Citation Nr: 21063014 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-36 722 DATE: October 12, 2021 REMANDED Entitlement to service connection for schizophrenia with anxiety is remanded. REASONS FOR REMAND The Veteran served on active duty with honorable service from April 27, 1978 to May 7, 1982. He had dishonorable service for VA purposes from May 8, 1982 to September 28, 1983. The Department of Veterans Affairs (VA) is grateful for his service. Entitlement to service connection for schizophrenia with anxiety is remanded. By a December 2020 decision, the Board of Veterans' Appeals (Board) denied service connection for schizophrenia with anxiety. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). The parties agreed to a Joint Motion for Partial Remand (Joint Motion), approved by a July 2021 Court Order, which vacated that portion of the Board's December 2020 which denied service connection for schizophrenia with anxiety and remanded the case for action consistent with the Joint Motion. (The parties did not disturb the Board's December 2020 denial of service connection for hypertension.) The Joint Motion concluded that the Board's denial of service connection for schizophrenia with anxiety was inadequate because the Board had failed to provide adequate reasons and bases. Specifically, the December 2020 decision noted that there was no favorable evidence of a nexus between current disability schizophrenia with anxiety and service, but it failed to address whether a VA examination was warranted to address whether the claimed disability had onset in the Veteran's honorable service period or within the first year following that honorable service or was otherwise causally related to his honorable service, so as to support service connection on a direct or first-year-post-service presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. For reasons addressed below, the Board concludes that the Veteran should be afforded a VA examination to address these questions. On multiple prior occasions in the decades following service, the Veteran was denied service connection for a psychiatric disability. This included denials by the Board in February 1994 and February 2005. However, previously unobtained service treatment records were added to the claims file in February 2014, and hence the Veteran's psychiatric disorder claim was reviewed de novo, pursuant to 38 C.F.R. § 3.156 (c)(1). When 38 C.F.R. § 3.156 (c) is invoked, "the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted." Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011); Emerson v. McDonald, 28 Vet. App. 200 (2016) (clarifying that VA must reconsider a claim when relevant service records are received any time after the original denial). The status of the Veteran's periods of service were helpfully reviewed by the Veteran's authorized representative in an October 2015 Statement of Accredited Representative in Appealed Case (in lieu of VA Form 646): The veteran has been recognized as having had active service from April 1978 to May 1982. This period has been recognized on the basis that in April 1978 the veteran enlisted for four years with a discharge occurring in December 1981 for purposes of immediate reenlistment. However, the scheduled discharge date for the first period of service was April 1982, with that enlistment being extended involuntarily to May 7, 1982, due to time lost. Thus, even though his discharge was in December 1981, his active service was recognized through May 1982 since he would have been eligible for a discharge under other than dishonorable conditions at that time except for the intervening reenlistment in December1981. The VA determination made on 9/1/1987, determined although the veteran's period of service from April 27, 1978, to September 28, 1983, is a bar, due to repeated and persistent misconduct, it is held that the veteran had honorable service with a conditional discharge on the scheduled discharge for the period from April 27, 1978, to May 7, 1982, and is eligible for any VA benefits which may be payable based on this period of service. The veteran's period of service from May 8, 1982, to September 28, 1983, was terminated under conditions which preclude the payment of VA benefits. The veteran is entitled to health care under Chapter 17, Title 38 USC for any disabilities determined to be service connected. As the Board noted in its prior decision in February 2005, In this case, the RO has made numerous attempts to locate the veteran's service medical records. The RO submitted requests to the National Personnel Records Center (NPRC) in December 1985 and September 1987, asking for all available service medical and dental records and the report of separation of service for the veteran. The veteran's enlistment performance records, administrative separation processing records and two service medical records were subsequently associated with the claims folder. The September 1987 search report specifically noted that "after a thorough search of the NPRC and Navy files, service medical records could not be located." The RO sent the veteran a letter in January 1988 explaining that the RO was having difficulty locating the veteran's service medical records and noted that service personnel records indicated that he had kept his health records. The veteran submitted a letter in June 1988, indicating that he did not have his service medical records. The Veteran's service records from his period of service from April 1978 to May 1982 do not reflect treatment for a psychiatric condition other than substance abuse, and there are no records supporting diagnosis or treatment for a psychiatric disorder other than substance abuse during that period of service or within the first year of following April 1982. While service treatment records added to the claims file in February 2014 do reflect treatment in November 1982 for bizarre behavior and incoherence, and in February 1983 for concern about being crazy and hearing voices, the Veteran conceded a history of PCP abuse. A July 1983 emergency room visit noted that the Veteran was "well known to psychiatry with multiple hospital admissions for one year for PCP abuse." The Veteran's symptoms resulted in an assessment of probable PCP abuse at that time. Similarly, in a July 1985 emergency care visit, the Veteran was observed to be confused, of labile affect, and uncooperative; the treating clinician assessed probable PCP abuse. In an October 2020 brief, the Veteran's authorized representative pointed to diagnoses of schizophrenia made in December 1984 at Tuscaloosa, Alabama, and diagnosis again of schizophrenia when hospitalized in Chicago in December 1985. While these records are not within the first year following the Veteran's honorable period of service and hence do not support the claim on a first-year-post-service presumptive basis pursuant to 38 C.F.R. §§ 3.307, 3.309, they do raise a question whether psychiatric disability not due to PCP abuse developed in service or is causally related to service, potentially to support the claim on a direct basis. That question not having been adequately resolved, the Board now concludes that a VA examination opinion is warranted. The matter is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertaining to the disabilities at issue. 2. To the extent feasible, reasonable efforts should then be undertaken to afford the Veteran an in-person examination by an appropriate mental health clinician, to determine the nature and etiology of any mental disorder present during the claim period. If an in-person examination cannot be conducted, then a records-based examination should be performed. The examiner should carefully review the record and indicate on the examination report that it has been reviewed. The examiner should be advised that while most of the Veteran's service records are missing and cannot be obtained, some service treatment records were added to the claims file in February 2014. If feasible, any indicated tests or studies should be performed. The examiner should note that, for VA benefits purposes, the Veteran had an honorable period of service from April 27, 1978 to May 7, 1982, followed by a dishonorable period of service from May 8, 1982 to September 28, 1983. The examiner is to be advised that this case is complicated by substance abuse which the Veteran reported while in the military, in particular PCP abuse and alcohol abuse, as well as post-service poly-substance abuse. Service treatment records from the Veteran's second, dishonorable period of service reflect medical findings that symptoms which might appear to reflect psychosis were attributed to PCP abuse. The examiner should further note that notwithstanding the history of polysubstance abuse, the Veteran was also diagnosed with paranoid schizophrenia subsequently in the 1980s. The examiner must accordingly carefully review available records including in particular those from service and proximate to service, and should attempt to discern whether these records, together with the Veteran's statements and other evidence of record, ultimately support onset of a psychiatric disability, as opposed to effects of substance abuse, either during the Veteran's honorable period of service or within the year following that honorable period of service, or otherwise support a link between a psychiatric disability and his honorable period of service. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. Separately for each psychiatric disorder present during the claim period, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disorder developed during the Veteran's period of honorable service from April 27, 1978 to May 7, 1982, or is causally related to an event, disease, or injury during that honorable period of service; and, separately, whether it is at least as likely as not (50 percent or greater probability) that the disorder was present to a disabling degree within the first year following that period of honorable service. The examiner should provide a complete explanation, supported by evidence and medical knowledge, for each opinion the opinion expresses. 3. Thereafter, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.