Citation Nr: 21013982 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 19-05 890A DATE: March 11, 2021 ORDER New and material evidence having been received, the claim for service connection for schizophrenia is reopened. Service connection for schizophrenia is granted. FINDINGS OF FACT 1. An April 1979 rating decision denied service connection for schizophrenia. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal. 2. The evidence received since the April 1979 denial relates to unestablished facts necessary to substantiate the claim for service connection for schizophrenia and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s schizophrenia had its onset during his active service. CONCLUSIONS OF LAW 1. The April 1979 rating decision that denied service connection for schizophrenia is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. 2. New and material evidence has been received sufficient to reopen the claim for service connection for schizophrenia. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for schizophrenia have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1978 to January 1979. This current matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2016 rating decision. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran’s claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). New and Material – Schizophrenia A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all the evidence submitted since the last final disallowance of the claim on any basis in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). The Regional Office (RO) reopened and denied on the merits the claim for service connection for schizophrenia. However, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Thus, the Board must initially determine on its own whether there is new and material evidence to reopen the claim before proceeding to the merits of the claim. The pertinent evidence received since the April 1979 denial includes the Veteran’s testimony at a February 2021 Board hearing that he was physically assaulted by several other service members during basic training. Following the assault, he testified that he was hospitalized in the psychiatric ward and diagnosed with schizophrenia. He further testified that during his hospitalization he was physically restrained and heavily medicated. He testified that, since the assault and subsequent hospitalization, he has struggled with reality and how to deal with life. The testimony describes an event not previously of record. Presuming the credibility of the evidence, the record now indicates that the Veteran’s schizophrenia may have been caused, or aggravated, by an in-service event, which is new evidence, not cumulative, and relates to unestablished facts necessary to substantiate the claim. Thus, as new and material evidence has been received, the claim for service connection for schizophrenia is reopened. Service Connection – Schizophrenia Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (Fed. Cir. 2004). The presumption of soundness provides that a 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In a case where there is no preexisting condition noted upon entry into service, a veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). With regard to the existence of a preexisting condition, to be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). A preexisting injury or disease is 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. § 1153; 38 C.F.R. § 3.306(b). This burden of proof must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, 25 Vet. App. at 236-37. “Clear and unmistakable evidence” is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Here, the Veteran’s February 1978 enlistment examination makes no reference to any psychiatric conditions, including schizophrenia, or any other preexisting medical conditions. However, during his discharge proceedings, the Medical Board determined that his schizophrenia existed prior to service and was not aggravated by service. This determination was based on the fact that the Veteran became symptomatic so soon after entry into active duty. The Physical Evaluation Board (PEB) accepted the Medical Board’s determination as proof that the Veteran’s condition existed prior to military service. The Veteran’s service treatment records show that in August 1978 he was diagnosed with schizophrenia and hospitalized for psychiatric care. The treating physician noted that, prior to hospitalization, the Veteran was doing well, with no history of any disciplinary actions against him and no history of psychiatric hospitalizations. The physician reported that, prior to his hospitalization, the Veteran was being counselled about doing his laundry late in the evening when he suddenly became hostile, refused to obey orders, and ultimately required physical restraints. Upon hospitalization, his behavior was described as “markedly regressive.” The physician reported that the Veteran was incontinent of urine, required the staff to feed him, and was unable to participate in any activities. By the fourth day of hospitalization he showed improvement, but the physician noted that the Veteran’s insight into why he was hospitalized was still minimal—he believed he was hospitalized as part of his basic training. In December 2018, the Veteran was afforded a VA examination. At the examination, he denied any history of drug or alcohol abuse, history of mental illness prior to service, and family history of mental illness. He reported that his mental health issues began while he was in service when he was hospitalized on a psychiatric ward after a physical assault by other service members. Further, he reported experiencing symptoms of depressed mood, anxiety, chronic sleep impairment, nightmares, disturbances of motivation and mood, persistent delusions or hallucinations, difficulty in adapting to stressful circumstances, including in a work or work-like setting, and difficulty in establishing and maintaining effective work and social relationships since separation from service. The examiner confirmed the Veteran’s diagnosis of schizophrenia (with paranoid ideation) and opined that his psychiatric disability clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. The examiner’s rationale stated that she concurred with the PEB finding that the Veteran becoming symptomatic so soon after active duty was proof that the condition existed prior to military service. At the February 2021 Board hearing, the Veteran testified about his psychiatric hospitalization while in service. He stated that he was assaulted by fellow service members and that, when he tried to explain his side of the attack, no one believed him. He was then hospitalized, restrained, and heavily medicated. He explained that he has not been able to get past this event and has struggled with mental health issues since he was discharged from service. Based on the evidence of record in the current appeal, the Board finds that the Veteran is entitled to the presumption of soundness. While the Board cannot ignore or disregard the VA examiner’s medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. See Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Veteran’s entrance examination made no notation of schizophrenia or any other possible psychiatric disability, and he was found to be fit for military service. And, despite the PEB and the VA examiner’s opinion that the Veteran’s onset of symptoms so soon after induction to service is proof that the condition pre-dated service, there is no evidence in the file to show that he was ever treated for, or had symptoms of, schizophrenia prior to such service. Thus, there is no clear and unmistakable evidence showing that his schizophrenia existed prior to service. Accordingly, the presumption has not been rebutted, and he is entitled to the presumption of soundness. As there is no clear and unmistakable evidence that his schizophrenia existed prior to service, the question of aggravation is no longer pertinent. Rather, the relevant question is whether there was an in-service incurrence of a disease or injury. In this regard, the record clearly establishes that the Veteran was first diagnosed with schizophrenia in 1978, while on active duty. This diagnosis was later confirmed at the December 2018 VA examination. (CONTINUED ON NEXT PAGE) Therefore, the Board finds that the weight of the evidence supports a finding that the Veteran’s schizophrenia had its onset in service and has continued since then. As such, service connection for schizophrenia is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, Associate 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.