Citation Nr: 21022011 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 04-04 156 DATE: April 14, 2021 ORDER A 40 percent rating for duodenal ulcers for the entire period on appeal is granted. The request to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include schizophrenia is granted. Service connection for paranoid schizophrenia is granted. FINDINGS OF FACT 1. Throughout the pendency of the claim, the Veteran’s duodenal ulcers are productive of moderately severe symptoms. 2. The Veteran did not appeal an August 1972 rating decision which denied service connection an acquired psychiatric disorder, but evidence received since that decision raises a reasonable possibility of substantiating the claim. 3. The weight of the evidence supports a finding that the Veteran’s paranoid schizophrenia is related to active service. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating for the entire period on appeal, for duodenal ulcer are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code (DC) 7305, 7307. 2. The criteria for reopening a previously denied claim for service for an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for paranoid schizophrenia are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1970 to September 1971. The extensive procedural history of this case has been set forth in prior Board decisions and will not be repeated except as needed to explain the procedural posture of this case. In part, the Board most recently remanded the case for further development in December 2018. That development was completed, and the case has since been returned to the Board for appellate review. While the case was in remand status, the evaluation for duodenal ulcer was increased to 60 percent, effective July 11, 2019. As this is the highest available rating for this disability, the Board will only consider whether a rating in excess of 30 percent is warranted for the Veteran’s duodenal ulcer for the period on appeal prior to July 11, 2019. In December 2007, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) and provided testimony regarding his duodenal ulcer. A transcript of the hearing has been associated with the claims file. In January 2021, the Board notified the Veteran that the VLJ who presided over his hearing had retired and offered an opportunity to have another hearing before a different VLJ. In February 2021, the Veteran declined a new hearing. Therefore, the Board will proceed to render a decision based on the evidence of record. Increased Rating Disability ratings are determined by applying the criteria in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. For any rating claim, separate (staged) ratings may be assigned for separate periods, based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Higher rating for duodenal ulcer prior to July 11, 2019 In September 2017, pursuant to an August 2017 Board decision, the rating for duodenal ulcer with gastritis was increased to 30 percent effective January 6, 2002. The rating was assigned pursuant to DC 7307, hypertrophic gastritis. 38 C.F.R. § 4.114, DC 7307. In June 2020, the rating was increased to 60 percent effective July 11, 2019. The DC was changed to DC 7305, duodenal ulcer. 38 C.F.R. § 4.114, DC 7307. The Board notes that 60 percent is the highest rating available under both DC 7305 and 7307. Thus, the Board will only address whether a rating higher than 30 percent is warranted prior to July 11, 2019. Under DC 7305, a 40 percent rating is warranted for moderately severe symptoms manifested by symptoms less than “severe,” but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. A maximum 60 percent rating is warranted for severe symptoms associated with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, DC 7305. Under DC 7307, if hypertrophic gastritis is chronic with severe hemorrhages, or large ulcerated or eroded areas, the rating is 60 percent. If it is chronic with multiple small eroded or ulcerated areas, and symptoms, the rating is 30 percent. 38 C.F.R. § 4.114, DC 7307. During the December 2007 hearing, the Veteran reported flareups from his duodenal ulcer which caused pain mostly rated level 9 out of 10, and sometimes level 10; blood in his stools; diarrhea that came up through the mouth; and daily vomiting. He testified that the pain level did not go below 7 out of 10. The medical evidence shows that during the pendency of the claim, the Veteran’s service-connected stomach disability manifests in numerous symptoms, such as rectal bleeding, pain, vomiting, chronic indigestion, which are treated with medication. In this regard, a February 2002 VA treatment record notes that the Veteran had anemia. A September 2002 VA treatment record shows that because the Veteran had rectal bleeding, he underwent an esophagogastroduodenoscopy (EGD) which revealed gastritis with erosions. A May 2004 VA treatment note reflects diagnoses of peptic ulcer disease, gastroesophageal reflux disease, and histories of anemia and abdominal pain. The Veteran underwent multiple VA examinations, to include in October 2000, February 2003, and May 2007. Consistent throughout the examinations is the Veteran’s report of abdominal pain and vomiting.; however, the evidence shows fluctuating diagnoses of anemia. The Board notes that the Veteran lost some weight as he was classified as obese and was advised to lose weight; however, the evidence does not show that he had weight loss due to his stomach disability. The evidence does show fluctuating diagnoses of anemia, though. There is no clear finding of big or small ulcer after 2002, and the finding of erosions at the time of the EGD in September 2002 encompasses multiple small eroded or ulcerated areas and symptoms. Based on the probative evidence outlined above, the Board finds that the Veteran’s service-connected duodenal ulcer most closely approximates the 40 percent rating under DC 7305 during the period on appeal. The evidence does not show severe symptoms associated with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health to warrant the next higher 60 percent rating during the appeal period. The evidence also does not show that the Veteran had hypertrophic gastritis that was chronic with severe hemorrhages, or large ulcerated or eroded areas to warrant the next higher 60 percent rating under DC 7307. When resolving reasonable doubt in the Veteran’s favor, the Board finds that a 40 percent rating under DC 7305 is warranted during the appeal period. A 40 percent rating, but no higher, is granted effective January 6, 2002. New and Material Evidence Generally, a claim that has been denied by an unappealed decision by VA may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened, and the former disposition reviewed. 38 U.S.C. § 5108. "New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means 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 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). This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly-submitted evidence is presumed, though not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). Acquired psychiatric disorder An August 1972 rating decision denied service connection for an acquired psychiatric disability (then identified as antisocial personality, dyssocial personality, mental deficiency, and schizophrenia) on the basis that it existed prior to service and was not aggravated by service beyond “a normal degree.” The evidence of record at the time of the August 1972 rating decision included the Veteran’s service treatment records, VA treatment records, and lay evidence submitted by the Veteran’s mother. Since the August 1972 rating decision, the Veteran submitted a November 2020 opinion by a psychologist in support of his claim. This opinion supports that the Veteran has a current diagnosis of schizophrenia which she opined did not clearly and unmistakably preexist service, and also adequately supports a link between the Veteran’s current condition and service. The November 2020 opinion is new and relevant because it supports that there is a nexus between the Veteran’s current psychiatric disorder and his service. Thus, the new evidence relates to an unestablished fact necessary to substantiate the claim, and it raises a reasonable possibility of substantiating the claim. Accordingly, the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service Connection As the claim is reopened, the Board will now proceed to address the reopened psychiatric claim on the merits. The Veteran is not prejudiced in the Board proceeding, given the beneficial outcome of the reopened claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399-400 (2010). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, a veteran must show: “(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”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Schizophrenia A veteran is presumed sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§ 1111; 38 C.F.R. § 3.304(b). Accordingly, if no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The regulations express that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b) and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). Moreover, the defect, infirmity, or disorder must be detected and noted at the entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement, or opinions. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Court has held that lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (stating that a lay person’s account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe, 7 Vet. App. at 246 (1994) (finding that supporting medical evidence is needed to establish the presence of a preexisting condition). When no preexisting condition is noted upon entry into service, the Veteran is presumed sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran’s disability both preexisted and (2) was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress” of the preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C. § 1111, the Veteran’s claim is one for service connection. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran’s enlistment examination and report of medical history in January 1970 are silent for psychiatric disorders. In February 1970, he was transferred to the stockade because he killed a staff sergeant and then admitted to the hospital for a sanity evaluation. The evidence shows that a June 1970 Sanitary Board Proceeding report showed that the Veteran was diagnosed with chronic, social dyssocial personality manifested by extremely low frustration tolerance, impulsive behavior, manipulativeness, negativism, hostility, and poor adjustment to urban society. The report also shows that the disorders existed prior to service and were not aggravated by service. Although it was noted that the Veteran’s mother telephonically reported that the Veteran “never could think right” and recalled childhood incidents such as being destructive with toys and being cruel to animals, the Board notes that the record contains no medical evidence that the Veteran had any psychiatric disorders that preexisted service. An October 2000 VA examination summarized the Veteran’s 1970 hospitalization report. The report described the Veteran hostile, antagonistic, suspicious, and silly at times. The examiner noted that psychological testing suggested paranoid schizophrenia although the sanity panel’s opinion was that the Veteran had dyssocial personality and mental deficiency. The examiner reviewed the record, to include service treatment records; multiple hospitalizations for psychiatric disorders; letters from family members and a private physician noting significant psychiatric problems since service and diagnosed the Veteran with paranoid schizophrenia. The examiner did not provide a nexus opinion; however, she opined that the relationship between currently diagnosed paranoid schizophrenia and active service should be reconsidered because she was concerned that the Veteran’s obnoxious, oppositional and demanding behavior that is evident during active illness and the circumstances surrounding the killing of the staff sergeant in service may have adversely affected the disposition of the Veteran’s service connection claim. The Board finds the evidence does not clearly and unmistakably demonstrate that a psychiatric disorder, to include schizophrenia preexisted service. A psychiatric disorder was not noted at entry into service. While the Veteran’s mother reported that the Veteran “never could think right”, this history does not constitute a notation at entry as lay statements such as this concerning a preexisting condition are not sufficient to rebut the presumption of soundness. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability both preexisted service and was not aggravated. The evidence does not clearly and unmistakably show that a psychiatric disorder preexisted service as the lay evidence alone is insufficient to show that one clearly and unmistakably preexisted service. Additionally, there is no medical opinion that a psychiatric disorder clearly and unmistakably preexisted service. In contrast, a November 2020 private psychologist opined that paranoid schizophrenia did not clearly and unmistakably preexist service. She reviewed the record, to include STRs, VA treatment records, the October 2000 VA examination, and written statements from the Veteran and his mother. She noted that no medical evidence documents psychiatric treatment or a diagnosis of a psychiatric disorder that precedes service and concluded that paranoid schizophrenia developed in service. As there is no clear and unmistakable evidence that schizophrenia preexisted service, the presumption of soundness is not rebutted and the Board will consider the Veteran’s claim as one for service connection, rather than one based on aggravation of a pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Based on a review of the evidence, the Board finds that service connection for paranoid schizophrenia is warranted. As noted above, the Veteran is presumed sound at entry into service in 1970 and the evidence shows that an acquired psychiatric disorder was noted during the period of service. The record also includes a current diagnosis of paranoid schizophrenia. The Board notes that the VA sanity board proceeding opinion indicating that a psychiatric disorder preexisted service and was not aggravated by service but finds this opinion is not probative as it did not address the condition under the appropriate legal standard. The Board finds the October 2000 VA examination and the November 2020 private examination report that determined the Veteran’s paranoid schizophrenia did not clearly and unmistakably preexist service are more probative. The claim for service connection for paranoid schizophrenia is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.