Citation Nr: 1603787 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 09-23 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran had honorable active duty service from September 1978 to July 1979; active duty service under honorable conditions from December 1979 to April 1981; and active duty service under other than honorable conditions from December 1981 to May 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in November 2013, at which time it was remanded for additional development, which has been accomplished. As was noted in the Introduction section of that earlier Board Remand, with respect to the period of active duty service from December 1981 until May 1984, the service personnel records show that the Veteran received and other than honorable discharge in lieu of Court Martial; as such, this period does not qualify for VA compensation benefits. See 38 C.F.R. § 3.12. The Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board observes that the record shows that the Veteran has been variously diagnosed with mental health disorders; therefore the issue has been recharacterized as reflected on the title page. In the Veteran's July 2009 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge (VLJ). The Veteran failed to report for the April 2013 scheduled hearing. In a September 2014 correspondence, the Veteran indicated that he wished to attend a Board hearing. When a hearing is scheduled and the Veteran fails to appear, no further request for a hearing will be granted unless good cause is shown or a motion to reschedule is received within 15 days. 38 C.F.R. § 20.702(d) (2015). Such motion to reschedule must include the reason or reasons the Veteran could not attend the originally scheduled hearing and the reason a timely request for a postponement for the hearing was not submitted. Here, the Veteran did not submit his request in a timely manner, or indicate that he had good cause for missing his previously scheduled hearing. Thus, the Board finds that as good cause has not been shown, a new hearing will not be rescheduled. FINDINGS OF FACT 1. In an August 1983 decision letter, the RO denied a petition to reopen a claim for entitlement to service connection for a nervous condition; the Veteran did not appeal the decision and the decision became final. 2. Evidence associated with the claims file subsequent to the August 1983 final decision includes relevant service department records that were not before VA when it decided the claim for service connection for a nervous condition in August 1983. 3. The evidence demonstrates that the Veteran's mental health disorder clearly and unmistakably pre-existed his active duty service, and was not aggravated by such service. CONCLUSIONS OF LAW 1. The August 1983 decision letter that denied the Veteran's petition to reopen a claim for service connection for a nervous condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. The evidence received since the RO's August 1983 decision, which denied a petition to reopen a claim for service connection for a nervous condition, is reopened for reconsideration. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a)(c)(1) (2015). 3. The criteria to establish entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the duty to notify was satisfied in a March 2008 letter. See Kent v. Nicholson, 20 Vet. App. 1, 11 (2006). The Board also concludes that the duty to assist has been satisfied as all pertinent service records, post-service treatment records, and lay statements are in the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, VA did not provide the Veteran with an examination and did not obtain a medical opinion as to the origins of the schizophrenia. Nevertheless, as discussed in detail below, the evidence does not show that the Veteran's pre-existing mental health disorder was aggravated by the Veteran's active duty service, therefore an examination is not required here, even under the low threshold of McLendon. For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. II. New and Material Evidence The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of an attempt to reopen a claim for service connection. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Furthermore, "material evidence" could be "some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). The Board also observes that 38 C.F.R. § 3.156(c)(1) provides that, at any time after VA issues a decision on a claim, if it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include service treatment records that are related to a claimed in-service event. Id. The Veteran's original claim for service connection for a nervous condition was denied in February 1980 and December 1981; the Veteran did not appeal the decisions and they are final. In an August 1983 rating decision, the RO denied the Veteran's petition to reopen his claim for service connection for a nervous condition. In August 1983, the Veteran was advised of the rating decision and his appellate rights. The Veteran did not submit a NOD. In addition, no evidence pertaining to the Veteran's claim was received within one year of the August 1983 rating decision. Therefore, the August 1983 rating decision is final. 38 U.S.C.A. § 7105(b) and (c) (West 2014); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a) (2015). At the time of the last prior final decision in August 1983, the evidence of record consisted of service records, including a May 1979 Medical Evaluation Board Examination, a June 1980 service treatment record, and private treatment records. The following materials were subsequently associated with the claims file after the August 1983 rating decision: private treatment records, Social Security Administration Records, military personnel records, additional service treatment records, and reports from Walter Reed Army Medical Center from May 13, 1979 to June 28, 1979. A July 2014 supplemental statement of the case shows that there were additional service treatment records associated with the claims file and considered by the RO. These newly discovered service treatment records, in particular the Walter Reed Army Medical Center hospital records, are relevant, because they specifically address the Veteran's initial complaints and treatment for his mental illness during his active duty service, his assertions disputing any current mental health problems, and his mother's statements regarding her observations of the Veteran's behavior prior to service. Therefore, the evidence submitted since the final August 1983 rating decision contains service department records, more specifically relevant service treatment records, which were not available at the time of the prior final adjudication of the Veteran's claim. Accordingly, the Board finds that the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is reopened for reconsideration under the provisions of 38 C.F.R. § 3.156(c)(1). II. Service Connection The Veteran contends that his currently diagnosed schizophrenia is related to his in-service diagnosis for hysterical neurosis, dissociative type. In addition, he denies that he had schizophrenia or any related mental health symptomatology prior to entering service during his first period of active duty service, despite the findings made during his Medical Evaluation Board Proceedings. Moreover, the Veteran explains that while he was being treated at Walter Reed Medical Center for his psychiatric problems, he was mistreated and constantly harassed by other soldiers and staff. See April 2008, October 2008, December 2008, and July 2009 statements. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service 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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic diseases, such as psychoses, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). According to 38 C.F.R. § 3.384, "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. A Veteran is 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 evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304(b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under § 1111 if the clear and unmistakable evidence shows that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 and 38 C.F.R. § 3.306 ); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service-connection benefits. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the pre-existing condition was not aggravated by active service, then the presumption has not been rebutted. See id. at 1094. In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322 (2015)); see also id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. See id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). A layperson is competent to report on the onset and continuity of his or her current symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). During the Veteran's first period of active duty service, the Veteran's July 1978 Army enlistment examination had normal psychiatric clinical evaluation results. In his associated report of medical history, the Veteran denied having frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. According to May and June 1979 hospital records and a Medical Evaluation Board narrative summary, the Veteran had been in the Army for eight months. After going to dinner with colleagues, including his supervisor, the night before, the Veteran did not show up for work the next day. When his supervisor called the Veteran, he answered the phone saying that his name was "T." and that "M. [was not] there." His supervisor took the Veteran to the hospital when he saw the Veteran, who insisted that his name was "T" and that he was not in Army. The Veteran was hospitalized at Walter Reed Medical Center for ten days. The examiner noted that the Veteran's "T." personality lasted three to four hours and then he shifted back to "M." While hospitalized, the Veteran relayed a history of having had personality shifts since he was 14 years old, where he was told by other people that he called himself by another name. He was not aware of "T." or what "T." was doing, except for what other people told him. This behavior occurred only once every several months, but lately had become more frequent. During his active duty service, the examiner noted that the Veteran's job performance, as an Army clerk, had been inconsistent as he appeared confused at times, he was not working at scheduled times, and he was not completing his projects. Following an objective evaluation, the Medical Board examiner diagnosed the Veteran with hysterical neurosis, dissociative type, manifested by multiple personality, amnesia for dissociative episodes, and inability to function at work. The Veteran was also diagnosed with improper use of cannabis sativa and hallucinogens, by history. The Medical Board examiner opined that although there was no documentary evidence of prior illness, there was substantial evidence that the Veteran's condition did exist prior to entry on active duty. May 1979 hospital treatment records reflect that the Veteran said he pretended to be "T" when his supervisor called. When asked, the Veteran's mother did not know the name "T" or any of the Veteran's friends named "T." She had not observed any bizarre behavior by the Veteran and denied that he had ever received any psychiatric treatment. A July 1979 application for expedition discharge noted that the Veteran had requested discharge for his disability. He signed a statement that indicated that he had been informed of the findings and recommendations of the medical board, which stated that he was found unfit for retention in the military service by reason of physical disability which had been to be have existed prior to his enlistment and which was neither incident to nor aggravated by his military service. A July 1979 Army memorandum noted that Veteran was separated from active duty for physical disability and that he was not eligible for reenlistment. In 1979, the Veteran enlisted in the Navy and his October 1979 enlistment examination had normal psychiatric clinical evaluation results. In his associated report of medical history, the Veteran did not report his prior hospitalization for mental health treatment or his medical discharge from the Army. In June 1980, the Veteran was referred for psychiatric evaluation upon receipt of his prior Medical Board from the Army to determine continued Naval service. The examiner reviewed the Veteran's Army service and medical records. During the evaluation, the Veteran recounted the events that led to his hospitalization and discharge during his active duty service in the Army. The Veteran said he was experiencing personal stress from the "backstabbers" in his office. At the same time, the Veteran reported that he was using excessive amounts of marijuana and alcohol. He wanted to get out of the Army and used his psychiatric hospitalization as an opportunity to be discharged. He reported that he "made up the entire thing" about having a "multiple personality" in order to get discharged from the Army. Finding that the Veteran's diagnosis of hysterical neurosis was based mostly on the Veteran's personal history, the examiner found such history to have questionable reliability in light of his immaturity and history of drug abuse at the time. Following an objective evaluation, the examiner found no evidence of psychiatric disease. A March 1981 separation examination showed normal psychiatric clinical evaluation results. In an associated reported of medical history, the Veteran reported having depression, loss of memory or amnesia, and nervous trouble of any sort. The examiner noted the Veteran's May 1979 treatment for hysterical neurosis and discharge from military service in July 1979 based on that diagnosis. October 1981 private treatment records document that for more than one month, the Veteran had been hospitalized and treated for chronic paranoid schizophrenia with acute exacerbation. He had been living at home since his discharge from the Navy and had displayed symptoms of irritability, paranoia, and delusions. Private treatment records from July 1987 to September 1989 and from July 2005 to February 2007 document periodic hospitalizations for treatment of various diagnoses, including chronic paranoid schizophrenia with acute exacerbation, probable multiple personality disorder, psychotic organic brain syndrome, schizoaffective disorder, bipolar type, and polysubstance dependency. No etiology opinions were provided. Independent psychiatric evaluations performed in connection with his social security disability applications also showed diagnoses for various mental health disorders. See August 1993 North Carolina Disability Determination Evaluation, June 1998 Psychiatric Disability Evaluation, and May 2002 Independent Psychiatric Evaluation. During his May 2002 psychiatric evaluation, the independent examiner found that the Veteran was the type of individual which under the pressure of a job situation could break into a fully psychotic episode the way it happened while he was in the Army. The independent examiner did not offer an opinion as to whether the Veteran's mental health disorder had pre-existed his service. As an initial matter, the Board finds that the Veteran experienced mental health problems prior to his enlistment into his first period of active duty service (September 1978 to July 1979). Because no psychiatric abnormality was noted at the Veteran's July 1978 enlistment examination, the Veteran benefits from a presumption of soundness. 38 C.F.R. § 3.304(b). Nevertheless, the Board finds clear and unmistakable evidence sufficient to rebut the presumption of soundness. The June 1979 Medical Evaluation Board's findings document the Veteran's reported history of personality changes since he was a teenager and a recitation of work-related incidents reflecting inconsistent job performance. Despite a contemporaneous May 1979 hospital record documenting that the Veteran reported that he pretended to be "T" when he was called by his supervisor, the Medical Board considered all of the evidence, including those assertions and its objective findings, and still found that the Veteran's diagnosed mental health disorder pre-existed his service. Furthermore, in his July 1979 application for expedition discharge, the Veteran, upon requesting discharge from the Army, affirmatively agreed with the Medical Board's findings that his mental health disorder pre-existed service. The only evidence against a pre-existing mental health disorder are the Veteran's own statements, his mother's statements and a subsequent June 1980 medical record. During his hospitalization at Walter Reed, the Veteran indicated that he was pretending to have another personality. His mother had not observed any strange behavior by the Veteran or reported any prior psychiatric treatment. At his June 1980 evaluation, the Veteran told the examiner that he made the entire story up while he was hospitalized in order to obtain a medical discharge from the Army. Indeed, the June 1980 examiner challenged the Medical Board's diagnosis, because the examiner found that it was based on the Veteran's questionably reliable personal history. The June 1980 examiner found no evidence of psychiatric disease. Presently, the Veteran denies that he had schizophrenia or any other mental health problems prior to service. Rather, he asserts that his mental health symptoms did not begin until he was already in service. However, the Board finds that the Veteran's statements that he lied about his prior history of personality problems and that he did not have any mental health problems prior to service are outweighed by his July 1979 signed statement that he agreed with the Medical Board's findings that his diagnosed hysterical neurosis did pre-exist service. Regardless of his subsequent claims to the June 1980 examiner that he lied to obtain a medical discharge, the Board finds that the Veteran's assertions are not credible as he has shown himself to be an unreliable historian. Similarly, the Board finds that the evidence is clear and unmistakable that the Veteran's mental health disorder was not aggravated by his time in service. The June 1979 Medical Evaluation Board conducted a full examination of the Veteran and found that there was no aggravation of his condition in service. There is no evidence to suggest that the personality changes observed during service were more severe than the personality changes the Veteran had prior to service. For these reasons, the Board finds clear and unmistakable evidence that the Veteran's pre-existing mental health disorder was not aggravated by his time in service, and service connection must therefore be denied. ORDER New and material evidence having been submitted, the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is reopened for reconsideration under the provisions of 38 C.F.R. § 3.156(c)(1). Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is denied. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs