Citation Nr: 1040962 Decision Date: 11/01/10 Archive Date: 11/12/10 DOCKET NO. 04-05 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence had been presented to reopen a claim of entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD N. L. Rippel INTRODUCTION The Veteran served on active duty from August 1979 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas, which denied the benefit sought on appeal. Entitlement to service connection for a nervous disorder was most recently denied in a February 1994 rating decision. That decision is final in the absence of a perfected appeal. 38 U.S.C.A. § 7105 (West 2002). Thus, regardless of any RO action, the current claim may be considered on the merits only if new and material evidence has been submitted since that February 1994 decision. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2003); Barnett v. Brown, 83 F.3d 1380 (Fed.Cir. 1996). This matter was previously before the Board and adjudicated in a decision dated in July 2009. In that decision, the Board held that new and material evidence had not been received to reopen the claim of entitlement to service connection for psychiatric disability now characterized as schizophrenia. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in February 2010, the Court granted a joint motion of the parties and remanded this matter to the Board for compliance with the instructions in the joint motion. The Board notes that the Veteran, through his attorney, submitted additional argument and records in September 2010, accompanied by a waiver of consideration of that evidence by the originating agency. A remand for initial consideration of the evidence by the originating agency is therefore not necessary. FINDINGS OF FACT 1. A February 1994 rating decision denied entitlement to service connection for an acquired psychiatric disorder, described as a nervous condition. In absence of a timely appeal, that decision is final. 2. The evidence submitted since the February 1994 rating decision, by itself, and when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for psychiatric disability now characterized as schizophrenia, and raises a reasonable possibility of substantiating the claim. 3. The evidence is in equipoise as to whether schizophrenia began during or is otherwise related to service and specifically as to whether schizophrenia manifested to a compensable degree within one year following discharge from active duty. CONCLUSIONS OF LAW 1. The February 1994 rating decision, which denied service connection for an acquired psychiatric disorder, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for schizophrenia. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010). 3. Schizophrenia was presumptively incurred during active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.384 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the Veteran has been provided sufficient notice, to include notice pertaining to the disability-rating and effective-date elements of his claims. In addition, the evidence currently of record is sufficient to establish that new and material evidence has been presented, as well as his entitlement to service connection for schizophrenia. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), or 38 C.F.R. § 3.159 (2010). Legal Criteria a. New and material evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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 determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). b. Service connection In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in- service incurrence 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 Gutierrez v. Principi 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection will also be presumed for certain chronic diseases, including psychoses, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The term "psychosis" includes schizophrenia. See 38 C.F.R. § 3.384. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). Analysis a. New and material evidence In a February 1994 rating decision, entitlement to service connection for psychiatric disability was denied. The RO held that new and material evidence had not been presented to reopen the claim previously denied by the Board in July 1982. The basis of the Board denial, and the continued denial by the RO in 1994, was that there was no showing of a psychiatric disability in service and the current records failed to show a psychiatric disability that could be related to service. The Veteran did not perfect an appeal. Hence, the February 1994 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In October 2002, the Veteran requested to reopen his claim. Evidence of record at the time of the February 1994 decision included service treatment records, select personnel records, statements provided by the Veteran, and VA medical records. VA treatment records overwhelmingly showed treatment for substance abuse. The Veteran reported in a 1981 statement that he was disturbed by events in service and tried to hang himself shortly after service separation. He alleged that he reported having no problems in his separation examination report in order to quickly get out of the service, and get care for his problems at home. Evidence received since the final February 1994 decision includes VA records, which show continued treatment for substance abuse along with a diagnosis of schizophrenia beginning in September 2003. In addition, a record from Caritas Carney Hospital received in July 2010, shows treatment for an attempted suicide by hanging in July 1980. This record reflects that the Veteran attempted to hang himself. He reported to medical personnel that he had not been able to get work since service discharge in March 1980. He reported being discharged from the service due to "trouble with a sergeant." He was tearful during the interview and denied plans to hang himself but in the past had considered other means such as guns and substance abuse. He reported that he had just moved out of an apartment due to non-payment. He had been unable to get his GED. Mental status examination revealed thought content to be very obsessional and self referential. The assessment/diagnosis was psychotic depression. Suicide precautions were taken and the Veteran was subsequently transferred to the Boston VA Medical Center. Also of record, submitted by the Veteran's attorney, is a psychological evaluation authored by psychologist Jonathan Mangold, Ph.D., dated in March 2010. This evaluation contains Dr. Mangold's opinion that the Veteran's documented disciplinary difficulties in service represented the prodromal phase of schizophrenia, and that the Veteran became floridly psychotic within months of discharge from service, as documented by the suicide attempt and associated behaviors in July 1980. Dr. Mangold opined that the appellant continued to suffer from schizophrenia, a form of psychosis. This evidence is new as it was not previously considered. The Board also finds this evidence material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. That is, it suggests a causal relationship between a currently confirmed diagnosis of schizophrenia, and service. Accordingly, the claim is reopened. b. Service connection The Veteran contends that service connection for schizophrenia is warranted. He essentially argues that he had symptoms of schizophrenia during service representing the onset of disability. He also urges that the aforementioned suicide attempt in July 1980 represents a florid episode of schizophrenia, and the condition has been ongoing since that time. Service personnel records reflect that the Veteran encountered disciplinary problems during his relatively short period of service. He was discharged after eight months of a three year enlistment under honorable conditions under an expeditious discharge program. The personnel record is replete with reference to the Veteran's disorderly conduct and inappropriate military bearing. In a February 1980 counseling report he was quoted as saying his oath of enlistment and the Army meant nothing to him. He was told to shape up or face the consequences. He was recommended for a Chapter 5 discharge based on his disciplinary problems as evidenced by his two article 15's. He was discharged the following month. His service treatment records show no complaints or findings of mental health problems. Thereafter, the Veteran was hospitalized at Carney Hospital and then VA Medical Center Boston for the July 1980 suicide attempt. He filed his original claim in August 1980. VA examination in December 1980 revealed the examiner's opinion that the Veteran was contented in his post-service life. The Veteran reported he had been harassed by a sergeant in service. The examiner felt it would not be fair to label the Veteran with a character disorder based on this one examination. Thus, the diagnosis was no neuropsychiatric disease. The Veteran stated in October 1981 that he had told examiners in service that he was well in order to get out of service quickly. He tried to commit suicide in July 1980 because his nerves were 'acting up.' From April 1987 through July 1993, the Veteran had multiple VA hospitalizations for substance and alcohol abuse. Lay statements from the Veteran's sister, uncle, mother and employer are dated from July to November 2002. These allege that the Veteran's behavior dramatically worsened immediately upon his discharge from service. They attested to his bizarre behaviors such as talking to an imaginary person and other unusual behaviors. He was described as eating dog food, running through the woods at night, not knowing where he was when he awakened, sleeping in dumpsters, and being disorderly and dangerous. VA treatment records include diagnoses of schizophrenia dating from September 2003. The Veteran was afforded a VA examination in December 2008. The Veteran reported the aforementioned history. The examining psychologist reviewed the claims folder and examined the Veteran. The diagnosis was schizophrenia, paranoid type. The examiner opined that the duration of the illness was 25 years or so. In an addendum dated in January 2009, the examiner opined that the Veteran's schizophrenia was less likely than not caused or exacerbated by military service. In support of this opinion, the examiner noted that Veteran had not been diagnosed with any psychiatric disorder during service and was not diagnosed upon discharge. The examiner noted the post service suicide attempt and observed that there was nothing in the record at the time to indicate that this was service related. In his March 2010 evaluation, Dr. Mangold sets forth a detailed review of the previously discussed evidence. He disagreed with the November 2009 VA opinion, noting that everything he read with the exception of the December 1980 VA examination report, described the Veteran as floridly psychotic when he was discharged from the Army to the present time. He observed that the lay descriptions of the Veteran's family and employers supported this position. He noted that since discharge the Veteran has manifested poor functioning, a gross impairment of thought processes and communications, persistent delusions and hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, and intermittent inability to perform activities of daily living. He opined that the Veteran's disciplinary problems in service were because he was in the prodromal phase of schizophrenia, that he became floridly psychotic within months after discharge and continues to suffer schizophrenia at present. With respect to whether there is a valid diagnosis of schizophrenia linked to service or to the presumptive period following service, the Board notes that there are two opinions of record regarding the etiology of the Veteran's schizophrenia. While the VA examiner concluded that the Veteran's condition was not related to service, the private examiner found that the Veteran had schizophrenia linked to service. The Board finds both of these examinations to be thorough and well-supported with reference to the record. The Board does note however that, even in her negative opinion, the VA examiner suggested that the first manifestation of schizophrenia was the July 1980 suicide attempt. This event was within a year of service, and is thus supportive of service connection on a presumptive basis. Additionally, although the VA examiner found nothing in the record to suggest the July 1980 suicide attempt was service-related, the Carney Hospital record, obtained after the report was written, shows that the Veteran reported concerns as to having been harassed by a sergeant and an inability to work since service. In the Board's opinion, the medical opinion evidence supportive of the claim is at least in equipoise with that against the claim. In sum, the evidence of record contains medical evidence establishing a diagnosis of schizophrenia and credible medical opinion evidence that the disability was compensably disabling within a year of separation from service. As such, the Board will presume that schizophrenia was incurred in-service. Accordingly, the Board concludes that entitlement to service connection for schizophrenia is warranted. ORDER New and material evidence has been presented and the claim of entitlement to service connection for schizophrenia is reopened. Entitlement to service connection for schizophrenia is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs