Citation Nr: 1304158 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 10-19 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen a service connection for schizophrenia. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to December 1967 and from October 1981 to March 1983. This matter comes before the Board of Veterans Appeals (Board) on appeal from April 2007 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2010, the Veteran appeared at a formal RO hearing. Due to a malfunction of the recording device, a transcript of the hearing is not available. A summary of the hearing is in the Veteran's claims file. In November 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. The issues have been recharacterized to comport with the evidence of record. FINDINGS OF FACT 1. The Veteran did not perfect a substantive appeal of the August 2002 rating decision that declined to reopen his service connection claim for schizophrenia. 2. The evidence submitted since August 2002 is not cumulative, relates to an unestablished fact, and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Veteran was assessed as psychiatrically sound upon his entrance to his second period of active duty. 4. The Veteran competently and credibly reports experiencing the initial symptoms of his currently-diagnosed schizophrenia during his second period of service. 5. The Veteran underwent two psychiatric assessments during his second period of service. 6. The Veteran was initially diagnosed with schizophrenia during his VA psychiatric hospitalization from June to July of 1983, approximately three months after his discharge from his second period of active service. 7. The Veteran's current treating VA psychiatrist has opined that the Veteran's schizophrenic symptoms, as noted during this 1983 VA psychiatric hospitalization, are consistent with his current schizophrenic symptoms. CONCLUSIONS OF LAW 1. The criteria for reopening a service connection claim schizophrenia have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2012). 2. The criteria for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefits sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Claim to Reopen The Veteran did not perfect a substantive appeal of the August 2002 rating decision that declined to reopen his service connection for schizophrenia. The August 2002 rating decision is final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence is defined as evidence not previously submitted to agency decision-makers. 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). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision-makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The RO declined to reopen the Veteran's claim in August 2002 because the newly submitted evidence failed to relate to the reason that the Veteran's claim was initially denied, namely that his preexisting schizophrenia was not permanently aggravated during his second period of service. The evidence submitted since August 2002 includes the Veteran's 2012 Board hearing testimony. The Veteran testified that he first experienced auditory hallucinations during his second period of service and has consistently experienced these hallucinations since service. The Veteran's testimony must be presumed credible for the purpose of reopening his claim. See Justus v. Principi, 3 Vet. App. 510, 512 (1992) (holding that evidence is presumed credible for the limited purpose of determining its materiality). The newly submitted evidence suggests that if the Veteran's currently-diagnosed schizophrenia preexisted his second period of service (as previously determined by VA), his schizophrenia was permanently aggravated during service. The newly submitted evidence is material and reopening the claim is warranted. Service Connection The Veteran contends that he developed his currently-diagnosed schizophrenia during his second period of active service. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. 38 U.S.C.A. § 1132. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.304(b). The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Clear and unmistakable evidence is a more formidable evidentiary burden than the "preponderance of the evidence" standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). The Veteran was assessed as psychiatrically sound upon entrance and separation from his first period of active duty, and his service treatment records do not reflect any psychiatric treatment. In the interim between his first and second periods of service, the Veteran received VA psychiatric treatment in 1978 and 1980. He was not, however, diagnosed with schizophrenia. On entrance to his second period of active service, the Veteran was assessed as psychiatrically sound. During this period of service, the Veteran was referred for a psychiatric evaluation in July 1982, at which time he was assessed as having an acute reaction to stress and a personality adjustment. In March 1983, the Veteran was again referred for a psychiatric evaluation after he was discovered wandering about his Naval ship. The evaluating medical professional determined that there was no evidence of psychiatric disorder, and the Veteran was separated from service that same month. He was assessed as psychiatrically sound during his separation medical examination. Approximately three months after his discharge from his second period of service, the Veteran was admitted for VA psychiatric treatment from June to July of 1983, during which he was initially diagnosed with schizophrenia. Notably, while the Veteran denied experiencing hallucinations at this time, the Veteran's treatment provider stated that he did not believe that the Veteran was being entirely truthful in this report. Subsequent VA treatment records reflect continuous psychiatric treatment for schizophrenia to the present, including other psychiatric hospitalizations soon after service from September to November of 1983 and in August of 1984. The Veteran was afforded VA psychiatric examinations in May 1984 and August 1990. While both examination reports reflect diagnoses of schizophrenia, neither includes a medical opinion regarding the onset or etiology of the Veteran's schizophrenia. During his November 2012 Board hearing, the Veteran testified that he first began experiencing symptoms of his currently-diagnosed schizophrenia, namely auditory and visual hallucinations, during his second period of active service. He testified that he did not report these hallucinations to a treatment provider for fear of being determined psychiatrically unsound. In November 2012, the Veteran's treating VA psychiatrist authored a medical opinion stating that the Veteran's psychiatric symptoms, as reflected in his 1983 psychiatric hospitalization reports, are consistent with his current symptoms of schizophrenia. The psychiatrist stated that it is unlikely that these schizophrenic symptoms had manifested prior to his entrance to his second period of service, as the severity of these symptoms would have rendered him ineligible for enlistment. The medical opinion reflects a detailed review of the Veteran's pre- and post-service psychiatric treatment. VA has not demonstrated clear and unmistakable evidence to rebut the presumption of soundness triggered by the enlistment examination's finding that the Veteran entered service with a normal psychiatric state. No medical opinion reflects such a finding, and the pre-service VA psychiatric treatment records cannot serve to establish that the Veteran's current schizophrenia clearly and unmistakably existed prior to service. Rather, the Veteran's current treating VA psychiatrist has opined that it is unlikely that the Veteran's current schizophrenic symptoms had manifested at the time he entered his second period of service. The Veteran has reported first experiencing hallucinations, which are symptomatic of his currently-diagnosed schizophrenia, during his second period of service. The Veteran is competent to report this symptomatology. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). His report of experiencing these symptoms during service, but failing to report them, is deemed credible. The Veteran's report is consistent with his June 1983 treatment provider's opinion that the Veteran was experiencing these symptoms but failing to report them. The Veteran has reported experiencing the symptoms of his currently-diagnosed schizophrenia continually since his discharge from his second period of service. The Veteran is competent to report this continuity of symptomatology, and his report is deemed credible, as it is corroborated by the Veteran's documented ongoing VA psychiatric treatment since service. The Veteran's VA psychiatrist has opined that the Veteran's schizophrenic symptoms soon after service are consistent with his current schizophrenic symptoms. Schizophrenia, first diagnosed approximately three months after the Veteran's discharge from his second period of service, initially manifested during his second period of service and has persisted since service. The criteria for service connection have been met, and service connection for schizophrenia is warranted. ORDER New and material evidence has been presented to reopen a service connection claim for schizophrenia, and the claim is reopened. Service connection for schizophrenia is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs