Citation Nr: 21076627 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 20-05 739 DATE: December 27, 2021 ORDER Service connection for psychiatric disability, to include schizophrenia, is granted. FINDING OF FACT 1. The medical evidence clearly and unmistakably shows that the Veteran's psychiatric disability, to include schizophrenia, existed prior to service. 2. However, the medical evidence does not clearly and unmistakably show that the Veteran's psychiatric disability, to include schizophrenia, was not aggravated during service. CONCLUSION OF LAW The criteria for showing a service connection for psychiatric disability, to include schizophrenia, have been met. 38 U.S.C. §§ 1111, 1112, 1131. 5107(b); 38 C.F.R. § 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from September 2007 to November 2007. He received an "uncharacterized" discharge. This matter comes to the Board of Veterans' Appeals (Board) following a Board remand in September 2021 based on an appeal from an August 2018 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board also previously remanded this case for further development in April 2021. The most-recent Board remand was based on contradictory statements from the VA examination: To that end, the Board notes that despite being diagnosed with "psychiatric" condition and "bipolar disorder" during service, his post-service records reflect a diagnosis of schizophrenia. Further, the Veteran was afforded a VA examination in June 2021indicating the schizophrenia "clearly and unmistakably" pre-existed service, but with regards to aggravation, the examiner's resulting opinion is contradictory and, ultimately, insufficient to render a decision at this time. In one part of the report, the examiner opined that "there is no evidence in Service Treatment Records (STRs) and Veteran does not present any evidence during the interview to suggest that the symptoms were exacerbated by military service." See June 2021 Medical Opinion for Direct Service Connection. Conversely, the examiner also opined that "it is at least as likely as not (50 percent or greater probability) that the condition increased in severity during active service." See Medical Opinion for Aggravation of a Condition that Existed Prior to Service. Board Decision on Remand, September 2021. In October 2021, in accordance with the remand, the Veteran was re-examined and a new C&P examination was completed. The C&P examiner diagnosed the Veteran with schizophrenia and determined the claimed condition was "less likely than not (less than 50 percent probability)" incurred in or caused by in-service injury, event or illness. The C&P examiner concluded, "There is no evidence in records or provided by the Veteran to suggest the Veteran's diagnosis is related to his military service." Regarding the apparent inconsistency between this finding and the prior examination, the C&P examiner stated there was a typographical error in the first examination: "There is a typo in the original medical opinion. Both opinions should have stated the Veteran's diagnosis of Schizophrenia is NOT related to or exacerbated by military service." The Veteran acknowledges that his mental health disorder existed prior to service. However, he asserts that his condition was aggravated during his period of active-duty service. In order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the military, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Notably, when a veteran enters the military without a noted preexisting condition, he or she is presumed to have entered service in sound condition. 38 U.S.C. § 1111. If the presumption of soundness applies, an injury or disease first noted in service is presumed to have occurred in service unless "clear and unmistakable evidence" demonstrates that it existed before acceptance and enrollment and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Vanerson v. West, 12 Vet. App. 254, 258 (1999) (explaining that clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood"). Service aggravation is shown by an increase in disability during service that is not determined to be the result of the natural progress of the condition. According to 38 C.F.R. § 3.304(b), the term "noted" indicates only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). In this case, there is no evidence that the Veteran received a medical waiver for his psychiatric condition or any other issue. Rather, the Veteran's July 2007 entrance examination merely noted a history of psychiatric illness and that the Veteran said he was previously disqualified from active service in 2003 or 2004 due to a psychiatric illness. The Veteran's credit, it appears he freely disclosed his mental health history, to include at least one hospitalization and mental health prescription medication. The Veteran was given a July 2007 psychiatric examination as part of his enlistment examination. The examiner concluded the Veteran was "clinically alert, responsive, articulate" and "goal directed." He also wrote the Veteran was in "good physical/emotional shape." At the end of the report, the examiner wrote, "confident he will adapt well." The Board acknowledges that there are references in the Veteran's personnel file to a "permanent medical disqualification." However, there is no evidence that a waiver was ever sought or approved. As a result, the Board must conclude that the Veteran disclosed his psychiatric history and the was cleared for enlistment. As a result, the Board finds the presumption of soundness attaches as to this condition. 38 U.S.C. § 1111; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because the presumption of soundness applies, the burden of proof shifts to the VA to show that the condition did not worsen during service. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Horn v. Shinseki, 25 Vet. App. 231(2012). As discussed above, in meeting this burden, the VA must show "clear and unmistakable evidence." In this case, the Veteran's service treatment records show that he entered service in September 2007 on medication for his preexisting condition prior to arriving at boot camp. While there are references to a possible enlistment waiver, there is no waiver in this record and the entrance examination indicated (among other things) that the examiner believed the Veteran would "adapt well" to service. The Board carefully considered all evidence about the Veteran's psychiatric condition that might favor denying service connection. For example, the Veteran started showing symptoms of paranoia and disorganized thinking after completing 60 training days of boot camp and was admitted to an inpatient psychiatric ward for observation and stabilization. In November 2007, he was discharged with an annotation for "erroneous enlistment" and diagnosed with "Bipolar Disorder, EPTS [existed prior to service]." The Board considered whether this relatively short period of active-duty service would warrant denying service connection. Admittedly, the Veteran's active-duty service was less than 90 days, he showed symptoms of paranoia and disorganized thinking approximately 60 days into initial training, and there is no indication that any specific incident, injury, or event occurred during his three months on active duty. In addition, the C&P examiner determined it was "less likely than not" that the Veteran's mental health conditions were incurred in or caused by in-service injury, event or illness, and that "[t]here is no evidence in records or provided by the Veteran to suggest the Veteran's diagnosis is related to his military service." However, the law requires more than a "less likely than not" determination. When the presumption of soundness applies (as it does here), the standard is "clear and unmistakable evidence" and the burden of proof is on the VA. Applying that standard and that burden, the Veteran was cleared for entry into active service and the medical evidence presented is not "clear and unmistakable" that the Veteran's psychiatric disability was not aggravated by service. For the reasons set for forth above, the claim for service connection is granted. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Neill, Steven C. 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED