder, to the psychiatric symptomatology identified in service. The record also indicates that the veteran had ongoing psychiatric symptomatology since his hospitalization in service. There is no competent opinion contrary to that of Dr. Reiss. The evidence of record at the time of the veteran's death favors the grant of service connection for the variously described psychiatric disability. ORDER Entitlement to service connection for the cause of the veteran's death is granted. Entitlement to dependency and indemnity compensation (DIC) benefits under the provisions of 38 U.S.C.A. § 1318 (West 2002) is dismissed. The February 1968 decision that denied entitlement to service connection for schizophrenia was not the product of CUE, the claim for accrued benefits on the basis of CUE in that decision is denied. Entitlement to service connection for a psychiatric disability, namely schizoaffective disorder for purposes of accrued benefits is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs