Citation Nr: 1612621 Decision Date: 03/29/16 Archive Date: 04/07/16 DOCKET NO. 09-41 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1978 to September 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which found that new and material evidence had not been received to reopen a previously denied claim of service connection for schizophrenia. By decision dated in April 2014, the Board found that new and material evidence had been received and reopened the case. The case was then remanded by the Board so that the Veteran's service treatment records (STRs) and service personnel records (SPRs) could be associated with the claims folder. This was accomplished and the case has been returned for further appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND As noted, the Veteran's claim was remanded so that the Veteran's STRs and SPRs could be located. Of note is that the prior decisions that denied service connection were based upon those records, which reportedly showed that the Veteran's schizophrenia had existed prior to service and had not been aggravated therein. The records have now been located and it is noted that on examination at entry upon active duty psychiatric clinical evaluation was normal. As such, the Veteran is presumed to have been psychiatrically sound at the time of entry. See 38 U.S.C.A. § 1111. A Physical Evaluation Board (PEB) reported that the Veteran had been hospitalized soon after his entry into service for treatment of schizophrenia. Significantly, the PEB noted that this had occurred shortly after the Veteran's father had died at the age of 38. The PEB did note a report of the Veteran's mother that the Veteran had, in the 18 months prior to service, showed a lack of motivation. These comments were apparently found to be sufficient for a finding that the Veteran's schizophrenia had existed prior to enlistment. It was further found that the disability had not been aggravated by service. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that the lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). This Federal Circuit case postdates the last rating action that denied service connection (2003) as well as a prior decision of the Board that denied service connection (1987). The Board finds that, given the STRs, a medical opinion regarding whether the Veteran's schizophrenia preexisted active duty and whether it was aggravated therein is necessary prior to further appellate consideration. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (Setting forth the criteria under which VA is required to obtain an examination.) Accordingly, the case is REMANDED for the following action: 1. The Veteran's medical records should be referred to a VA examiner who should be requested to provide a medical opinion that expressly addresses the following: (a) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that schizophrenia pre-existed the Veteran's active service. (b) If the answer to (a) is yes, whether it is clear and unmistakable (obvious, manifest, and undebatable) that any pre-existing schizophrenia disability was not permanently worsened during the Veteran's service, and that any increase in disability was due to the natural progress of the disease. (c) If the answer to (a) or (b) is no, whether it is at least as likely as not (50 percent or greater probability) that schizophrenia had its clinical onset during the Veteran's service or was otherwise related to any in-service disease, event, or injury. In responding to the above questions, the VA examiner should provide a detailed explanation of relevant facts and medical principles. The claims file must be made available to, and reviewed by, the examiner. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions and utilizing the correct standard of review ("clear and unmistakable" or "at least as likely as not (50 percent or greater probability)"). If after conducting the review, any of the above questions cannot be answered without resort to speculation, the examiner must state why this is so. If after conducting the review, the examiner finds that an in-person examination of the Veteran is necessary, such an examination should be scheduled. 2. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. They should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). 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 2014). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).