Citation Nr: 21009935 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-38 220 DATE: February 23, 2021 ORDER The petition to reopen the previously-denied claim to establish service connection for an acquired psychiatric disability (claimed as posttraumatic stress disorder (PTSD) and paranoid schizophrenia) is granted. Entitlement to service connection for paranoid schizophrenia is granted. FINDINGS OF FACT 1. In a March 1998 decision, the Board denied the Veteran’s petition to reopen his previously-denied claim to establish service connection for PTSD, and the decision was not appealed. 2. Evidence received since the Board’s final March 1998 decision raises a reasonable possibility of substantiating the issue to establish service connection a psychiatric disability. 3. Resolving all reasonable doubt in the Veteran’s favor, paranoid schizophrenia initially manifested during the Veteran’s active duty. CONCLUSIONS OF LAW 1. The March 1998 Board decision is final with respect to the petition to reopen the Veteran’s previously-denied claim to establish service connection for PTSD. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. 2. Evidence received to reopen the issue of entitlement to service connection for a psychiatric disability, is new and material, and the issue is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria to establish service connection for paranoid schizophrenia have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1976 to March 1979. He also had additional service of an unverified nature and duration in the Marine Corps Reserves. This matter comes to the Board of Veterans' Appeals (Board) from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In his substantive appeal, the Veteran requested to participate in a Board hearing conducted by a Veterans Law Judge (VLJ) via videoconferencing equipment. The Board scheduled such hearings to take place in June 2019 and March 2020; however, the Veteran did not report for these hearings, and neither he nor his accredited representative has provided good cause for his failure to appear Accordingly, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d). In light of the Board’s fully favorable dispositions, the Veteran is not prejudiced by these determinations. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Characterization of the issues on appeal As will be fully articulated below, the Veteran has been seeking to establish service connection for a psychiatric disability, variously claimed as “a nervous condition,” PTSD, and schizophrenia, since May 1986. The AOJ and Board have denied such in several decisions that have varied regarding the characterization of the disability at issue. In sum, while the Veteran has consistently claimed to have incurred PTSD during his active duty, VA and private treatment records consistently show that, while such a diagnosis has been discussed, the Veteran’s symptoms are more consistent with a diagnosis of paranoid schizophrenia. In light of the fact that the prior AOJ and Board decisions have considered diagnoses of PTSD and paranoid schizophrenia in the adjudication of the Veteran’s former claims and appeals, the Board has expanded the Veteran’s current petition to reopen to include any psychiatric disability considered by the Board in the most recent final denial, which is dated in March 1998. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff’d, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012). Again, as the Board’s disposition in this matter is fully favorable, he is not prejudiced by the Board’s actions in this regard. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). 1. The petition to reopen the previously-denied claim to establish service connection for an acquired psychiatric disability (claimed as PTSD and paranoid schizophrenia) is granted. Pertinent procedural regulations provide that “[n]othing in [38 U.S.C. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C. § 5108].” 38 U.S.C. § 5103A (f). Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Schizophrenia is a psychosis. 38 C.F.R. § 3.384. If a chronic disease, such as a psychosis, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). New evidence means existing evidence not previously submitted to VA. 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). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (the Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2012). Analysis Pertinently, the Veteran’s petition to reopen his previously-denied claim to establish service connection for PTSD was denied in the final March 1998 Board decision because evidence of record did not reflect that the Veteran had submitted evidence of an in-service stressor event or a diagnosis of PTSD since the final May 1994 Board decision, which had denied the same. The March 1998 Board decision is final with respect to this issue, as the Veteran did not request reconsideration or file a timely appeal to the Court. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. Throughout the pendency of the current appeal, the AOJ has stated that the Veteran’s previously-denied claim has not been reopened, and thus, such has not been considered on the merits. Regardless, the Board is not bound by those determinations as to whether the issues should be reopened, and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The bases of the prior final by the Board in March 1998 are articulated, above. In order for the issues to be reopened, evidence must have been added to the record since the March 1998 Board decision that addresses these bases. Pertinently, in an August 2011 statement, the Veteran reported that he began experiencing psychiatric symptoms, particularly nightmares and chronic sleep impairment, during active duty, and that these symptoms may be early manifestations of a psychiatric disability that persists to the present, whether such is labeled as PTSD or paranoid schizophrenia. The Board concludes that the above evidence is “new,” as it had not been previously considered by VA at the time of the March 1998 Board decision, and “material” as it raises the reasonable possibility of substantiating the previously-denied issue. The Board thus finds that new and material evidence has been submitted to reopen the issue to establish service connection for a psychiatric disability since the Board’s prior final denial in March 1998. On that basis, the issue is reopened. 2. Entitlement to service connection for paranoid schizophrenia is granted. The governing laws pertinent to establishing service connection for psychiatric disabilities, including PTSD and schizophrenia, have been recounted above and need not be repeated. The Veteran’s service treatment records are unremarkable for contemporaneous reports or markers of psychiatric symptoms, aside from a 28-day period of being absent without leave (AWOL) in late-1975. Shortly after his separation from active duty in March 1979, the Veteran was arrested for driving while intoxicated, and he was ordered by a Court to complete alcohol and psychological counselling. Records associated with these counselling sessions show that the Veteran started drinking excessively upon separation from the Marine Corps, and while his behavior was noted to be “bizarre” and “odd” in some respects, the psychologist opined that such did not show clinical depression or psychosis. By October 1986, around the time that the Veteran began pursing the benefits subject to the current appeal, his mental state had deteriorated to the point where his mother sought to have him institutionalized for fear that he would hurt himself or others. Private treatment records from the O. G. Center, Inc. from April 1987 to July 1987 reflect psychiatrists’ notations concerning the Veteran’s homicidal ideation, delusions, unusual appearance, and bizarre affect. These records reflect the Veteran’s disjointed and imagined claims of being concurrently employed by several branches of the Federal Government, murdering all members of his step-father’s family, and rescuing several prisoners of war while serving in the Republic of Vietnam. After much discussion, collaboration, and assessment, the psychologists and psychiatrists determined in July 1987 that the Veteran’s psychiatric symptoms were attributable to a psychosis, notably paranoid schizophrenia. Shortly thereafter, the Veteran was temporarily institutionalized in a private facility who transferred his care to a VA Medical Center. The Veteran has received psychiatric treatment from VA, to include antipsychotic medication and counselling, since late-1987. In a March 1988 decision, the Veteran was granted disability benefits from the Social Security Administration (SSA) due to the effects of paranoid schizophrenia. A May 1988 VA General Medical Examination report reflects that the Veteran’s psychiatric symptoms persisted despite his antipsychotic medications. While he denied experiencing delusions and hallucinations, the Veteran reported exploits during and since service were found to be delusional by the VA examiner due to the grandiose and incredible nature of the claims, to include transporting over one million dollars in payroll checks for the Marine Corps while stationed in the Republic of Vietnam and using an AK-47 to shoot a Saudi police officer who was wearing a heroine belt while he was stationed in Okinawa, Cambodia, or Laos. Notably, the Veteran’s mother escorted him to the May 1988 VA examination, and she reported to the examiner that his psychiatric symptoms began after his return from active duty. She recounted that the Veteran put heavy curtains on his bedroom windows and stayed in the dark room without contact for days. When he did leave his room, he would not engage with others. The examiner diagnosed paranoid schizophrenia but did not comment on the date of initial onset or etiology of the disability. The record reflects that the Veteran continued to experience severe psychiatric symptoms while pursing the benefits subject to the present appeal. VA and private treatment records reflect that the Veteran fervently pursued a diagnosis of PTSD in support of his claims and appeals; however, while such a diagnosis was discussed, all VA and private clinicians who assessed the Veteran’s psychiatric state confirmed a diagnosis of paranoid schizophrenia. In support of these pursuits, the Veteran underwent a private psychiatric evaluation in July 1996, and the report of this examination reflects his continued claims that he incurred PTSD due to incredible in-service events. Critically, the private psychologist, Dr. B.R.B., ultimately opined that, while the Veteran’s reported in-service stressor events were not believable, it was “quite likely that [the Veteran] had a premorbid tendency for schizophrenia[,] and that the stress of the war exacerbated his condition.” The Board notes that the Veteran’s voluminous VA treatment records reflect that he has continued to receive psychiatric treatment throughout the pendency of the present appeal, to include no fewer than six periods of inpatient hospitalization due to his schizophrenia. These records are replete with the Veteran’s repeated delusions of serving a 64-day period in the Republic of Vietnam, being concurrently employed by several Federal governmental agencies, rescuing prisoners of war in Laos while working for the Federal Bureau of Investigation, and other claims that challenge the boundaries of reality. In view of above, the Board concludes that the most probative evidence of record is at least in equipoise concerning whether the Veteran’s paranoid schizophrenia initially manifested during his active duty. Indeed, as recounted above, the only medical professional who broached the subject of the date of initial onset of the Veteran’s paranoid schizophrenia opined that such “quite possibly” manifested during active duty. While the Board notes that the probability of this opinion is not pristinely stated, the conclusion is bolstered by the August 1979 records showing that the Veteran began exhibiting and experiencing psychiatric symptoms, and self-medicating such with alcohol, during the initial post-service year. As such, the Board will confer the doctrine of reasonable doubt in the Veteran’s favor, and after doing so, concludes that service connection for paranoid schizophrenia is warranted. Ortiz v. Principi, 274 F.3d 1361 (2001). See also, Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). As a final note, the Board observes that the Veteran appears to be intent on establishing service connection for PTSD. In this respect, as noted throughout this decision, while this diagnosis has been considered and discussed, the overwhelmingly predominant conclusion of the VA and private psychiatrists and psychologists who have evaluated the Veteran is that his psychiatric symptoms do not meet the criteria for a diagnosis of PTSD. Nonetheless, by virtue of this decision, the Veteran’s service-connected paranoid schizophrenia will be evaluated under the same criteria as all other acquired psychiatric disabilities, to include PTSD. As such, he will receive VA compensation for his psychiatric symptoms notwithstanding the underlying diagnosis. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel 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.