Citation Nr: 1011973 Decision Date: 03/31/10 Archive Date: 04/07/10 DOCKET NO. 08-30 080 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The Veteran served on active duty from December 5, 1977 to January 18, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs Regional Office in Honolulu, Hawaii. In January 2010, the Veteran testified in a videoconference Board hearing before the undersigned, a transcript of which is included in the record. FINDINGS OF FACT 1. In July 2003, the Board denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD. Following an appeal to the Court, the Board's decision was affirmed by the Court in June 2005. An appeal of the denial of service connection was not received within one year. 2. Evidence received since the July 2003 decision that pertains to the Veteran's claim for an acquired psychiatric disorder is new and material. 3. The competent evidence, overall, demonstrates that the Veteran's acquired psychiatric disorder was not incurred, the result of, or aggravated by active duty. CONCLUSIONS OF LAW 1. The July 2003 Board decision that denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder to include schizophrenia and PTSD is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2009). 2. New and material evidence to reopen a claim for service connection for an acquired psychiatric disorder has been submitted and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2009). 3. Service connection for an acquired psychiatric disorder is not established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder to include schizophrenia and PTSD in a July 2003 decision. The Veteran appealed the Board's decision, which the Court affirmed in June 2005. The Veteran did not appeal the Court's affirmance. Therefore, that Board decision is final. 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). The Veteran filed her current petition to reopen in November 2006. For claims filed on or after August 29, 2001, "new" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with 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). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board must assess the new and material evidence in the context of the other evidence of record and make new factual determinations. See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet. App. 210, 215 (1991)). A finding of "new and material" evidence does not mean that the case will be allowed, just that the case will be reopened and new evidence considered in the context of all other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet. App. 178, 179-80 (1991). The Veteran asserts that she suffers from schizophrenia due to her time on active duty. The Board denied the claim in July 2003, citing that the evidence clearly showed the existence of a psychiatric disorder prior to service, with no evidence of aggravation due to service. The Veteran appealed the decision, which the Court affirmed in June 2005. The Veteran did not further appeal the denial, and it is therefore final. Evidence of record since the Board's July 2003 decision includes lay statements from the Veteran and a February 2010 treatment letter from "G.K.", a licensed clinical social worker. The lay statements merely reiterate the Veteran's earlier claims that being given an erroneous RE-3C reenlistment code on her separation papers aggravated her existing paranoid schizophrenia. The opinion letter from G.K. discusses the impact of the nature of the Veteran's discharge from service on her mental health. Under the requirements stated above for reopening claims, the opinion letter is considered "new" and, arguably, material evidence (the standard for reopening claims is low). The claim for service connection for an acquired psychiatric disorder is therefore reopened. The Board has considered whether adjudicating this claim on a de novo basis at this time would prejudice the appellant. This issue was addressed by the Court in Sutton v. Brown, 9 Vet. App. 553 (1996). In Sutton, the Court stated, in pertinent part: Although the veteran may have argued the merits of his claim before the Board, reviewed the [independent medical opinion], submitted additional evidence in rebuttal, and stated that he had nothing further to present, the Board was nevertheless required under Bernard, to ask the veteran if he objected to Board adjudication in the first instance. [citations omitted]. Alternatively, failing to make that inquiry of the veteran, the [Board] decision should, under Bernard, have explained, as part of its statement of reasons or bases, why there was no prejudice to the veteran from its adjudication of the claim on the merits without first remanding the matter to the RO. Id. at 565. Under Bernard v. Brown, 4 Vet. App. 384, 393 (1993), the Board must determine if the appellant has been given both adequate notice of the need to submit evidence or argument and to address that question at a hearing, and whether, if such notice has not been provided, the appellant has been prejudiced thereby. In this case, over the years of this claim and others, the appellant has been provided with pertinent laws and regulations regarding service connection. She has been given the opportunity to review the evidence of record and submit arguments in support of her claim. The appellant's arguments have focused squarely on the issue of service connection, not whether new and material evidence has been submitted. Therefore, the Board can proceed with this claim without prejudice to the Veteran. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). In general, service connection 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, including psychoses, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran claims that her current psychiatric problems were aggravated by her brief time in service, particularly the nature of her discharge from service. The first requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Evidence submitted includes VA, Vet Center, and private treatment records. These records chronicle a history of mental illness, including schizophrenia. Based on this evidence, the first requirement of a current disability is fulfilled. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). Mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition); see also Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) A pre-existing injury or disease will be considered to have been aggravated by active 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 natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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. 38 C.F.R. § 3.306(b). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). The evidence, including service personnel records (SPRs) and service treatment records (STRs), indicates that the Veteran's psychiatric disorder was not noted on her August 1977 entrance examination. The evidence shows a complaint of and evaluation for excessive anxiety at the enlistment examination, yet none was found. She is therefore to be presumed sound, with the burden on VA to rebut the presumption by clear and unmistakable evidence that the psychiatric disorder pre-existed service and was not aggravated by service. However, a March 1978 statement by Dr. "K." discloses a history of treatment and diagnosis for mental illness prior to the Veteran's entrance to service in December 1977. Such evidence, the Board finds, provides clear and unmistakable evidence that the psychiatric disorder existed prior to service. The VA must also show by clear and unmistakable evidence that the Veteran's psychiatric disorder was not aggravated by service. As stated above, 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 manifestations of the disability prior to, during, and subsequent to service. A January 1978 document showing the Veteran's acknowledgement of physical qualification for separation showed no report of illness suffered while on active duty, providing clear evidence against this claim. The Veteran served on active duty from December 5, 1977 to January 18, 1978. As noted in the Board's July 2003 decision, a March 1978 statement from Dr. K. indicated that he first saw the Veteran in the summer of 1977 and again in January 1978 for several sessions each time. The records revealed a severe emotional problem since childhood and a diagnosis of chronic undifferentiated schizophrenic reaction. The evidence indicates that Dr. K. treated the Veteran four more times in 1990s with similar findings. The Veteran then sought treatment from Dr. "C." from June 1991 through 1994, with a diagnosis of organic mental disorder, not otherwise specified. The treatment records indicate that the Veteran was preoccupied by her experience in the military. The Veteran was afforded a VA psychiatric examination in March 1997, during which she complained that her discharge made her feel that the world was against her. The Veteran contended that the nature of her discharge worsened her condition because it validated her delusion that she was in some way involved with a soldier from another galaxy. The examiner diagnosed paranoid schizophrenia and schizotypal and schizoid personality disorder, finding that the Veteran appeared to have had a lifelong condition that was somewhat exacerbated by a motorcycle accident at age 14. In a November 2002 VA psychiatric examination, the Veteran gave the same history of lifelong psychiatric issues and head injury in the motorcycle accident. The Veteran again claimed that she was treated unfairly when given an erroneous re- enlistment code at separation which caused her anxiety because she did not know if she had done anything to warrant it. The examiner diagnosed paranoid schizophrenia and schizotypal and schizoid personality disorder, noting that the Veteran had been diagnosed with psychosis both before and after service. In a December 2002 addendum, the examiner noted that the Veteran's pre-existing illness of paranoid schizophrenia was not aggravated in service, providing highly probative evidence against this claim. A February 2010 letter from social worker G.K. indicates treatment of the Veteran since October 2007. G.K. noted that the Veteran has "perseverated on the status of her discharge and marks that time as the beginning of her mental health issues" and that the Veteran has "expressed layers of delusional beliefs and resentments toward the military and the larger federal government." The Veteran had also expressed considerable resentment toward two previous treating providers who were former military, whose careers the Veteran discredits. Considering the evidence of record, the Board continues to find no increase in psychiatric disability in service. As noted in the July 2003 decision, the STRs reflect no finding of a psychiatric disorder, and both the March 1997 and November 2002 VA examiners found no evidence of psychiatric disorder or increase thereof in service. The new opinion letter from social worker G.K. offers no further indication that the Veteran's brief time in service aggravated her psychiatric disorder. Simply stated, the Board finds that the post-service treatment records and the service records provide evidence against this claim, indicating that any psychiatric disorder pre-existed service and was clearly and unmistakably not aggravated by service. Post-service treatment records relating her problem to events outside of service (the accident) provide clear and unmistakably support for this finding. With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). 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). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In the present case, to the extent that the Veteran is able to observe continuity of psychiatric symptoms since service, her opinions are outweighed by the lack of pertinent findings of chronic disability in service, the lack of pertinent findings after service, and the lack of any medical opinion linking or indicating a link to service. Once again, the Board notes that the Veteran acknowledges that she was discharged from service for reasons other than psychiatric disability. As noted in the July 2003 decision, VA law and regulations provide for a determination of aggravation when there is evidence of increase in disability during service, though the Veteran has clearly argued that she experienced an increase in anxiety and stress after service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to notify and to assist When addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in January 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO obtained VA treatment records and the Veteran provided a private opinion letter. In this regard, the Board has noted that the Veteran is in recent of Social Security disability. However, at a hearing held before the Board, the appellant clearly indicated that these records have been "destroyed" by SSA. Transcript at page 12. This issue was fully addressed by the Board at hearing. The Board finds no rational basis to remand this case for SSA records that have been "destroy", particularly in the facts of this case where the question is not whether the Veteran has a disability but whether the disability began or was aggravated during a one month period of service many years ago. On a factual basis, the Board finds that remanding this case for SSA records that have clearly been destroyed and would not provide a basis to grant this claim serves no purpose. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a new VA examination would not offer any basis for granting this claim. Two previous VA psychiatric examinations have provided all possible evidence that could be used to support this claim, and a new examination would not offer new information in support of the claim. The new evidence submitted does not provide a basis to obtain another examination. In this regard, the "new" evidence only cites the Veteran's belief that her problem can be traced back to her service, while the factual evidence in this case clearly and unmistakably supports another conclusion. The new evidence, if fact, cites to the appellant's "delusional beliefs" in this regard, in a way providing more evidence against this claim. The appellant and her representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced her in the adjudication of her appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board has decided upon the merits of the appellant's appeal. ORDER The appeal to reopen a claim of service connection for an acquired psychiatric disorder to include schizophrenia is granted. Service connection for an acquired psychiatric disorder to include schizophrenia is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs