Citation Nr: 1757515 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 14-21 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for schizophrenia. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Margaret Costello, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his brother (Dr. J. Z) ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In June 2017, the Veteran testified before the undersigned at a Board video conference hearing. A transcript of the hearing is of record. In March 2010 and in December 2010, the Veteran's representative requested in writing that the initial rating decision that denied service connection for schizophrenia in May 1996 be revised on the basis of clear and unmistakable error. She explained in written argument in October 2015 that the AOJ incorrectly applied the law in May 1996 when it denied service connection for schizophrenia. As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The RO denied reopening the claim for service connection for schizophrenia in a January 2004 rating decision; the Veteran did not appeal that decision, nor did he submit new and material evidence within one year. 2. The evidence received since the January 2004 rating decision relates to an unestablished fact necessary to substantiate the appellant's claim for service connection for schizophrenia. 3. Schizophrenia was aggravated by service. CONCLUSIONS OF LAW 1. A January 2004 rating decision that denied reopening a claim for service connection for schizophrenia is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim for service connection for schizophrenia has been submitted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for schizophrenia have been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Law and Regulations Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). That is, only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). In this instance, while it appears that the RO in June 2011 reopened the Veteran's claim for service connection for schizophrenia, and then reviewed the claims on the merits, the Board has a jurisdictional responsibility to consider whether it was proper for the claim to be reopened, regardless of what the RO has determined. See Jackson v. Principi, 265 F. 3d 1366, 1369 (Fed. Cir. 2001). 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 purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In the instant case, the RO initially denied the Veteran's claim for service connection for schizophrenia in May 1996 on the basis that the disability pre-existed service and was not aggravated by service. The last final determination in this matter was made in January 2004 when the RO denied reopening the Veteran's claim. Pertinent evidence received after January 2004 includes a medical opinion from Dr. T. and hearing testimony from the Veteran as well as his brother (Dr. J.Z.). Dr. T. and the Veteran's brother are both psychologists. They opined that the Veteran's schizophrenia was permanently aggravated by his active duty service and they provided reasons for their opinions. As this evidence relates to an unestablished fact in this case, i.e. the nexus element, and raises a reasonable possibility of substantiating the claim, the Board finds that it constitutes new and material evidence for purposes of reopening the claim. Consequently, the claim for service connection for schizophrenia is reopened. See 38 C.F.R. § 3.156 (a). II. Service Connection Legal Criteria Veterans are entitled to compensation from VA for aggravation of a preexisting injury suffered in line of duty. See 38 U.S.C. § 1110 (2012); see also 38 C.F.R. § 3.303 (2017). The provisions of 38 U.S.C.A. § 1111 provide that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service. An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The United States Court of Appeals for Veterans Claims has explained that clear and unmistakable evidence means the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). Pertinent Facts A May 1987 medical record from Clinton Valley Center shows that the Veteran was admitted on a petition signed by his wife and Medical Certification. His admitting diagnosis was schizophrenia, paranoid type. Service personnel and treatment records show that the Veteran's Reserve Unit was called to active duty in November 1990 in support of Desert Shield. In January 1991, the Veteran arrived in Saudi Arabia and was assigned duties as a Chaplain's assistant. In May 1991, he was hospitalized for psychiatric symptoms and was transferred to the United States Air Force Medical Center at Wright Patterson Air Force Base (AFB) in Ohio. A May 1991 narrative summary from the medical facility at Wright Patterson AFB contains the Veteran's report that he had been overworked in Saudi Arabia and had to perform a lot of additional duties. It also contains his spouse's report that he had become more and more paranoid and agitated during their 10 year marriage. The hospital summary further contains the Veteran's Commander's report that he had "acted odd from day one." This summary shows that the Veteran refused to take psychotropic medication and had decompensated by week three. He was diagnosed as having schizophrenia, paranoid type. The condition was noted to have existed prior to service, but with "service aggravation." The Veteran was referred to a Medical Evaluation Board (MEB). On file is a June 1991 MEB Report containing a diagnosis of schizophrenia, paranoid type. The MEB noted that the condition existed prior to service, since 1981, and was permanently aggravated by service. This report also shows that the Veteran was referred to the Physical Evaluation Board (PEB). On file is an August 1991 PEB Proceedings report concluding that the Veteran's paranoid type schizophrenia existed prior to his active duty with the Army and that there was no record of an event or incident that caused a worsening of the condition. Hospital records show that the Veteran was transferred from the Allen Park VA medical center (VAMC) in August 1991 where he had been treated for his psychiatric symptoms for approximately 12 weeks, to the Battle Creek VAMC for continued treatment. A September 1991 VA hospital discharge summary from the Battle Creek VAMC notes that the Veteran had been stationed in Saudi Arabia when he began to mentally deteriorate after having been exposed to a great deal of stress which included working long hours consisting of 12 to 14 hours a day seven days a week. The summary notes that throughout that time the Veteran reported that he had seen a large number of Iraqi dead and wounded. The summary also notes that the Veteran's mental deterioration progressed and that he began to have auditory hallucinations along with being verbally out of control at times. He was hospitalized due to these symptoms. Individual psychotherapy treatment records are on file from 1991 to 1993 from the medical facility at Wright Patterson AFB. A VA examiner concluded in April 1996 that the Veteran had experienced an acute episode of psychosis when he was in Saudi Arabia during the Desert Storm operation. He said that the Veteran had been hospitalized several times in psychiatric hospitals since 1994 and had been receiving psychotropic medications (Navane and Cogentin). He reported that the Veteran was stabilized on this regimen and had a full-time job as a machine operator since April 1994. On file is a medical opinion from Dr. T., a licensed psychologist, who performed a psychosocial assessment of the Veteran in February 2010. Dr. T. reported that the Veteran presented with classic symptomatology related to paranoid schizophrenia and that he decompensated while on active duty. He said that the Veteran was eventually released from the military. He stated that certainly working long hours and being under the stress of war could activate or aggravate the Veteran's underlying condition to the point where he had a complete decompensation, and he noted that the Veteran had received treatment for the condition since he got out of service. He went on to opine that based on his clinical interview observations and review of voluminous records it was his professional opinion that more likely than not the Veteran's active military duty aggravated his underlying medical condition (schizophrenia paranoid-type) causing him severe and marked limitations A subsequent opinion was rendered by a VA psychiatric examiner in May 2011 based on his evaluation of the Veteran in August 2010. This examineir negated by aggravation a link between the Veteran's schizophrenia and service. He said that there was no medical evidence that the Veteran's condition was aggravated while he was in service and he noted that he had had three hospitalizations prior to his hospitalization on active duty. He said that the Veteran's condition was not aggravated because of his service for 10 months. He added that the condition was not caused by or a result of his military service. He explained that the Veteran's schizophrenia started when he was 22 year old which is the usual period of time when schizophrenia evolves. At the Board video conference hearing in June 2017, the Veteran's brother testified on the Veteran's behalf. The Veteran's brother said that he was a clinical psychologist who had been in practice for 21 years. He testified that following the Veteran's "psychotic break" during active service there was fearfulness to his well-being that he did not have prior to such service. He also said that the Veteran had shared with him his thinking that he was going to be harmed or attacked. He opined that the Veteran's schizophrenia was not a product of natural progression, but rather had been permanently aggravated by service. He explained that the intensity of symptoms usually diminish as people get older and that they can eventually go off of medication. However, he said that in the Veteran's case the Veteran was in his 60s and would require medication for the rest of his life. He opined that the Veteran's brain had been so affected by his subjective experiences in service by warfare and that these experiences have interfered with his ability to experience the mitigation of those symptoms consistent with schizophrenia. Discussion As a starting point, there is no entrance examination report for the Veteran's period of active service beginning in December 1990. As noted, his Reserve unit was called to active duty in support of Desert Shield. Accordingly, the presumption of soundness does not apply here. In this regard, the presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports." See 38 C.F.R. § 3.304(b). Also, the evidence clearly shows that the Veteran's schizophrenia pre-existed service. Such evidence includes a private hospital record in May 1987 that contains an admitting diagnosis of schizophrenia, paranoid type. In addition, the Veteran, his brother and his representative acknowledged at the June 2017 Board video conference hearing that the condition preexisted service. Thus, the issue to be determined in this case is whether the Veteran's schizophrenia was aggravated by service. A key element here is to this determination is whether the Veteran's schizophrenia underwent a worsening while he was on active duty. If so, then he is entitled to the presumption of aggravation and to service connection absent clear and unmistakable evidence that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Board finds that the Veteran's schizophrenia worsened during his period of active duty. He entered active duty in December 1990 and did not require medical attention for his psychiatric symptoms until after he was hospitalized in Saudi Arabia in May 1991. A discharge summary in July 1991 notes that he had had a "nervous breakdown" in Saudi Arabia, and a VA examiner in April 1996 reported that he had had an "acute episode of psychosis in Saudi Arabia". Moreover, service treatment and personnel records, including a MEB report and PEB report, show that he was discharged from service because of his psychiatric condition and his decompensation. In light of the worsening of the Veteran's schizophrenia in service, he is entitled to the presumption of aggravation. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Accordingly, service connection for his schizophrenia, by aggravation, is warranted absent clear and unmistakable evidence that the worsening was due to the natural progress of the disease. Id. As noted above, clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). Such a standard has not been shown here. Instead, there are differing medical opinions with respect to whether the Veteran's worsening schizophrenia was due to the natural progress of the disease. On the one hand, there is the VA examiner's opinion in May 2011 that that the Veteran's schizophrenia was not aggravated by service. He pointed out that the Veteran had had psychotic breaks prior to active service and thus his psychotic break while on active duty was due to the natural progress of the disease. There is also the PEB which concluded that the Veteran's schizophrenia preexisted service and was not aggravated thereby. The PEB found no record of an event or incident that caused a worsening of the condition. On the other hand, there is the July 1991 hospital discharge summary and the MEB's conclusion that the Veteran's preexisting schizophrenia was aggravated by service. There is also Dr. T.'s February 2010 opinion that more likely than not the Veteran's active military duty aggravated his underlying medical condition (schizophrenia paranoid-type) causing him severe and marked limitations. Lastly, there is the opinion of the Veteran's brother, a clinical psychologist, who opined that the Veteran's schizophrenia was permanently worsened on active duty due to his experiences in a combat zone. The conflicting opinions above are all credible and are all based on the Veteran's medical history. Moreover, they are all supported by sound medical reasoning. In light of these differing opinions, it cannot be said that the evidence is undebatable in showing that the worsening of the Veteran's schizophrenia in service was due to the natural progress of the disease. Accordingly, the Veteran is entitled to the presumption of aggravation and to service connection for schizophrenia. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). ORDER Service connection for schizophrenia is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs