Citation Nr: 1751935 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 16-15 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Whether new and material evidence exists to reopen a claim of service connection for Schizophrenia. 2. Entitlement to service connection for Schizophrenia. ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1963 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico that denied reopening of the Veteran's previous claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Service connection for Schizophrenia was previously denied in February 1978. The Veteran was informed of the decision, including his right to appeal, but did not appeal, or submit new evidence within a year of the decision. 2. Evidence submitted since February 1978 includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative and redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim for service connection. 3. The weight of the evidence is against a finding that the Veteran's schizophrenia began during his military service, or is otherwise etiologically related to his military service. CONCLUSIONS OF LAW 1. The February 1978 decision denying service connection for schizophrenia is final. 38 U.S.C. § 4004 (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977). 2. New and material evidence has been received to reopen a claim of service connection for Schizophrenia. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156(a), 3.159, 20.1103 (2017). 3. The criteria for service connection for Schizophrenia have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist. Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided and the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained, to the extent available. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also afforded three VA examinations in connection with his claim and he has not objected to the adequacy of the VA examinations. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, that the record includes adequate, competent evidence to allow the Board to decide this matter, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. II. New and Material Evidence The Veteran asserts that new and material evidence exists to reopen his claim for schizophrenia. In January 1978, the Veteran submitted new medical evidence, indicating a desire to reopen his previously denied claim. The RO found the evidence was insufficient to show treatment for a nervous condition during active service or within one year following discharge from the military. The Veteran was notified of such decision in February 1978 and did not file a notice of disagreement, or submit any new and material evidence within the one year appeal period, and that decision became final. The Veteran filed a new claim for service connection for Schizophrenia in August 2014, which was treated as a request for reopening. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to the general rule allows for reopening where new and material evidence exists. 38 U.S.C. § 5108; Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence is defined as 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). In determining whether evidence is new and material, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the February 1978 denial included a psychiatric examination conducted in April 1973 by Dr. Alvarez. Pertinent evidence received since the February 1978 rating decision includes a VA examination from January 1982, VA treatment records from June 1982, service treatment records, private treatment records from 1997, and a Decision Review Officer (DRO) hearing transcript from September 2015. The Board finds that the evidence submitted since the February 1978 decision is new as it had not been previously considered. This evidence is also material as it relates to the basis of the prior final denial. The previous claim was denied because there was insufficient evidence to support the existence of any in-service symptoms, treatment, or diagnosis of a mental health condition. The Veteran's testimony addressed several in-service events that could be considered mental health symptoms, stressors that lead to his current mental health symptoms, or a manifestation of current mental health symptoms being demonstrated at the time of his DRO hearing. For the limited purpose of reopening the claim, the Board will presume this testimony to be credible. When that is done, the Veteran's statements constitute new and material evidence which raises a reasonable possibility of substantiating the Veteran's claim. As such, the previously denied claim for service connection for schizophrenia is reopened. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection can be established by evidence that shows "(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-the so-called "nexus" requirement." 38 C.F.R. § 3.310(a) (2017); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The nexus requirement, in pertinent part, can be established through objective medical evidence; the application of statutory presumptions for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service; or based on a continuity of symptomatology. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran served on active duty from March 1963 to March 1965. In June 1972, correspondence indicated the Veteran had experienced an acute psychiatric episode, possibly in 1972. Additionally noted was that the Veteran had paranoid thought content, was well-oriented in three spheres, had well preserved memories, had poor judgment, but did not experience impaired concentration and was able to differentiate between right and wrong. Additionally, the Veteran was noted to claim he was "covered by his re-incarnation of Prophet Elios." The June 1972 correspondence was treated as a claim for service connection. The Veteran was afforded a VA examination and was diagnosed with Schizophrenia. The Board finds that the Veteran's schizophrenia is a current disability. Therefore, the remaining determination is whether the Veteran experienced an in-service incurrence or aggravation of a disease or injury, and if so, whether there is a causal relationship between the current disability and the in-service disease or injury. Initially, the Board notes that the Veteran's claims file does not include service treatment records other than his entrance and separation examinations. Where service records are unavailable through no fault of the Veteran, there is "a heightened duty of the Board to consider applicability of the benefit of the doubt rule, to assist the veteran in developing the claim, and to explain its decision." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Veteran's medical treatment of record does not contain mention of in-service mental health symptoms, treatment, or diagnosis. Additionally, the available records do not contain a medical opinion linking the Veteran's current disability to any in-service incurrence or aggravation of a disease or injury. The Veteran's entrance and separation examinations show no indication he experienced mental health symptoms upon induction to, or discharge from, the military. There is no indication that the Veteran was anything but physically and mentally healthy. The Veteran's treatment of record begins in 1972 and notes episodes of delusions, paranoia, and hallucinations. This would be approximately seven years after he separated from military service. Private treatment records from Ponce Mental Health Center (MHC) dated June 1972 indicate that the Veteran was hospitalized from June 1972 to March 1973 after presenting with symptoms of irritability, insomnia, lack of appetite, fear of people around him, fits of crying, and suicide attempts. The Veteran was diagnosed with schizophrenia, paranoid type. VA treatment records indicate that the Veteran experiences hallucinations, delusions, paranoia, and mythical ideas. In April 1973, the Veteran received a psychiatric evaluation from Dr. Alvarez. In a June 1973 summary, Dr. Alvarez states the Veteran demonstrated delirious ideas and hallucinations, his predominant affect was sadness, and he was obsessed with suicidal ideas. The Veteran was unable to manage on an outpatient basis and was recommended for hospitalization. The Veteran was noted to resist psychiatric treatment and medications. During his January 1982 VA examination, the Veteran was assessed with a flat affect, spontaneous speech, fast flight of ideas, paranoid thought content and expressing delusions. He was noted to experience an acute psychotic episode several years ago, and since had operated bizarrely, although with relapses of improvement. VA treatment records from June 1982 indicate the Veteran was hospitalized for observation and evaluation. At that time, he reported a history of visual and auditory hallucinations, and delusions of being persecuted by others. He was noted to experience irritability, insomnia, depressed feelings, and wanting to stay in his room, since discharge from the army, which were noted to "have exacerbated during the last years." The Veteran testified at his September 2015 DRO hearing that shortly after he joined the military he was forced to perform a sexual act at gunpoint by a company commander. The Veteran also testified that he fell into comas on two occasions while in service. The Veteran reported dying in the coma and being awakened from the coma by other military personnel. The Veteran also reported that at some point in his service, he was injected with water and salt by a specialist in charge of sick call, and this caused his heart to become "paralyzed, his bloodflow was stopped, and I fell into a tunnel and at the end there was a light." The Veteran testified that he spoke to God in the tunnel, was returned to life, landed on his bed, and was taken to the electric chair by a sergeant who attempted to execute the Veteran twice. The Veteran went on to describe two additional attempts by military persons to kill him, one including a python and one including deceased persons. The Veteran stated "he was not well when he came home from the military" and that he "would run around and did not do much of anything until he attempted suicide in 1972." The Board has considered whether the record contains evidence establishing an in-service incurrence. Neither the Veteran's report of symptoms, nor the objective medical evidence demonstrates that the Veteran had a diagnosis, treatment, or symptoms of mental illness during active service. The Board does not find the Veteran's DRO hearing testimony credible. Credibility is an adjudicative, not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the Veteran's statements demonstrate inconsistency, implausibility and impossibility. The record includes no confirmation of the Veteran's statements. The absence of any previous report of the alleged events in the medical record, coupled with the Veteran's mental health symptoms of delusions and hallucinations weighs against plausibility and possibility. Treatment records show no indication that the Veteran reported the sexual assault at any time other than the DRO hearing. The Veteran's testimony about deceased persons trying to kill him is impossible on its face. The Veteran's testimony about attempts on his life through other means are implausible. The details surrounding the incidents (such as the Veteran's blood flow stopping, falling into a tunnel, supernatural forces appearing, the Veteran dying and returning to life) are unreasonable and are unlikely to have occurred. The Veteran's testimony cannot serve as the basis for finding an in-service injury or incurrence. Since the inception of his claim for service connection, the Veteran has been assessed as experiencing an acute psychotic break in April 1972, resulting in a diagnosis of schizophrenia. Additionally, treatment records consistently note initiation of mental health symptoms and concerns contemporaneous with the Veteran experiencing a psychotic break in 1972, approximately seven years after his separation from service. The nature of initial treatment and the time between active service and initial treatment weigh heavily against finding there was an in-service injury or incurrence. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Moreover, the treatment of record includes no mention of in-service attempts on the Veteran's life, an in-service sexual assault, or in-service symptoms, treatment, or diagnosis related to a mental illness. There is a sheer absence of competent and credible evidence indicating that the Veteran's current Schizophrenia is related to his military service. After review of the lay and medical evidence of record, the Board finds that the Veteran's service connection claim must be denied. ORDER The previously denied claim for service connection for schizophrenia is reopened. Service connection for schizophrenia is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs