Citation Nr: 1035525 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 08-17 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1976 to February 1977. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia (RO). FINDINGS OF FACT 1. The Veteran's claim for service connection for a psychiatric disorder was last denied in a June 1990 RO decision, and no appeal was initiated from that decision. 2. In July 2006, additional service personnel records were retrieved by the RO from the National Personnel Records Center (NPRC). These records existed at the time of the RO's June 1990 denial of the Veteran's claim seeking service connection for a psychiatric disorder, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. 3. The evidence of record shows that the Veteran's current psychiatric disorder, to include schizophrenia, is related to his active military service. CONCLUSIONS OF LAW 1. The criteria for reconsidering the Veteran's claim seeking service connection for a psychiatric disorder, to include schizophrenia, have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2009). 2. Paranoid schizophrenia was incurred in active military service. 38 U.S.C.A. § 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. New and Material Evidence An unappealed Board decision in August 1982 denied the Veteran's claim of entitlement to service connection for a psychiatric disability on the basis that a psychiatric disability was not demonstrated during service. Subsequently an unappealed RO decision in June 1990 denied the Veteran's claim to reopen the issue of entitlement to service connection for a psychiatric disability on the basis that new and material evidence had not been submitted. Although notified of this decision by the RO in June 1990, the Veteran did not file an appeal of this issue, and the RO's June 1990 decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200 (2009). In April 2006, the Veteran filed his present claim to reopen his claim seeking entitlement to service connection for a psychiatric disorder, to include schizophrenia. The RO denied reopening the Veteran's claim by a January 2007 rating decision. Thereafter, the Veteran perfected an appeal of this decision. A finally decided claim may be reopened if the claimant presents new and material evidence with respect to a claim which has been previously denied and which is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. If the claim is so reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). "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). In addition to new and material evidence, recently revised 38 C.F.R. § 3.156(c), effective on or after October 6, 2006, provides that at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Further, 38 C.F.R. § 3.156(c)(i)(3) provides that an award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. In this case, the RO denied the claim on the merits, without first deciding whether new and material evidence had been presented to reopen, or official service department records have been submitted to reconsider, the claim of entitlement to service connection for a psychiatric disorder, to include schizophrenia. Such a determination, however, is not binding on the Board, and the Board must first decide whether new and material evidence has been received to reopen the claim. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As noted above, since the last final denial, additional service personnel records have been retrieved by the RO from the NPRC in July 2006. These records existed at the time of the RO's June 1990 denial of the Veteran's claim seeking service connection for a psychiatric disorder, and the RO's inability to obtain these records at an earlier time was not due to the Veteran's failure to provide the RO with sufficient information. In addition, a February 1977 service personnel record provides evidence that the Veteran was recommended for discharge from the Naval service for the reason of unsuitability because of apathy and defective attitudes, with a Commandant's opinion that discharge was recommended due to the severity of the Veteran's personality disorder. Accordingly, these records constitute relevant service department records that existed, but were not of record, at the time of the initial adjudication. As such, the Veteran's original claim of entitlement to service connection for a psychiatric disorder must be reconsidered. 38 C.F.R. § 3.156(c). Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In addition, 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). The Veteran is seeking service connection for a psychiatric disorder, to include schizophrenia. He claims that the onset of this condition was in service while stationed in a training vessel, USS LEXINGTON. Specifically, the Veteran claims that he first started hearing a voice when he was placed in the Chief Quarters, which he called "the hole," in darkness for hours, with only small emergency lights and the air conditioning cut off, during battle stations. During his July 2010 hearing before the Board, the Veteran testified that after that incident, there were many battle stations, during which time he was stationed in the hole and he was hearing voices all the time. The Veteran also testified that he started drinking heavily and went on absence without leave (AWOL) on multiple occasions to avoid hearing voices. Historically, the Veteran served in the Navy from May 1976 to February 1977. His service personnel records show that he was stationed in the USS LEXINGTON from September 1976 until his discharge in February 1977. They show that following a few AWOL episodes, the Veteran was recommended for a general discharge by reason of unsuitability because of apathy and defective attitudes. A February 1977 letter from the Veteran's Commandant stated "[i]t was the Commandant's opinion that, due to the severity of [the Veteran's] personality disorder, further retention would not have been in the best interests of the U.S. Navy." A former shipmate of the Veteran, Mr. C.K., stated in the Veteran's April 2006 claim that the Chief V. would station the Veteran in the Chief Quarters in darkness with only small emergency lights for an hour or two hours at a time. Mr. C.K. also stated that the Veteran repeatedly told his chief that there was someone down there talking to him, but the chief replied that it was only in the Veteran's head, at which time the Veteran became desperate and begged the chief not to make him go there anymore. The Veteran's service treatment records are negative for any diagnoses or findings of a psychiatric disorder. A March 1978 private hospital discharge report noted that the Veteran complained of increasing difficulty in organizing his thinking. Subsequent psychiatric examination revealed what appeared to be a "schizophreniform disorder." The Veteran signed out against medical advice before a full psychiatric workup could be completed. The final diagnosis was acute schizophrenic episode. In May 1978, the Veteran was admitted to a private hospital with a voluntary application as an inebriate. He reported that he had been drinking heavily and the diagnostic impression was alcohol abuse. He stated that he was started on a detoxification treatment in April 1978. The Veteran was again hospitalized in a private hospital in November 1978 on drug abuse. The treating physician stated "[the Veteran] probably could be given the diagnosis of schizoid personality, but he had no testing while he was here, was extremely guarded and unwilling to discuss himself. The picture was somewhat clouded by his abuse of drugs and I think probably we are justified in saying that he is a drug abuser by history and presentation, and that will be his discharge diagnosis." The final diagnoses were acute and chronic alcoholism and situational adjustment of adult life. A June 1979 private hospital discharge report stated that the Veteran was brought to the emergency room after a suicide attempt. The final diagnoses were suicide attempt and personality disorder. The Veteran was admitted to a VA Medical Center for nearly three months from June 1980 to September 1980, for acute and chronic alcoholism and anxiety neurosis. After the Veteran was detoxified in about four days the Veteran remained depressed. The VA physician stated that the Veteran was well known to the physician and that chronic anxiety and depression were the Veteran's constant features, which peaked in a crisis situation, with suicidal ideation. It was also noted that the only way the Veteran was known to deal with any kind of stress was by drinking. In a September 2005 VA psychiatry consultation report, the Veteran was seen for evaluation for depression. It was noted that the Veteran had a history of schizophrenia, paranoid type, since early twenties, and he admitted to hearing voices. The diagnostic assessment was schizophrenia, paranoid type. An addendum to this report stated that the Veteran had been hospitalized in the psychiatric units previously, but did not remember when or where. Subsequent VA psychiatry treatment records reflect that schizophrenia, paranoid type, was consistently diagnosed. In a March 2006 VA psychiatry report, the Veteran denied use of any alcohol or drug. After reviewing the evidence of record, the Board finds that the Veteran currently has a psychiatric disorder, which was incurred during his active military service. 38 U.S.C.A. § 5107(b). There is currently diagnosed paranoid schizophrenia. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Furthermore, while the Board's review of the Veteran's service treatment records fails to show inservice diagnosis or treatment for schizophrenia, the Veteran's lay statements that his psychiatric symptoms began during military service are competent evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board further finds that the Veteran's testimony and reports of inservice symptoms of hearing voices are credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). The Veteran testified at a Board hearing in July 2010, that he started hearing voices when he was first stationed in the Chief Quarters during battle stations, while aboard USS LEXINGTON. To that effect, a former shipmate's statements also attest to the facts that the Veteran was placed in the Chief Quarters in darkness for hours and that the Veteran repeatedly reported to his chief that there was someone down there talking to him. The Veteran testified during the Board hearing that he started drinking heavily to avoid hearing voices and went on AWOL after he repeatedly requested not to be placed in the Chief Quarters to no avail. The circumstances surrounding the Veteran's discharge as shown by service personnel records are consistent with his testimony. They show that there were a few occasions where the Veteran was on AWOL and then he was recommended for a discharge by reason of unsuitability because of apathy and defective attitudes. The Veteran was given a general discharge in February 1977, based on the Veteran's Commandant's opinion that "due to the severity of the Veteran's personality disorder, further retention would not have been in the best interests of the U.S. Navy." Moreover, the medical evidence of record shows that an acute schizophrenic episode was diagnosed as early as in March 1978, approximately a year after his discharge from service. See 38 U.S.C.A. §§ 1111, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). The medical evidence of record reflects that the Veteran has been treated for psychiatric symptoms ever since separation from his military service. Thus, continuity of symptomatology of a psychiatric disorder, to include schizophrenia, is established in this case. Based on the totality of the evidence, and with application of the benefit of the doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran currently has paranoid schizophrenia, which was incurred during his active military service. Accordingly, service connection for paranoid schizophrenia is warranted. ORDER Reconsideration of the Veteran's original claim of entitlement to service connection for a psychiatric disorder is warranted, and the appeal is granted to that extent. Service connection for paranoid schizophrenia is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs