Citation Nr: 1801568	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-31 304	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and paranoid schizophrenia.

3.  Entitlement to a finding of total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. H. Donnelly, Senior Counsel
INTRODUCTION

The Veteran served on active duty with the United States Air Force from October 1970 to June 1975.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs, which denied service connection for PTSD and granted service connection, for the limited purpose of establishing entitlement to treatment, for a mental illness meeting the definition of a psychosis.

Although the Veteran specifically claimed service connection for PTSD, the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  His claim therefore includes one of service connection for the acquired psychiatric condition of paranoid schizophrenia; the RO recognized this to an extent in considering entitlement to treatment for a psychosis.  Schizophrenia is a listed psychosis.  38 C.F.R. § 3.384.

 Because the claim includes consideration of service connection for an acquired psychiatric disorder, the Board has reframed the issue to include reopening of such, as the matter has been finally denied previously.  Irrespective of the RO's action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  Reopening of a claim for service connection for an acquired psychiatric disability was denied in an August 2005 rating decision; an unperfected appeal reopened the claim and denied it on the merits.

2.  Evidence received since August 2005 was not previously considered by agency decision makers, is not cumulative or redundant of evidence already of record, relates to an unestablished fact, and raises the reasonable possibility of substantiating the claim.

3.  Currently diagnosed paranoid schizophrenia is shown to have first manifested in service and to have been continually manifested since that time.


CONCLUSIONS OF LAW

1.  The August 2005 decision denying service connection for an acquired psychiatric disorder is final.  38 U.S.C. § 7105  (2012); 38 C.F.R. § 20.1103 (2017).

2.  The criteria for reopening of a previously denied claim of service connection for an acquired psychiatric disorder are met.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156 (2017).

3.  The criteria for service connection of paranoid schizophrenia, as an acquired psychiatric disorder, are met. 38 U.S.C. §§ 1110, 1112, 1113, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  
Rating actions from which an appeal is not timely perfected become final.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

In connection with the August 2005 decision, the RO found that no nexus was established between diagnosed paranoid schizophrenia and military service.  Since that time, the Veteran has submitted statements from friends and family, as well as his own statements, indicating that his behavior changed while in the service, and those changes have continued since that time.  Further, those same behaviors have been diagnosed as paranoid schizophrenia.

This newly submitted evidence addresses the unestablished fact of nexus, and raises the reasonable possibility of substantiating the claim; reopening is warranted.  This matter must now be addressed on a de novo basis.  Upon consideration of the totality of the evidence of record, the Board finds that service connection for paranoid schizophrenia is warranted.

Service treatment records show that in 1973, the Veteran sought psychiatric treatment for depression, anxiety, and tearfulness; at the time, such was related to marriage problems.  At the time of his separation for, in part "apathy" toward military life, the Veteran again noted anxiety, depression, and trouble sleeping, this time in connection with his career situation.  Drug use was also noted.

Post service medical records indicate that as early as March 1977, schizophrenia was diagnosed by VA doctors; there was some dispute over this, as VA compensation examiners failed to diagnose an acquired psychiatric condition during this period.  Nevertheless, VA has now accepted the 1977 diagnosis.  See November 2011 Rating Decision.  Further, current doctors uniformly agree on that diagnosis, and include the Veteran's history of repeated psychiatric hospitalizations since the late 1970's as part of their discussion and rationales.  None have directly related the current diagnosis to service, however.  In fact, a June 2006 examiner specifically found no relationship between service and current disability.

Since that opinion was rendered, additional evidence has been associated with the file strongly indicating that the Veteran has had the same signs and symptoms of mental illness since service, without remission unless medicated.  Parents and siblings have so reported, and private and VA treatment records corroborate such.  Importantly, at the earliest March 1977 diagnosis of schizophrenia, the doctor endorses this continuity of symptomatology in rendering his diagnosis.

In order to establish service connection on a direct basis, the record must contain competent evidence of: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period.  38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a).  For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  The listed chronic conditions include psychoses, which is further defined in 38 C.F.R. § 3.384 as including schizophrenia.

Therefore, the showing of continuity of symptoms, which doctors have now endorsed as being related to the currently diagnosed paranoid schizophrenia, is sufficient to establish a nexus between the disability and service.  The consistent, competent, and credible lay reports, supported by a long history of psychiatric treatment and hospitalization, are sufficient to establish entitlement to service connection.  This body of evidence outweighs prior medical opinions based on less complete evidentiary records.


ORDER

Service connection for the acquired psychiatric disorder of paranoid schizophrenia is granted.


REMAND

The above grant of service connection for paranoid schizophrenia requires the AOJ to assign a disability evaluation under the criteria set forth in 38 C.F.R. § 4.130.  The assigned evaluation will directly impact the claim for TDIU, as regulations set forth different schedular thresholds for eligibility and the process by which the benefit may be granted.  38 C.F.R. § 4.16.  Further, in light of prior determinations of record regarding the Veteran's entitlement to pension and his competency, it is possible that a schedular total rating, which would render the TDIU claim moot, will be awarded.  Adjudication must be deferred until the outstanding evaluation matter is settled.  Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1. Take appropriate action to implement the above grant of service connection for an acquired psychiatric disorder, to include assignment of the initial disability rating.

2.  After completion of such, readjudicate the question of entitlement to TDIU, if necessary.  If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond.  The case should then be returned to the Board for further appellate review, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

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).




______________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs