Citation Nr: 1115205 Decision Date: 04/19/11 Archive Date: 05/04/11 DOCKET NO. 07-14 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from October 1984 to April 1985. This matter arises before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran's service connection claim on appeal was previously characterized as a claim of service connection for schizophrenia/bipolar disorder. However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. A review of the claims file shows that the Veteran has been variously diagnosed with several psychiatric disorders. The Board therefore finds that the Veteran's claim is not limited solely to schizophrenia/bipolar disorder. Instead, the claim is properly characterized broadly as a claim of service connection for an acquired psychiatric disorder. The Board obtained an independent medical expert (IME) opinion regarding the issue on appeal in February 2011. The appellant was provided with a copy of the opinion and allowed the appropriate amount of time for response. 38 C.F.R. § 20.903 (2010). The Veteran responded in March 2011 with additional argument and waived RO consideration of her statement. FINDINGS OF FACT 1. In its October 1995 rating decision, the RO denied the Veteran's claim because she was not diagnosed with a disability for which compensation may be established. The Veteran did not appeal this decision, and it became final. 2. Evidence received subsequent to the October 1995 rating decision relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's acquired psychiatric disorder pre-existed her entrance into active military service and increased in severity beyond its natural progression during active duty military service. CONCLUSIONS OF LAW 1. The October 1995 rating decision is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. § 3.104, 20.302, 20.1103 (1995). 2. New and material evidence has been submitted, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1100 (2010). 3. The Veteran's acquired psychiatric disorder existed prior to service but was aggravated beyond its natural progression by active military service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. The Board notes that the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is found to be reopened by way of the submission of new and material evidence and the Board is granting service connection for the claimed disorder on the merits, the Board notes that no further notification or assistance is necessary to develop facts pertinent to the claim at this time. New and Material Evidence The Veteran's current claim is one involving entitlement to service connection for an acquired psychiatric disorder. By way of background, the RO originally denied the Veteran service connection for a paranoid personality disorder in an October 1985 rating decision, finding the claim was not well grounded because she was only diagnosed with a character and behavioral disorder. The Veteran did not appeal this decision, and the decision became final. In August 2005, the Veteran filed a claim for a mental illness, schizophrenia, and bipolar disorder, essentially attempting to reopen her previously denied claim. In October 2006, the RO found that new and material evidence had not been submitted to reopen the Veteran's claim because the evidence submitted did not relate to an unestablished fact necessary to substantiate the claim. As a preliminary matter, the Board notes that the Veteran's current claim involves entitlement to service connection for an acquired psychiatric disorder. This claim is based upon the same factual basis as the Veteran's previous claim, which was denied by the October 1995 Board decision that became final. Thus, it is appropriate for the Board to consider the claim as a request to reopen the previously denied claim. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented. 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 denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2010). If evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening an appellant's claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). As noted above, the RO's October 1995 rating decision denied service connection for a paranoid personality disorder because the Veteran was diagnosed with paranoid personality, which is not a disability for which compensation may be established. Since the Veteran did not appeal, the decision became final. The evidence of record at the time of the October 1995 rating decision included the Veteran's service treatment records (STRs). Since the October 19995 rating decision, the Veteran submitted or the RO obtained several statements from the Veteran and a statement from her ex-husband, Social Security Administration records, VA treatment records, and private treatment records. She also underwent a VA compensation and pension examination in October 2006, and the Board obtained an IME opinion in February 2011. The Veteran's request to reopen her claim is based on this new evidence. The Board notes that the treatment records diagnosing the Veteran with psychiatric disorders, such as schizophrenia and bipolar disorder, were unavailable at the time of the RO's original 1995 decision and both the October 2006 compensation and pension examination and the February 2011 IME opinion provided evidence that the Veteran's disorder pre-existed military service but was aggravated therein. Therefore, the Board finds that this evidence is both new and material in that it has not been submitted before and raises a reasonable possibility of substantiating the claim. Thus, as no further notification or assistance is needed, the Board will decide the Veteran's claim on the merits. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2010). Service connection may also 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) (2010). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also, 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). The Veteran essentially contends that her acquired psychiatric disorder had its onset during her period of active military service. The Veteran's service treatment records show that she was clinically evaluated as psychiatrically and neurologically normal during her enlistment examination in April 1984. However, on the same date, she reported that she experienced depression or excessive worry. The service treatment records further reflect that the Veteran received a mental health examination in March 1985 after a behavioral incident in the classroom. The examination's results were within normal limits except for a finding of questionable insight and judgment. Nevertheless, she was diagnosed with a paranoid personality manifested by a rather pervasive suspiciousness and mistrust of her immediate environment. Shortly thereafter, the Veteran was discharged from the Air Force for conditions that interfered with military service. Since that time, she has been treated by both private physicians and the VA Medical Center in Dayton, Ohio, on a voluntary and involuntary basis. Her diagnoses have included schizophrenia and a bipolar disorder. Therefore, it is clear that the Veteran has a currently diagnosed disability. During the course of the Veteran's appeal, VA obtained two medical opinions regarding Veteran's disorder and its onset and progression. First, the aforementioned October 2006 compensation and pension examiner reviewed the Veteran's claims file and completed a mental health examination. He noted that she has been diagnosed over the years with a variety of psychiatric disorders, specifically listing psychoaffective disorder, bipolar disorder, adjustment disorder with mixed emotional features, cyclothymic disorder, and paranoid type schizophrenia. She was also diagnosed with a paranoid personality disorder during a mental health evaluation during active military service, which also noted pervasive suspiciousness and mistrust of her immediate environment. The Veteran told the examiner that she saw counselors and psychiatrists throughout her school years and was referred to these providers because she drew "questionable pictures" at the margins of her books, spent significant time daydreaming, and performed below her abilities. She also reported attempting suicide and two specific hallucinations as a child. The Veteran also told the examiner that she found her time in the military was stressful and referred to it as "chaotic and confusing." She said she had trouble keeping her uniform clean, was not able to complete her runs, did not feel like she fit in, and wanted to leave the service. After examining the Veteran, the examiner diagnosed her with paranoid type schizophrenia that was stable with medication. He believed that the Veteran's premilitary mental health symptoms were likely the precursor of her currently diagnosed mental disorder and that her paranoid personality disorder, diagnosed during her military service, was the result of the progression of her pre-existing disorder. He also opined that the Veteran's mental health condition was as likely as not aggravated by her military service. However, the examiner stated that it would be mere speculation as to whether military service permanently aggravated the Veteran's mental health service. Due to the complex nature of the Veteran's claim, the Board obtained an IME opinion in February 2011. The IME recounted the Veteran's personal history, including her mother's drug use and abuse from both her parents. The Veteran was truant in high school and attended college before dropping out due to a mental disorder, apparently depression. She functioned as a housewife from 1976 to 1984 and also performed unskilled labor and worked in fast food restaurants. She became pregnant shortly after graduation from high school and married at 18 years of age. The IME also noted that the Veteran's instructors in service said she manifested emotional inappropriateness, over ideation, and spent a disproportionate amount of time day dreaming. A psychological clinical evaluation found that she was cooperative but showed a suspicious and paranoid posture with a highly restricted affect. She also had a tangential and esoteric manner, as well as an urge to engage in a lengthy discussion of why she was being penalized for being overly sensitive to the security of the country. Moreover, the contents of her thoughts were unusual, unconventional with suspiciousness, and emotionally distant. The Veteran's grandiosity was becoming prominent. Eventually, the Veteran was discharged from the Air Force for "conditions that interfered with military service." The IME found that the Veteran has shown strong evidence for a schizophreniform disorder as shown by disorganization, persecutory delusions, and evidence of a thought disorder. At other times, the Veteran has been free of thought disorder and has shown evidence of a mood disorder, which was either severe depression or frank mania with grandiosity, impulsivity, loquaciousness, and irritable or euphoric mood. Nevertheless, she appeared to meet the DSM IV criteria for schizoaffective disorder, mixed type, where she has shown schizophreniform symptoms such as a flattened affect with no mood symptoms or, at other times, frank mood symptoms without schizophreniform symptoms. Next, the IME addressed whether an acquired psychiatric disorder existed before the Veteran's enlistment into active military service. He found that she clearly had a long history of disturbed behavior even before entry into military service. Most of this behavior was consistent with a mood disorder and could be looked at as a prodrome or the first symptoms of the schizoaffective disorder. The Veteran's history of descent from going to college to working at unskilled labor, which occurred before service, is consistent with her mood disorder being the first symptoms of the schizoaffective disorder. Furthermore, the Veteran's admitted drug and alcohol use early in life and her mother's drug and alcohol use have both been associated with an earlier onset of mental disorder in the individual and offspring. Additionally, the Veteran's father apparently had a schizoaffective disorder, and the Veteran reported living in an abusive household. According to the IME, these pre-service factors, while not causing the mental disorder, "can certainly contribute to a predisposed individual." In light of these findings, the IME found clear evidence that a mental disorder existed before service as manifested by depression, suicide attempts, and evidence of functional deterioration. However, there was no clear evidence that she had psychotic symptoms before active service and clearly showed psychotic symptoms during service. The symptoms that contributed to the paranoid personality diagnosis, including bizarre behavior, impulsivity, paranoia, and a thought disorder, are more consistent with psychosis. Moreover, the Veteran did not show documented evidence of hospitalizations before service. Thus, the IME opined that service clearly exacerbated her illness but found that it was not clear if those types of symptoms "would not have emerged at some point in the natural course of the illness." Finally, the IME opined that the more prominent positive psychotic symptoms began during service. He noted that there was no evidence of positive psychotic symptoms beginning before service. Mood symptoms, however, have been prominent from early in her life. Thus, in conclusion, the IME determined that the Veteran had a severe, chronic, relapsing, and disabling illness whose prodrome, and perhaps the mood and negative symptoms associated with it, began before service. Service seemed to precipitate positive psychotic symptoms and hospitalizations. However, the IME could not exclude that such a course could have occurred as a natural course of the trajectory of the illness. Because the Veteran was found clinically normal psychiatrically upon her enlistment, the Board finds that the presumption of soundness would apply to the Veteran's claim. However, since both competent medical opinions of record found that her psychiatric disorder began before service, the Board finds that there is clear and unmistakable evidence that her currently diagnosed acquired psychiatric disorder pre-existed service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2010). Therefore, the Board finds that the presumption of soundness does not apply to this disorder. As such, an acquired psychiatric disorder is found to have pre-existed the Veteran's entrance into active military service. Because the Veteran's acquired psychiatric disorder pre-existed service, the remaining issue is whether there is clear and unmistakable evidence that her disorder was not aggravated beyond its natural progression by military service. The Board observes that both the October 2006 compensation and pension examiner and February 2011 IME found it likely that the Veteran's disorder was aggravated in service but were unsure as to whether the symptoms would have manifested regardless of military service. Therefore, the Board cannot find that there is clear and unmistakable evidence that the Veteran's disorder was not aggravated beyond its natural progression by military service. Consequently, service connection is warranted for an acquired psychiatric disorder, and the Veteran's appeal is granted. Moreover, in the alternative, the psychotic disorder has been identified as manifesting during service. ORDER Entitlement to service connection for a schizoaffective disorder is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs