Citation Nr: 21031620 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-08 589 DATE: May 24, 2021 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is reopened. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is denied. FINDINGS OF FACT 1. In a December 1957 rating decision, the RO denied service connection for a neuropsychiatric condition. The Veteran did not appeal that decision or submit new and material evidence within one year thereafter. 2. The evidence received since the December 1957 rating decision, by itself or in conjunction with previously considered evidence, is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. 3. The preponderance of the evidence is against finding that a current acquired psychiatric disorder, to include schizophrenia, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The December 1957 rating decision denying service connection for a neuropsychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the December 1957 rating decision is new and material as to the claim for service connection for an acquired psychiatric disorder, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for an acquired psychiatric disorder, to include schizophrenia, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1956 to October 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis Initially, the Board notes that claims that are based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (noting that a newly diagnosed psychiatric disorder (e.g., PTSD, even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). Here, the Board finds that the claims are not separate and distinct. The Veteran was diagnosed with schizophrenic reaction in-service and was medically discharged in October 1957. He then filed a claim in October 1957 for a neuropsychiatric disorder which was denied in December 1957. The RO specifically considered the diagnosis of schizophrenic reaction during service which was determined to be a preexisting condition. See December 1957 rating decision. The Veteran filed a new claim in October 2018 for service connection for schizophrenic reaction. The Board finds that under the circumstances of this case, the appropriate action is to reopen and expand the service connection claim on appeal to include all current acquired psychiatric disorders for which the Veteran has been diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). New and Material Evidence In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. The RO previously considered and denied a claim for service connection for an acquired psychiatric disorder (claimed as neuropsychiatric disorder) in a December 1957 rating decision. In that decision, the RO found that the disorder preexisted service and was not aggravated by service. The Veteran was notified of that decision and of his appellate rights, but he did not timely appeal the determination. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Therefore, the December 1957 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. At the time of the December 1957 rating decision, the evidence of record included the Veteran's service treatment records, service personnel records, and a November 1957 VA examination report. The evidence received since the December 1957 rating decision includes VA treatment records, a November 2018 VA examination report, and lay statements. This evidence establishes the existence of other psychiatric conditions. This evidence was not previously considered by the RO, relates to an unestablished fact necessary to substantiate the claim, and could reasonably substantiate the claim were it to be reopened by triggering VA's duty to assist. See Shade, 24 Vet. App. at 117-18. Thus, the Board finds that this evidence is both new and material, and the claim for service connection for an acquired psychiatric disorder, to include schizophrenia, is reopened. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As psychosis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the DSM-V (Fifth Edition). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). In this case, the Veteran's claim was certified to the Board in March 2020; therefore, the regulations pertaining to the DSM-V are for application. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disorder, to include schizophrenia. The service treatment records document suicide attempts in May 1957 and July 1957. He was diagnosed with schizophrenic reaction, chronic, moderate, and declared medically unfit for further service. A November 1957 VA examination noted improvement. He remained reclusive and withdrawn but was no longer depressed. He told the examiner that he was much happier since being back home and considers his mental illness to have "cleared up." He displayed flat affect and lack of insight but denied any hallucinations, delusions or ideas of reference. He denied thoughts of death. See November 1957 VA examination report. Post-service medical records document periods of treatment related to life stressors, including financial stressors and the death of his wife in February 2018. See February-March 2015, April 2018, August-September 2018 VA treatment records. In April 2018, he was diagnosed with uncomplicated bereavement. In September 2018, he was diagnosed with adjustment disorder with depressed mood due to the recent death of his wife of 64 years. However, mental status examinations were essentially normal with no evidence of psychosis, mania, or thought disorder. See September 2018 VA treatment records. The Veteran was also diagnosed with "unspecified depressive disorder" after seeking treatment for "depressive symptoms secondary to financial stressors and concerns about his perceived role as a provider for his wife." The Veteran was afforded a VA examination in connection with the claim for service connection for an acquired psychiatric disorder in October 2018. The Veteran told the examiner that the suicide attempt in service was a "misunderstanding." He explained that he had surgery to remove one of his testicles and was prescribed pain medication which he mistakenly believed he was supposed to take all at once. The next morning, he could not be waked, and the doctors thought he had tried to commit suicide. After service, he worked at a grocery store for 15 years until it closed, then he went to work for a bank where he was in charge of building maintenance. He worked at the bank for over 22 years until he retired at age 62. The examiner noted that according to the VA treatment records, he engaged in brief periods of psychotherapy in 2015 and 2018, each time for only a few sessions related to life stressors and at no time with symptoms as severe as those reported in the service records. Most recently, he engaged in brief counseling regarding the stress of his wife's illness and bereavement due to her death in February 2018. He indicated that he continues to struggle with how to spend his time since most of his prior activities had involved his wife. He indicated that his mood has improved and that he feels his current level of bereavement is "normal, after losing the person you have been with for the past 64 years." He stated that he continues to struggle emotionally since the death of his wife, although his bereavement symptoms are improving with time. The Veteran's son was also present and told the examiner that he was completely unaware until recently of the information in his father's military records about his psychiatric hospitalization and history. Both the Veteran and his son told the examiner that they do not see any evidence of additional similar periods that are described in military psychiatric records and that there have not been ongoing mental health issues or difficulties with adjustment or emotional or occupational functioning related to the incident and hospitalization described in the service treatment records. Symptoms at the time of the October 2018 VA examination consisted of depressed mood. A mental status examination revealed that the Veteran's mood was mildly dysphoric but the examination was otherwise within normal limits. He was described as pleasant and minimized psychiatric concerns. He denied any suicidal ideation and delusions or hallucinations. He denied depression or anxiety symptoms beyond bereavement for his late wife. He was diagnosed with bereavement, unrelated to military service. The examiner found that he does not currently exhibit symptoms of a mental disorder beyond bereavement. The VA psychologist opined that his mental condition is less likely than not related to military service, explaining that his only diagnosis is bereavement related to the recent loss of his wife and he does not currently exhibit any symptoms of a mental disorder beyond bereavement. There is no evidence of occupational or interpersonal difficulties related to the diagnosis of schizophrenia reaction in 1957. Therefore, he does not have a diagnosis that is at least as likely as not related to military service. See October 2018 VA examination report. The Board finds the October 2018 VA examiner's opinion to be highly probative, as she provided thorough rationale based on mental status examinations and a review of the claims file and reported medical history, which included the service treatment records and VA treatment records. As set forth above, there is no evidence of any current psychiatric disorder other than bereavement, which is related to the recent death of his wife of over sixty years. The Veteran and his son denied any current symptoms related to the diagnosis of schizophrenia reaction in 1957. This is consistent with the post-service medical records, which document episodes of psychotherapy for post-service life stressors but no symptoms of schizophrenia or other psychosis. The Veteran points to the service treatment records documenting diagnosis and treatment for schizophrenic reaction which was determined to preexist service. See February 2020 VA Form 9 substantive appeal; May 2021 appellate brief. However, as discussed above, there is no evidence of a current disability related to the diagnosis of schizophrenic reaction in service. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statutes governing veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Although the Veteran is competent to report his symptoms, he is not competent to provide a diagnosis in this case or determine that his symptoms are manifestations of schizophrenia as opposed to another acquired psychiatric disorder. See e.g. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). Based on the foregoing, the weight of the most probative evidence does not establish a diagnosis of schizophrenia during the appeal period or within close proximity thereto. Rather, the weight of the evidence shows that the Veteran has bereavement syndrome related to the recent death of his wife, which is unrelated to military service. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 53. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.