Citation NR: 9608388 Decision Date: 03/28/96 Archive Date: 04/11/96 DOCKET NO. 94-23 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for schizophrenia. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from January 1969 to April 1971. The claims file contains a report of a rating decision dated in August 1972 wherein entitlement to service connection for a psychiatric disorder then diagnosed as a passive-aggressive personality disorder was denied on the basis that this was a developmental disorder and not a disability under the law for VA compensation purposes. The veteran was notified by letter of the above denial and of his right to appeal. He did not file a timely appeal. On file are rating decisions dated in December 1974 and October 1975 wherein it was determined that new and material evidence had not been submitted to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder variously diagnosed as passive-aggressive personality disorder and acute schizophrenic episode. The current appeal arose from a June 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The RO denied entitlement to service connection for post-traumatic stress disorder. In an April 1994 rating decision the RO affirmed the determination previously entered, denied entitlement to service connection for schizophrenia as secondary to post- traumatic stress disorder, and affirmed the prior denial of entitlement to service connection for schizophrenia. The RO affirmed the denial of entitlement to service connection for post-traumatic stress disorder when it issued a rating decision in November 1995. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issue of entitlement to service connection for post- traumatic stress disorder will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from schizophrenia which cannot be dissociated from traumatic events in service, and that the record shows that schizophrenia was manifested sufficiently proximate to service to support a grant of service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted to reopen a claim of entitlement to service connection for schizophrenia, and that the record supports a grant of entitlement to service connection for schizophrenia. FINDINGS OF FACT 1. In August 1972 the RO denied on the merits the veteran’s claim of entitlement to service connection for a psychiatric disorder then diagnosed as passive-aggressive personality. 2. Additional evidence since the August 1972 rating decision shows that the veteran has required inpatient and outpatient treatment by VA for psychiatric symptomatology diagnosed as schizophrenia. 3. The additional evidence submitted by the veteran since the August 1972 rating decision, when viewed in the context of all the evidence of record, raises a reasonable possibility of changing the prior outcome. 4. The veteran’s diagnosed schizophrenia is related to his period of service. CONCLUSIONS OF LAW 1. Evidence submitted since the RO denied entitlement to service connection for a psychiatric disorder then diagnosed as passive-aggressive personality disorder is new and material. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). 2. Schizophrenia may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is of the opinion that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). The evidence which was of record at the time of the RO’s rating decision in August 1972 will be summarized below. The record showed that service medical records revealed the veteran appeared before a medical board and was diagnosed with a passive-aggressive personality disorder, chronic, severe. The veteran was hospitalized by VA during April and May, 1972. His psychiatric symptomatology, variously diagnosed tentatively as anxiety neurosis; paranoid schizophrenia; habitual excessive drinking; and paranoid personality, rule out schizophrenia, paranoid type, was ultimately determined to be paranoid schizophrenia, noted as the hospital discharge diagnosis. In July 1972, a board of two VA psychiatrists determined that the proper diagnosis to account for the veteran’s psychiatric symptomatology in service was passive-aggressive personality disorder, severe; and that the proper diagnosis currently was passive-aggressive personality disorder, severe. The board determined that the current diagnosis of schizophrenia, paranoid type, was not justified. The additional evidence which has been submitted since the August 1972 rating decision denying entitlement to service connection for a psychiatric disorder diagnosed as passive- aggressive personality disorder will be summarized below. A July 1972 report of private psychiatric examination concluded in a diagnosis of schizophrenic reaction, paranoid type, in partial remission. The veteran was diagnosed with acute schizophrenic episode, rule out schizophrenia, paranoid type, when hospitalized by VA during July and August, 1973. The veteran provided testimony in support of his contention that he was suffering from schizophrenia related to service when he appeared at an RO hearing in October 1975. A June 1983 VA special psychiatric examination concluded in a diagnosis of schizophrenia, paranoid type, active, etc. A May 1993 VA special psychiatric examination concluded in a diagnosis of schizophrenia, chronic, undifferentiated type. Chronic paranoid schizophrenia was diagnosed in connection with a VA hospitalization of the veteran during August and September, 1995. VA mental health clinical records dated in the early to mid 1990’s include references to paranoid schizophrenia. After a review of the record, the Board concludes that the additional evidence is both “new” and “material.” Accordingly, the veteran’s claim is reopened. “New” evidence is that which is not merely cumulative of other evidence of record. “Material” evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility), see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992), that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the prior outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). “New and material evidence” means “evidence not previously submitted...which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.” 38 C.F.R. § 3.156(a). The evidence submitted by the veteran subsequent to the August 1972 rating decision wherein the RO denied entitlement to service connection for a psychiatric disorder then diagnosed as passive-aggressive personality is “new” in that it shows the diagnosis to account for the veteran’s longstanding psychiatric symptomatology is schizophrenia. The evidence is also “material” because there is a possibility that such evidence, when considered in the context of all the evidence, both new and old, could change the outcome of the prior August 1972 rating decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The Board concludes there is a reasonable basis for concluding that the diagnosis of paranoid schizophrenia reported as the discharge diagnosis for the veteran’s VA hospitalization within one year of separation from service was proper, despite the later opinion by a board of VA psychiatrists. The opinion provided by the board of VA psychiatrists was predicated on a limited post service record of psychiatric documentation. The post service record subsequent to the August 1972 rating decision shows that there has been no dispute as to the correct diagnosis to account for the veteran’s psychiatric symptomatology; namely, paranoid schizophrenia. The Board concludes that the record supports a grant of entitlement to service connection for schizophrenia. ORDER New and material evidence having been submitted to reopen a claim of entitlement to service connection for a chronic acquired disorder diagnosed as schizophrenia, the claim is reopened. Entitlement to service connection for a chronic acquired psychiatric disorder diagnosed as schizophrenia is granted. REMAND Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). In this regard, the records available to the Board show that the veteran trained and served as a torpedoman mate aboard a submarine with the United States Navy. His duties did not involve the Vietnam theater of combat operations. He is not in receipt of a Purple Heart or any combat related decoration. He has, however, provided in statements on file, descriptions of his exposure to what he considered life threatening events in connection with his submarine service. The Board observes that the stressor information which the appellant has supplied to the RO has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the veteran’s claimed stressors. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor(s), it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in Manual M21-1 included providing the information submitted by the veteran to the ESG, such development is mandatory. The Board also notes that VA psychiatrists have already diagnosed the veteran with post-traumatic stress disorder. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. The veteran reports he is receiving treatment for post- traumatic stress disorder at the local VA medical facility. The most recently dated record from that facility on file is a hospital summary pertaining to inpatient care rendered during August and September 1995. Association with the claims file of treatment reports subsequent to that date would materially assist in the adjudication of the claimant’s appeal. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994), the Board will not decide the issue of entitlement to service connection for post-traumatic stress disorder pending a REMAND of the case to the RO for further development as follows: 1. The RO should request and associate with the claims file copies of the complete records pertaining to the veteran’s treatment since September 1995 at the VA Medical Center in St. Louis, Missouri. 2. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran’s statement should includes dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes the opportunity to inform the veteran that the United States Court of Veterans Appeals (Court) has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse affect on the outcome of his appeal. 3. After obtaining the foregoing requested information from the veteran, the RO should forward it with copies of obtained service personnel records, and a copy of his record of service (DD-214) to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop # 387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. 4. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any inservice stressful event, verified by the ESG. If no inservice stressor has been verified, the RO should so state in its report. This report is then to be added to the claims file. 5. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a Board of two VA psychiatrists who have not previously seen or treated him. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 21 September 1995), and all appropriate studies, including post- traumatic stress disorder sub scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor(s) the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis they must identify which stressor detailed in the ESG’s and/or the RO’s report is responsible for the conclusion. Any and all opinions provided must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report should be typed. 6. Following completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of post- traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, that examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post-traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App. at 77. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. If the benefit requested on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), a decision of the Board of Veterans’ Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -