Citation Nr: 1329214 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-05 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, other than post-traumatic stress disorder (PTSD), and, if so, whether the claim should be allowed. REPRESENTATION Appellant represented by: Nicholas Parr, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from March 2001 to April 8, 2004. He had no overseas service. His military occupational specialty (MOS) was a pharmacist. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reopened the claims for service connection for schizophrenia, a psychotic disorder, and depression but denied the claims de novo. The Veteran and his wife testified before the undersigned Veterans Law Judge (VLJ) at a hearing at the RO (commonly called a travel Board hearing) in April 2013 and a transcript thereof is located in the Virtual VA paperless claims processing system, which does not reveal any additional documents pertinent to the present appeal. As will be explained, the Veteran did not perfect a timely appeal from the January 2005 rating decision which denied service connection for schizophrenia, depression, and a mental disorder, as well as for post-traumatic stress disorder (PTSD). See 38 C.F.R. §§ 20.200, 20.302(b). The Veteran applied to reopen the claim service connection for PTSD in February 2009 and a September 2010 rating decision reopened the claim for service connection for PTSD but denied the claim on a de novo basis. Although notified of that denial, he has not initiated an appeal of that decision. With respect to reopening of the claim for service connection for PTSD, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Here, the claim for service connection for PTSD is governed by different regulations, see 38 C.F.R. § 3.304(f)(5)(personal assault), different facts, and different symptoms. Thus, the Board has characterized the appeal as stated on the title page. At the April 2013 travel Board hearing the Veteran testified that he was exposed to loud noise from rifle fire during service that caused a ringing in his ears for several months. Page 10 of the transcript of that hearing. He did not testify that he still heard a ringing sound in his ears (commonly called tinnitus). So, it is not clear whether the Veteran, or his attorney, is seeking service connection for tinnitus. This matter is referred to the RO for clarification. Also, attached to an August 2012 letter from the Veteran's attorney is a copy of VA Form 21-8940, Application for Increased Compensation Based on Unemployability. This matter is also referred to the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A January 2005 RO rating decision denied service connection for schizophrenia (a form of psychosis), depression, and a mental disorder; after the Veteran was notified thereof and of his procedural and appellate rights, he did not perfect an appeal of the adverse determination by filing a substantive appeal after the RO furnished him a statement of the case in May 2006. 2. The additional evidence present since the rating decision of January 2005 relates to an unestablished fact necessary to substantiate the claim of service connection for a psychosis. 3. A psychosis is affirmatively shown to have manifest to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The January 2005 RO rating decision denying service connection for schizophrenia, depression, and a mental disorder became final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. § 3.104(a) (2012). 2. The additional evidence presented since the rating decision of January 2005 denying service connection for schizophrenia, depression, and a mental disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A psychosis, a chronic disease, is presumed to be of service origin. 38 U.S.C.A. §§ 1110, 1112, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the request to reopen the claim for service connection for schizophrenia, depression, and a mental disorder, and the favorable disposition of the claim for service connection for a psychosis on the merits, the Board finds that all notification and development actions needed to fairly adjudicate this matter have been accomplished. II. Petition to Reopen Historically, the Veteran was notified in January 2005 of a rating decision that month which, in pertinent part, denied service connection for PTSD, schizophrenia, depression, and a mental condition. He initiated an appeal by filing a notice of disagreement (NOD) in September 2005. He and his mother testified before a Decision Review Officer (DRO) in January 2005, following which a statement of the case (SOC) was issued in May 2006. Subsequently, no further communication or correspondence was received from the Veteran until he requested copies of documents in his claim file in February 2007. Consequently, the Veteran did not perfect a timely appeal from the January 2005 rating decision. See 38 C.F.R. §§ 20.200, 20.302(b). So, the January 2005 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In December 2008 the Veteran applied to reopen claims for service connection for "schizophrenia and psychotic disorder, depression." He appealed the April 2009 rating decision which reopened the claims for service connection for schizophrenia, a psychotic disorder, and depression but denied the claims de novo, by filing an April 2009 NOD, and after a November 2010 SOC, he perfected the appeal by filing a substantive appeal, VA Form 9, in January 2011. However, regardless of the RO's action in reopening, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied after a final Board decision or a final RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). A claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. Because the rating decision in January 2005 was the last final denial of the claim, the Board must review the evidence submitted since that rating decision to determine whether the claims should be reopened and considered on the merits. 38 U.S.C.A. § 5108. The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence raises a reasonable possibility of substantiating a claim if, when considered with the old evidence, it would at least trigger VA's duty to assist by providing a medical opinion. Id. Under 38 C.F.R. § 3.156(a), new evidence means existing 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992); see also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine, articulated in Evans v. Brown, 9 Vet. App. 273 (1996), was not altered by the ruling in Hodge v. West, 155 F.3d 1356 (Fed.Cir. (1998). The ultimate weight to be accorded evidence is a question of fact that must be determined based on all of the evidence on file but only after a claim is reopened. Justus, 3 Vet. App. at 513. Evidence Previously Considered The service treatment records (STRs) show that a December 2003 mental status evaluation noted that the Veteran had tested positive for "THC" during a unit urinalysis, for which he was pending disciplinary action but he wished to remain in the military. He denied a personal or family psychiatric history. A mental status evaluation found no abnormality and there was no evidence of a major psychiatric disturbance. The diagnosis was cannabis abuse. Despite the Veteran's written statement expressing his desire to remain in military life, and supporting statements from service comrades attesting to his good character, the Veteran was discharged from active service. VA clinical records show that the Veteran presented to a VA emergency room on March 12, 2004 (while still on active duty) complaining of increasing depression and insomnia over the 3 preceding days. He reported having had previous episodes during the last few years. Upon careful questioning there was no history of mania. His drug screen was positive for cannabis but he was very evasive about this. He refused entry into in a drug treatment program. He apparently had been in a drug treatment program during military service. He was started on medication and with time showed no evidence at all of depression. He improved and his paranoia was much less. There were no auditory or visual hallucinations, and no suicidal or homicidal thoughts. He was discharged on March 26, 2004 and the discharge diagnoses were a psychotic disorder, not otherwise specified (NOS), and cannabis abuse or dependence. The Veteran underwent VA hospitalization from the 2nd to the 7th of June 2004. It was noted that he had just been discharged on May 26, 2004, but he was brought back by his family who believed his medication was not working. He was admitted with paranoia and agitation. His family reported that he continued to hear voices. He was admitted with diagnostic impression of major depression, single episode; but other diagnostic possibilities were a bipolar disorder, schizophrenia, and a psychosis secondary to substance abuse. A drug screen was positive for cannaboids. He complained of depression. At discharge he had no auditory or visual hallucinations and no suicidal or homicidal thoughts. The discharge diagnoses were a psychotic disorder, not otherwise specified (NOS), and cannabis abuse or dependence. VA outpatient treatment (VAOPT) records also show that later in June 2004 the Veteran reported having a history of alcohol dependence and drug use, and also of hallucinations. In July 2004 he denied a history of physical or sexual abuse. He reported that he began smoking marijuana at age 14 and last used it in April 2004. It had interfered with his work and he had recently lost a job due to cannabis usage. He had developed auditory and visual hallucinations in May 2004. The diagnoses were cannabis abuse, and a psychotic disorder NOS. A September 2004 statement from the Veteran's mother stated that he was well adjusted prior to military service but that he had changed after being in military service and was now depressed and anxious. He had been traumatized while in an Army Substance Abuse Program (ASAP). The January 2005 rating decision denied service connection, finding that the evidence did not establish that his claimed conditions were incurred in or caused by military service. Additional Evidence The evidence received since the January 2005 rating decision includes additional service personnel records and STRs. The additional STRs show that in June 2001 the Veteran was in an altercation on a bus and had three stitches to his right cheek to close a laceration. The stitches were removed one week later. Additional VA treatment records, including CAPRI records contained within VA's paperless claims processing system, show continued treatment for psychiatric disability. Records from the Social Security Administration (SSA) show that the Veteran was awarded disability benefits due to paranoid schizophrenia and other functional psychotic disorders, and that there were secondary diagnoses of psychoactive substance dependence. A report of a September 2004 comprehensive mental status evaluation reflects that the Veteran reported first having auditory hallucinations during active service. At a January 2006 hearing before a Decision Review Officer (DRO), in conjunction with an appeal from the January 2005 RO denial, the Veteran testified that he had started hearing voices while on active duty. Page 2 of that transcript. He had been treated by VA for schizophrenia since 2004. He had had depression due to his military experiences. Page 4. The Veteran was afforded a VA psychiatric examination in September 2010, at which time his claim file and electronic records were reviewed. Paranoid and depressive symptoms, as well as auditory hallucinations, were noted, and his clinical history was reported. After a mental status examination, the diagnoses were paranoid schizophrenia; depression, NOS; and cannabis abuse. It was noted that substance abuse was a factor in the Veteran's condition. The examiner's opinion was that the Veteran's problem with paranoia and his diagnosis of schizophrenia were at least as likely as not related to the fact that the Veteran found the Army to be very stressful. An addendum in September 2010 by the September 2010 VA examiner stated that he wished to modify one of the statements made in the original examination report. The examiner stated that he was unable to attribute the Veteran's problems with paranoia and schizophrenia to in- service military stressors. The psychotic disorder had previously been noted to be due to or in close proximity to his abuse of alcohol and marijuana. Furthermore, his schizophrenia was not considered as the same diagnosis as a psychotic disorder NOS. For the purpose of the dictation of the examination report, the term schizophrenia was to be considered as interchangeable with the term "psychiatric disorder" NOS. The Axis I diagnosis of schizophrenia which the examiner had given the Veteran did not denote a progression of the Veteran's previously diagnosed psychotic disorder NOS. At the April 2013 travel Board hearing the Veteran testified that he had been physically assaulted during service, after which he became depressed and paranoid, and was twice sexually assaulted by a sergeant, leading to a mental breakdown. Page 4. He had had hallucinations during service and had undergone VA psychiatric hospitalization in May 2004. Page 5. During his VA hospitalization in May 2004 he had been diagnosed with a psychotic disorder and schizophrenia. Page 6. III. Reopening Analysis Here, there are voluminous up-to-date VA treatment records which have been received since the January 2005 rating decision. However, up-dated VA outpatient records are not new and material. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence). On the other hand, in Falzone v. Brown, 8 Vet. App. 398, 404 (1995) it was held that where there was an application to reopen a claim, because an examination was conducted to determine the nature and severity of the claimed condition, such an examination would not have been necessary unless the claim was to be adjudicated on the merits. As such, in rendering such assistance (i.e., obtaining a VA examination before reopening) "the Board performed a "de facto reopening" of the claim. Here, the Veteran was afforded a VA nexus examination in September 2010, after the April 2009 rating decision found that the claim was reopened. The Board concurs that the additional evidence, including the report of the initial September 2010 VA nexus examination, without consideration of the subsequent addendum, constitutes new and material evidence for the purpose of reopening. The favorable initial opinion of the September 2010 VA examiner relates to an unestablished fact necessary to substantiate the claim for service connection for psychiatric disability, i.e., a nexus of current disability to military service, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened and must be readjudicated on the merits. IV. Merits Determination Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires (1) the existence of a present disability: (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service (the nexus requirement). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed.Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Certain conditions, a psychosis will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Previously, caselaw allowed for continuity of symptomatology to be used beyond the list of chronic diseases in 38 C.F.R. § 3.309(a). See Savage v. Gober, 10 Vet. App. 448, 495-96(1997), Kent v. Nicholson, 20 Vet. App. 1 (2006) and Barr v. Nicholson, 21 Vet. App. 303 (2007); see also dictum in Groves v. Peake, 524 F.3d 1306, 1309-10 (Fed.Cir. 2008). However, recently in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), these cases were explicitly overruled by the United States Court of Appeals for the Federal Circuit. In sum, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) it was held that continuity of symptomatology could be used to establish service connection only for the disorders specifically listed at 38 C.F.R. § 3.309(a) as being "chronic" diseases and not for other disorders which might be chronic in a medical senses much less for non-chronic disorders. 38 C.F.R. § 3.384(a) - (i) states that a psychosis means any of the following disorders listed in the Diagnostic and Statistical Manual of Mental Disorders - (a) brief psychotic disorder;(b) delusional disorder;(c) psychotic disorder due to general medical condition;(d) psychotic disorder NOS;(e) schizoaffective disorder;(f) schizophrenia;(g) schizophreniform disorder;(h) shared psychotic disorder; and (i) substance-induced psychotic disorder. However, a bipolar disorder of any type, including any possible bipolar, NOS, is not listed at 38 C.F.R. § 3.384 as being a psychotic disorder. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) the Federal Circuit interpreted the interplay between 38 C.F.R. §§ 3.303(b), 3.307(a), and 3.309(a) as permitting service connection for chronic diseases listed at 38 C.F.R. § 3.309(a) in two circumstances. First, when a listed chronic disease is shown inservice or within a presumptive period under 38 C.F.R. § 3.307 which requires that it be well diagnosed beyond question or beyond legitimate question. Walker, Id. The second circumstance is when a condition is noted during service or a presumptive period but is not shown to be chronic or when a diagnosis of chronicity may be legitimately questioned such that a chronic disease is not shown and, here, proven continuity of symptomatology then establishes the nexus with the current disease and also confirms the existence of chronic disease during service. In the case of a disease which is not a chronic disease under 38 C.F.R. § 3.309(a), service connection must be established under 38 C.F.R. § 3.303(a) (and not § 3.303(b)) which requires that the "nexus" requirement be satisfied (whereas, under § 3.303(b) provides for presumptive service connection or service connection by use of continuity of symptomatology. De Novo Analysis It is undisputed that the Veteran used cannabis during and after military service. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2012). Here, although the Veteran's MOS was a pharmacist, it was not until two years into his military service that urinalysis screening detected his use of cannabis. This, together with the supporting statements of service comrades attesting to his good character, weighs against finding that the Veteran's cannabis abuse was anything more than isolated and infrequent even though he later reported having used cannabis prior to military service. Also, the Veteran's VA treatment in March 2004, even while he was still in military service and within the first year after service, shows that he had psychiatric symptoms. There were various diagnoses but the primary diagnosis was a psychotic disorder NOS, which is specifically listed at 38 C.F.R. § 3.384(d) as being a psychosis. This was not only diagnosed during his VA hospitalization in March 2004, while he was still on active duty, but diagnosed again on several occasions within this first year after his April 2004 service discharge. And all this is consistent with the Veteran's travel Board testimony that he had started having hallucinations, which at the 2006 DRO hearing he indicated was in the form of hearing voices. The significant postservice evidence revolves around the opinions of the 2010 VA examiner. The opinion first rendered was that the Veteran's paranoia and schizophrenia were as likely as not related to inservice military stress. The latter addendum reversed this opinion and the examiner felt that the Veteran's psychotic disorder was due to alcohol and marijuana abuse. However, the examiner continued and stated that schizophrenia was not considered the same diagnosis as a psychotic disorder NOS but then, on the other hand, stated that the term schizophrenia was interchangeable with the term psychiatric disorder NOS. In this regard, the Board notes that schizophrenia is also listed, at 38 C.F.R. § 3.384(f) as being a psychosis. The examiner did not list the Veteran's diagnosis as being a substance-induced psychotic disorder, which is also listed, at 38 C.F.R. § 3.384(i), as being a psychosis. Here, the original opinion by the VA examiner in September 2010 and the opinion in the addendum are in stark contrast with each other and, in fact, the addendum is tantamount to a complete reversal of the original opinion. For the addendum to be accepted as more probative, persuasive reasons or bases would have to be expressed. However, the opinion in the addendum that the psychotic disorder was due to alcohol and drug use appears to be, at best, conclusory and lacks sufficient explanation of why the stresses during service, which were considered significant in the original opinion, played little or no role in the development of psychiatric symptoms which manifested both during and after service. Consequently, the Board finds that the old evidence and the new evidence, when considered together, is at least in equipoise and, so, with the favorable resolution of doubt, service connection for a psychosis is warranted. ORDER As new and material evidence has been presented, the claim of service connection for schizophrenia, depression, and a mental disorder, is reopened. The appeal as to reopening is granted. On the determination of the merits, service connection for a psychosis is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs