Citation Nr: 1318023 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 04-12 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, manic depression and bipolar disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to July 1978. The Veteran initially filed a claim for entitlement to service connection for "schizophrenia, paranoid type, persecutory subtype, chronic, severe-EPTS [existed prior to service]" in August 1978, which was denied in an August 1978 rating decision issued by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Waco, Texas. In June 1983, the Veteran requested that his claim for service connection for schizophrenia be reopened, which was denied in a June 1983 rating decision. In October 2002, the Veteran filed another request to reopen his claim for service connection for a "nervous condition," which was again denied in a March 2003 rating decision by the Waco RO. An appeal of this decision was perfected to the Board of Veterans' Appeals (hereinafter "Board"). The Veteran testified at a hearing held before a now-retired Veterans Law Judge (hereinafter 'VLJ") in February 2007. In May 2007, the Board denied the Veteran's request to reopen the claim for service connection for schizophrenia. The Veteran appealed the May 2007 decision to the United States Court of Appeals for Veterans Claims (hereinafter "Court"). The claim was thereafter the subject of a March 2008 Joint Motion for Remand (hereinafter "JMR") and Order of the Court, which indicated that VA did not fulfill its duty to notify the Veteran pursuant to 38 U.S.C.A. § 5103(a) and Kent v. Nicholson, 20 Vet.App. 1 (2006). The JMR also indicated that VA failed to obtain records from the Social Security Administration (hereinafter "SSA") after being notified that the Veteran was in receipt of SSA benefits during his February 2007 hearing. In April 2009, the Board remanded the case to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC, for additional development of the record, to include obtaining records from the SSA, and ensuring that all notification action required by 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159(b)(1) were fully complied with under the holding in Kent. The record shows substantial compliance with the April 2009 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In May 2010, the RO issued a supplemental statement of the case (hereinafter "SSOC"), which denied entitlement to service connection for schizophrenia. In August 2010, the Board again denied the request to reopen the claim for service connection for schizophrenia, and again, the Veteran appealed the August 2010 decision to the Court. In an October 2011 Memorandum Decision, the Court reversed the Board's August 2010 decision that found that no new and material evidence had been received to reopen the Veteran's claim , based on the holdings in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) and Justus v. Principi, 3 Vet.App. 510, 513 (1992). Further, the Memorandum Decision instructed the Board to return the matter to the RO for adjudication to afford the Veteran one review on appeal, and to complete any development that the reopened claim required, including obtaining a medical examination and opinion. The Court's directive as through the October 2011 Memorandum Decision is the law of the case. Chisem v. Gober, 10 Vet. App. 526 (1997) (questions settled on a former appeal of the same case are no longer open for review). See Browder v. Brown, 5 Vet. App. 268 (1993). Most recently, in November 2011, the RO readjudicated the matter, and split the issue into two involving separate and distinct psychiatric disorders. Here, the RO denied a claim for service connection for "bipolar disorder, with manic depression;" and denied an incorrectly characterized request to reopen the already reopened claim for service connection for "schizophrenia, paranoid type." While on appeal, the United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit") recognized that separately diagnosed psychiatric conditions could be service connected, but could not be separately rated unless they resulted in different manifestations. Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). The Board notes that the RO failed to provide the Veteran with an examination that identified and evaluated the Veteran's variously diagnosed psychiatric disorders and addressed their relationship to one another. The Court addressed a case involving the scope of filed 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 as having schizophrenia, manic depression and bipolar disorder. The Board therefore finds that the Veteran's claim is not limited solely to schizophrenia and must be developed more generally as a claim for an acquired psychiatric disorder, particularly in light of the lack of medical evidence in the claims file that addresses the nature of his variously diagnosed acquired psychiatric disorders. Thus, the claim is broadly recharacterized as a claim of service connection for an acquired psychiatric disorder, to include schizophrenia, manic depression and bipolar disorder, as reflected on the title page of this decision. As noted, the Veteran testified at a hearing held before a now-retired VLJ in February 2007. Given this circumstance, the Veteran was offered another hearing. He accepted and provided testimony before the undersigned VLJ in March 2013. Transcripts of these hearings are associated with the physical claims file and the eFolder on Virtual VA (hereinafter "Virtual VA"). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the February 2007 hearing, the now-retired VLJ and representative for the Veteran outlined the issue on appeal as that involving a request to reopen the claim of entitlement to service connection for schizophrenia, and engaged in a colloquy as to substantiation of the claim, including identifying relevant types of evidence. Overall, the hearing was legally sufficient and the duty to assist has been met in this regard. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant, 23 Vet. App. 488 (2010). At the March 2013 hearing, the undersigned and Veteran's representative inaccurately set forth the issue to be discussed at the hearing as involving a request to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, and sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. However, the undersigned also specifically focused on the elements necessary to substantiate the Veteran's service-connection claim as that involving aggravation of a preexisting condition, and the questions elicited testimony specific to the current nature and etiology of the Veteran's acquired psychiatric disorder, to include the extent of his symptomatology in service. Overall, the hearing was legally sufficient and the duty to assist has been met in this regard. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); Bryant, 23 Vet. App. 488 (2010). With respect to both hearings, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearings. As such, the Board finds that consistent with Bryant, the now-retired VLJ and undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that the Board can proceed with its development of the claim. Apart from one of the Veteran's hearing transcripts, the electronic Virtual VA records file was reviewed and did not reveal any VA treatment records pertinent to this appeal. The appeal is REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required. REMAND To ensure compliance with due process requirements, the Board presently remands the Veteran's claim for service connection for an acquired psychiatric disorder for further development. In particular, remand is required to provide him with VA examination and medical opinion for his claimed acquired psychiatric disorder. The Board observes that a veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If a condition is noted at the time of service entrance, a veteran is not entitled to the presumption of soundness. Wagner, 370 F.3d at 1096. Under such circumstances, service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed 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 was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). A veteran (the evidence of record) has the burden of showing that there was an increase in disability. See Wagner, 370 F.3d at 1096. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). If a preexisting condition underwent an increase in severity during service, clear and unmistakable (obvious or manifest) evidence is required to rebut the resulting presumption of aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Because an acquired disorder was not "noted" at service entrance, the presumption of soundness applies, and the burden shifts to VA to rebut the presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of soundness, there must be clear and unmistakable evidence both (1) that the disorder existed prior to service, and (2) that the preexisting disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). The clear and unmistakable standard is "very demanding" and requires unconditional (uncontradicted) evidence, which is not satisfied by anything less than an unequivocal medical opinion. Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (citing Harris, v. West, 11 Vet. App. 456, 462 (1998)). Here, the record before the Board unequivocally documents the existence of a preexisting psychiatric disorder occurring prior to the Veteran's entrance into military service. In this regard, a report from the "Western State Hospital," dated in February 1976, which was associated with the service treatment records, reflects the Veteran requested voluntary admission after referral from a mental health clinic in Seattle, Washington. The Veteran was diagnosed with "schizophrenia, chronic undifferentiated type, with depression." The service treatment records show that a Report of Medical Examination for the purpose of commission, dated in February 1978, shows no mental health defects were noted on examination and the Veteran was found to be qualified for his commission. A concurrent Report of Medical History reveals the Veteran denied experiencing "Frequent trouble sleeping;" "Depression or excessive worry;" "Loss of memory or amnesia;" "Nervous trouble of any sort;" and "Periods of unconsciousness." A "Screening Physical Examination for Army Recruitment 'Spear Worksheet'," dated in February 1978 indicates the Veteran denied having a nervous condition. However, in April 1978, the Veteran was admitted to a hospital following several suicide attempts. He underwent a second psychiatric hospitalization later that month, and was diagnosed with "schizophrenia, paranoid type, chronic, with acute exacerbation, with significant dysphoric element." It was noted that the Veteran was treated as an out-patient for two weeks by a psychiatrist for the first time in 1970, and at a later date in 1970 and 1971, for an additional 2 to 3 years, but he denied ever having been hospitalized. However, it was also noted that in 1976 the Veteran was a patient in a state hospital for 45 days, where he was diagnosed with paranoid schizophrenia. It was noted that the Veteran did not tell his recruiter of his long psychiatric history when he enlisted. He completed basic training and was on leave prior to active training. In May 1978, it was noted that the Veteran remained confused, perplexed, loose, volatile and relatively flat. Subsequent treatment in May revealed that the Veteran continued to display evidence of inappropriate behavior, but that psychiatric medications had slowly started to take effect. By the time of his discharge from service, in June 1978, the Veteran was noted to be in relatively good remission, was no longer grossly confused, although he was still circumstantial and loose when he spoke, and it was noted that he seemed to smile inappropriately on some occasions. He was diagnosed with "schizophrenia, paranoid type, persecutory subtype, chronic, severe, with acute exacerbation, in partial remission; manifested by paranoid concerns, looseness of associations, distractibility, poor concentration, sleeplessness, feelings of loneliness and dysphoria, inappropriate affect, and impaired judgment." His stress was assessed as "mild," due to "routine military duty." His predisposition was noted as "severe" with a "previous history of civilian psychiatric hospitalization for paranoid schizophrenia. He was determined to be marked for further military duty, and was given the designation of "EPTS." It was further determined that the Veteran's schizophrenia rendered him unfit for military service, and it was recommended that he be medically separated. He was found to be mentally competent and able to manage his own financial affairs, and to be discharged to his own care. It was recommended that he continue with outpatient supportive psychotherapy at a VA treatment facility, and remain on psychiatric medications. A Disposition Form, also dated in June 1978, indicates a Medical Board determined that the Veteran was "unfit for retention on active duty by reason of a physical disability which was neither incurred nor aggravated during any period in which he was entitled by basic pay (existed prior to service and neither incident to nor aggravate by military service)." The Board notes a private physician, "Dr. Fisher," provided medical opinions in November 2003, April 2004 and May 2004, which indicate that the Veteran was diagnosed with "by history, schizoaffective disorder/major depression, recurrent with psychoses." The Veteran reported that his psychiatric condition worsened after he enlisted in the military service, and that he spent six or seven months in the hospital during service. Dr. Fisher noted that some of the Veteran's private and VA treatment records were reviewed, but not the service treatment records. Dr. Fisher opined "it may be that the military environment and its requirements did make [the Veteran's] psychiatric condition worse," and it was recommended that the Veteran undergo reevaluation to determine if the preexisting acquired psychiatric disorder was aggravated by the Veteran's service. The Board finds that Dr. Fisher's opinion has little, if any, probative weight because of its speculative nature ("it may be"). See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (holding doctor's statement that brain tumor "may well be" connected to Agent Orange exposure was speculative). However, the Board agrees with Dr. Fisher that the Veteran must be afforded a VA examination with medical opinion to determine the nature and etiology of the acquired psychiatric disorder. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Board is prohibited from making its own independent medical conclusions as to this matter, and must remand this issue for additional clarification. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must arrange for a VA psychiatric examination with the appropriate clinician to determine the nature and etiology of any claimed acquired psychiatric disorder, to include schizophrenia, manic depression and bipolar disorder. A copy of this remand, any stressor verification information, and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA eFolder. The examiner is asked to confirm whether paper and/or electronic records were available for review. The examiner must review the pertinent evidence and undertake any indicated studies. The examiner must then provide a diagnosis for each psychiatric disability found, made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2012). For each diagnosis, the examiner should provide an opinion answering the following questions: (a) Is there clear and unmistakable evidence that the diagnosed acquired psychiatric disorder preexisted service? If so, is there clear and unmistakable evidence that the disorder did not increase in severity during service or that any increase was due to the natural progress of the disease. The examiner is reminded that the clear and unmistakable evidence standard is an onerous one and means that the evidence cannot be misunderstood or misinterpreted and is undebatable. (b) For any acquired psychiatric disorder that did not clearly and unmistakably exist prior to active duty and was not aggravated by active duty, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the disorder had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service? The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for any opinion offered is requested. If the examiner is unable to render the requested opinion without resort to pure speculation, he or she must so state; however, a complete rationale for such a finding must be provided. 2. After any additional development deemed necessary is accomplished, the RO/AMC must readjudicate the service connection claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with an SSOC that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) 2012).