Citation Nr: 22053310 Decision Date: 09/20/22 Archive Date: 09/20/22 DOCKET NO. 17-03 144 DATE: September 20, 2022 ORDER The petition to reopen the claim of service connection for schizophrenia is granted. Entitlement to service connection for schizophrenia is granted. FINDINGS OF FACT 1. A January 2007 rating decisions denied entitlement to service connection for schizophrenia; the Veteran did not timely appeal the denials; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the rating decisions. 2. Evidence received since the January 2007 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claims for entitlement to service connection for schizophrenia. 3. The Veteran's current psychiatric disability, diagnosed as schizophrenia, did not clearly and unmistakably preexist service and is shown to have been incurred in service. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for schizophrenia has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for schizophrenia are met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.1, 3.301, 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to September 2001 and from February 2002 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in May 2022. A transcript of the proceeding is of record. 1. New and material evidence to reopen the claim of service connection for schizophrenia Generally, a claim that has been denied in an un-appealed agency of original jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously submitted to agency decision makers. 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); Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996). Here, January 2007, the AOJ denied entitlement to service connection for schizophrenia on the basis of the disability existed prior to service and was not aggravated by service. The evidence of record at that time included service treatment records, post service treatment records (STRs), a September 2003 VA examination, and a notification from the Psychiatric Institute of Washington that they were unable to locate records the Veteran. The Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since January 2007 decision includes additional private treatment records, hearing testimony, and a private medical opinion. This evidence relates to an unestablished fact needed to establish service connection, i.e., the Veteran's disability did not clearly and unmistakably preexist service and the Veteran's disability incurred in service. Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran's claim of service connection for schizophrenia are met. 2. Entitlement to service connection for schizophrenia/psychosis 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. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the 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. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. This statutory provision is referred to as the "presumption of soundness." Horn, 25 Vet. App. at 234. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). The government may show a lack of aggravation by establishing by clear and unmistakable evidence "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." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). 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. If the government rebuts the presumption of soundness, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the Veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Prior to the application of the presumption of soundness, there must be evidence that a disease or injury not noted upon entrance into service actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). The presumption of soundness shields the Veteran from a finding that the disease or injury preexisted, and therefore was not incurred in, service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55. "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). VA "may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation." Horn, 25 Vet. App. at 236. "[A]n increase in disability must consist of worsening of the enduring disability..." Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Accordingly, "a lasting worsening of the condition," or a worsening that existed not only at the time of separation but one that still exists currently, is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning a veteran's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Otherwise, a claimant bears the evidentiary burden to establish entitlement to the benefit sought. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). 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(b). The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The medical records, most recently an October 2021 medical evaluation, establish a diagnosis of schizophrenia. Based on this evidence, a current disability is established. At this point, the central questions of fact at issue are (1) whether a psychiatric condition preexisted service, and if so, (2) whether it was aggravated by service, or, if not (3) whether a current condition is related to service. The Veteran's February 2001 service entrance examination is negative for any indication of a preexisting psychiatric condition. Hence, the presumption of soundness applies. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner, 370 F.3d at 1096. The Veteran has somewhat inconsistently reported treatment and symptoms prior to service. For example, he reported during September 2003 VA examination that he received treatment at the Psychiatric Institute of Washington in June 2000 which was also reported in the military. He then reported that he received treatment from a VA medical center, in 2000, prior to his military service which was also reported in the military. However, the military examiners noted the Veteran to be an unreliable historian due to his psychiatric state. The Veteran's father also reported in the military that the Veteran had been diagnosed with schizophrenia and need his medication reported as Respiridol. The Board finds no reason why this information was not reliable. Later, the Veteran reported that his first mental health evaluation occurred in July 2001 in Jackson, Mississippi. Further, at separate times, the Veteran reported being a college athlete, an Olympic class athlete, and a model. At the May 2022 Board hearing, the Veteran's representative testified that he was considered "normal" at service enlistment with no problems at that time. And it was declared more adamantly that the mental health disability occurred while on active duty and no history prior to service could prove different or be provided. The claims file is replete with other evidence showing that the Veteran is an inconsistent and unreliable historian. Further, to date, the AOJ has been unable to obtain any records from the locations the Veteran claimed to receive treatment from prior to service, even receiving responses from the facilities that no such records exist. Hence, his own statements are not sufficiently probative evidence of a preexisting disease. This evidence does not establish by clear and unmistakable evidence that a psychiatric condition preexisted service. The Veteran's own statements have been too inconsistent and unreliable to establish what, or if, a condition preexisted service. The Veteran's father's statement that the Veteran received treatment prior to service is highly probative, but the exact diagnosis and treatment history is not reliable. The Board finds insufficient information to establish by clear and unmistakable evidence that schizophrenia pre-existed service. Because the presumption of soundness is not rebutted, the question becomes whether a current condition is directly related to or incurred during service. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012). To this end, the Veteran's STRs and personnel records document that in October 2002 the Veteran became non-responsive to the chain of command and refused to obey orders and demonstrated bizarre behavior, and he frequently had confrontations with his NCO's, and was written up for disobeying his officers. Once stationed in Germany, the command became concerned about the Veteran's behavior, and they contact his father for advice. In 2002, records show the Veteran was transferred from Hohenfels, Germany to Landstuhl, Germany, and then air evacuated to the Walter Reed Army medical center for inpatient psychiatric treatment. At that time, the Veteran was diagnosed with schizophrenia disorganized type and started on medication. He was discharged from the military in April 2003 due to a mental health disability. Prior to 2002, the Veteran's STRs are silent for any treatment, complaints, or diagnosis of any psychiatric symptomatology. Most recently, a private examiner in August 2022 opined that it is at least as likely as not that the Veteran's schizophrenia began during his active military service. In support of this conclusion, the examiner noted that the record is absent of any evidence of treatment prior to military service, besides unsupported statements made by the Veteran and/or the Veteran's father. Further, the examiner provided the Veteran's treatment history, including documentation of an in-service diagnosis of schizophrenia, explained the symptoms associated with schizophrenia, and provided medical literature to describe the onset of the disorder. The Board finds the August 2022 private medical opinion to be highly probative because it is based on an accurate medical history and provided an explanation that contains a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Overall, the Board concludes that this evidence establishes that his current condition is at least as likely as not related to service. And supports the determination that the disability first manifested in service, and there is no material dispute that his current condition has existed since that time. As such, a nexus to service is established, and service connection is warranted. The Board further notes that, even if it was established that schizophrenia clearly and unmistakably existed prior to service, the private medical opinion and STRs would reflect evidence of aggravation. The September 2003 VA examiner did not speak to the issue of aggravation, and the Board cannot find on this record that the onerous burden of showing no aggravation can be met. In conclusion, the Board finds that the Veteran's current psychiatric disability did not clearly and unmistakably preexist service and is shown to have been incurred in service. This is particularly so when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for schizophrenia. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Brady, 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.