Citation Nr: 0004781 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 94-25 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim of service connection for a psychosis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from February 1951 to June 1951. This matter comes before the Board of Veterans' Appeals (Board) from a February 1994 rating decision of the Roanoke, Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which found that the veteran had not submitted new and material evidence to reopen his claim for service connection for a psychosis. The issue of whether there was clear and unmistakable error in Board decisions in September 1956 and January 1991 concerning the issue of service connection for the psychiatric disorder will be the subject of a separate decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. In September 1956 and again in January 1991, the Board denied the veteran's claim for entitlement to service connection for a psychosis, based on a finding that the veteran's psychosis pre-existed service and was not aggravated therein. 3. In October 1992, the RO declined to reopen the claim for service connection for a psychosis, finding that new and material evidence had not been submitted, as the additional evidence submitted still did not show that the veteran's psychosis was aggravated or incurred in service; the veteran did not appeal that decision and it became final. 4. Additional evidence submitted subsequent to the October 1992 RO decision includes evidence which is more than merely cumulative, and is probative of the issue of service connection. 5. The medical evidence shows that the veteran has a psychosis which had an onset during service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the October 1992 RO decision to reopen the claim for entitlement to service connection for a psychosis. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. A psychosis was incurred in service. 38 U.S.C.A. § 1110, 1111, 5107 (West 1991& Supp. 1999); 38 C.F.R. § 3.102, 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background In September 1956 and in January 1991, the Board denied the veteran's claim for entitlement to service connection for psychosis, based on a finding that the veteran's psychosis pre-existed service and was not aggravated therein. By rating action dated in October 1992, the RO declined to reopen the veteran's claim of service connection for a psychosis, finding that new and material evidence had not been submitted, as the additional evidence submitted still did not show that the veteran's psychosis was incurred in or aggravated by service. That determination is final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105. The evidence which was of record when the RO considered the claim in October 1992 is summarized below. Service medical records showed that on examination for induction in December 1950, the veteran was clinically evaluated as psychiatrically "normal". Shortly after entering service in February 1951, he was hospitalized with complaints of abdominal pain, vomiting and fever. During the hospital course, he began disturbing other patients with inappropriate laughter and bizarre talking. His gastrointestinal symptoms resolved, and he remained hospitalized for psychiatric problems. The diagnosis was schizophrenic reaction, simple type chronic, moderate. In a March 1951 letter, Elvin H. Hearst, M.D. reported that he had treated the veteran in the summer and fall of 1950, and at that time the predominating characteristic was of a psycho- neurosis. Based in part on the evidence from Dr. Hearst, in May 1951, medical board proceedings found that the veteran's psychiatric condition existed prior to active duty. He was recommended for separation, and referred to the Physical Evaluation Board, which found that his psychiatric disability existed prior to service, and was not permanently aggravated by military duty. He was subsequently separated from service due to disability. A September 1952 VA hospital report indicated that the veteran was admitted for psychiatric problems diagnosed as schizophrenic reaction, simple type, chronic. The diagnosing physician reported that the veteran had a marked history of psychotic behavior patterns from an early age. A December 1955 letter from Elvin H. Hearst, M.D., described the veteran's psychiatric condition since separation from service. Received in January 1956, from the veteran, were statements from several people who knew him both before and after his period of service, and who claimed that he was normal before he entered service, and had problems with his nerves since his separation from service. A VA hospital summary report indicated that the veteran was admitted from December 1955 to January 1956. The diagnosis was schizophrenic reaction, chronic undifferentiated type, moderate, in partial remission. It was noted that the veteran had mild external stress caused by difficulty adjusting to five days of actual military service and subsequently to the problems of civilian life. By rating decision in July 1951, the RO denied the veteran's claim for service connection for a NP (neuropsychiatric) condition, finding that the veteran's NP condition, for which he was discharged from service, pre-existed his entry into service and was not aggravated by his short period of service. In January 1956, the RO again denied the veteran's claim for service connection for his NP condition. In September 1956, the Board denied the veteran's claim on appeal, finding that the evidence showed that the veteran's schizophrenic reaction, was of pre-service origin and not aggravated by service. An October 1959 statement from an associate of the veteran indicated that the veteran had no illness prior to entering service. VA records indicated that the veteran was hospitalized from March 1960 to May 1961 for psychiatric problems diagnosed as a schizophrenic reaction, chronic undifferentiated type, moderate. A January 1962 letter from Robert F. Barbe, M.D., indicated that the veteran was diagnosed with paranoid schizophrenia. He stated that the onset, as best as he could determine, was in 1951, while in military service. Dr. Barbe noted that the veteran must have had the condition prior to induction in an non-overt fashion and that the logical conclusion was that his condition was aggravated by service. By February 1962 rating action, the RO again denied service connection for psychosis. A January 1963 VA examination report indicated that the veteran had numerous periods of hospitalization since service. Continued mental problems were noted. The diagnosis included schizophrenic reaction, chronic paranoid, manifested by autistic thinking, delusions of grandeur, paranoid ideation, and a lack of insight. A long history of previous schizophrenic breaks was noted. A March 1963 Social Service Survey reported the progression of the veteran's ongoing psychiatric condition. A VA hospitalization summary showed that the veteran was admitted for psychiatric problems from January to April 1963. The diagnosis included schizophrenic reaction. On an October 1963 VA examination for pension purposes, schizophrenic reaction, simple type, chronic was diagnosed. The veteran was noted to have a marked predisposition. The examiner noted that the veteran had neuropathic traits in childhood and that it was possible that his psychosis was present in the fall of 1950 before service. A June 1965 VA examination report noted a diagnosis of schizophrenic reaction, paranoid type, in partial remission. VA records document periods of hospitalization for psychiatric problems from July 1965 to October 1965 and again from August 1966 to September 1966. In September 1978, March 1983, and July 1988 the veteran indicated that he wanted to reopen his claim for service connection for schizophrenic reaction. Received in December 1988 were private medical records from Ashvin A. Patel, M.D., showing that the veteran had treatment for psychiatric problems from November 1987 to October 1988. By rating action in January 1989, the RO denied the veteran's claim to reopen. The veteran appealed, and on his March 1990 substantive appeal (VA Form 9), he claimed that he was misdiagnosed years ago and that because of this diagnosis he has not been able to prove his claim. In January 1991, the Board denied the veteran's claim for service connection for his psychosis, indicating that the Board denied the claim back in 1956 and that the evidence received subsequently did not show that the veteran did not have a psychiatric disorder prior to service or that any psychopathology which existed prior to service increased in severity therein. In statements dated in March 1991 and in June and August 1992, the veteran continued to assert a claim for service connection for his psychiatric problems. He contended that his psychiatric problems began during, or were aggravated by, his period of service. VA outpatient treatment records dated from March 1992 to July 1992 indicate that the veteran continued treatment at the VA mental health clinic. An October 1992 RO decision found that the veteran had not submitted new and material evidence to reopen his claim for service connection for a psychosis. As noted above, that determination is final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105. In order to reopen such a claim, the veteran must present new and material evidence with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers 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 additional relevant evidence submitted since the October 1992 RO decision consists of a letter from a private physician, VA treatment records, and a VA examination. Also, in July 1998 the Board requested and received an independent medical expert opinion on the issue of service connection for a psychosis. A June 1993 letter from the veteran's private physician, Paul R. Kelly, M.D., indicated that he had first seen the veteran in March 1993. Dr. Kelly stated that, from the veteran's explanation and after carefully reviewing the medical records, it was very likely that the Army screened the veteran very poorly and did not recognize the nature of his sensitive emotions. The physician noted that it seemed to him that the Army, in their induction, aggravated a pre- existing condition or applied enormous stress to a man predisposed to have schizophrenia and paranoia. In a September 1993 statement, the veteran asserted that his schizophrenia was incurred or aggravated during service. On his June 1994 VA Form 9, the veteran contended that his psychiatric condition was misdiagnosed. In a May 1995 VA Form 646, the veteran's service representative argued that the letter from Dr. Kelly constituted new and material evidence sufficient to reopen the veteran's claim. The veteran's service representative stated that although the veteran's schizophrenia began prior service, service connection should still be granted on the basis that the condition was aggravated by service. Received in February 1996 were VA medical center treatment records which show that the veteran continued outpatient treatment at the mental health clinic from July 1994 to September 1995. A March 1996 general VA examination noted the veteran's history of psychiatric treatment during service. Current complaints of nervousness were also noted. The diagnosis included chronic paranoid schizophrenia in remission. An April 1996 VA mental disorders examination noted the veteran's history of mental problems. The diagnosis was paranoid schizophrenia, chronic and severe. In a December 1997 Informal Hearing Presentation the veteran's representative asserted that the veteran did not have a psychosis prior to entering service in 1951. In July 1998, the Board forwarded the veteran's records to an independent medical expert for an opinion relative to the following questions: (1) What was the proper diagnosis(es) of the veteran's psychiatric disorder(s) during service and does this represent a psychosis, psychoneurosis or personality disorder? (2) Does the record indisputably show that the psychiatric disorder(s) diagnosed above existed prior to the veteran's entry into service? (3) If it is concluded that the psychiatric disorder(s) existed prior to service, is it at least as likely as not that the underlying psychopathology increased in severity during service and, if so, was the increase in severity clearly and unmistakably the result of the natural progress of the underlying condition? In July 1998 a response was received from a specialist in psychiatry at the University of Texas Medical Branch, Department of Psychiatry and Behavioral Sciences. The specialist's opinion is set out below: As you know the veteran served from February to June 1951. He was hospitalized shortly after induction, diagnosed as schizophrenic. Based on the records from his initial hospitalization, and subsequent mental status exams, the diagnosis of chronic schizophrenia seems appropriate, as he gave evidence of hallucinations, delusions, and disorganized behavior resulting in severe impairment. The duration of the illness certainly meets the criteria for schizophrenia. Schizophrenia is a psychotic disorder. Regarding your second point, his record does not indisputably show that the psychiatric disorder existed prior to his entry into service. A letter from Dr. E. H. Hearst, who stated that he saw the veteran in 1950, is brief, he describes a "psychoneurosis". Our diagnostic classification system has changed a great deal since that time, it is difficult to discern what was meant by this term. However, DSM-I (1952), which likely reflects Dr. Hearst's view, describes psychoneurotic disorders as characterized by "anxiety". In addition, it is stated that "patients with psychoneurotic disorder do not exhibit gross distortion . . . of external reality." DSM-I, p. 31. To make an accurate diagnosis of his condition, prior to his induction into the service, is extremely difficult. A "clinical abstract" apparently typed at the time of his hospitalization in 1951, mentioned that the patient, prior to induction into the Army, was known to be "extremely shy". It is also mentioned that he talked to himself and was seen making facial grimaces. While these may possibly be related to schizophrenia, it is difficult to say so with certainty. It may well have been that he was in the prodromal stages of an incipient schizophrenic break, or that he suffered from a schizoid or schizotypal personality disorder. In situations such as this it is difficult, if not impossible, to determine whether the illness would have manifest itself had he not entered the Army. The mean onset for schizophrenia in men is from the early to mid-twenties, consistent with the present case. The fact that the induction medical exam is normal lends credence to the idea that, at the least, he was not floridly psychotic on induction into the service. Given that the psychiatric examination result is reported as normal with a check mark, it is unclear whether a detailed mental status examination was performed. To conclude, I feel that the patient is suffering from chronic schizophrenia, a psychosis, and that the illness became apparent on entry into service. A copy of the opinion was furnished to the veteran's representative and in an April 1999 response, the representative cited portions of the independent medical experts opinion, and requested that the benefit of the doubt be resolved in the veteran's favor, and that the Board come to a favorable resolution for the veteran. In its February 1994 and April 1996 determinations that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for a psychosis, the RO applied the standard set forth in Colvin. This test required that, in order to reopen a previously denied claim, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin at 174. The Board notes that in a recent case, the United States Court of Appeals for the Federal Circuit determined that in imposing the requirement that there be a reasonable possibility of a changed outcome, the U.S. Court of Appeals for Veterans Claims (Court) in the Colvin case impermissibly ignored the definition of material evidence adopted by VA. Thus, that part of the Colvin test was overruled. Hodge v. West, 155 F.3d. 1356 (Fed. Cir. 1998). In view of the Hodge decision, the veteran's application to reopen the previously denied claim for service connection must be analyzed under the definition of new and material evidence provided at 38 C.F.R. § 3.156(a), rather than the standard set forth in Colvin. The Hodge decision provides for a reopening standard which calls for judgments as to whether new evidence (1) bears directly or substantially on the specific matter, and (2) is so significant that it must be considered to fairly decide the merits of the claim. Hodge, supra. Subsequent to Hodge, the Court issued two additional decisions bearing on the issue of reopening claims for veterans' benefits: Elkins v. West, 12 Vet. App. 209 (1999) (en banc) and Winters v. West, 12 Vet. App. 203 (1999) (en banc). In these cases, the Court stated that there is now a three step test to apply when a veteran seeks to reopen a final decision based on new and material evidence. Elkins at 218-219; Winters at 206. Under Elkins, VA must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. Second, if new and material evidence has been presented, immediately upon reopening the claim, VA must determine whether based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). Third, if the claim is well grounded, the decisionmakers may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. In reviewing the evidence of record, the Board finds that additional evidence submitted since the October 1992 RO decision is new and material. Specifically, in the July 1998 independent medical expert opinion, the medical expert opined that the veteran's diagnosis of schizophrenia during service seemed appropriate, and that the record did not show that the schizophrenia existed prior to service. The medical expert also concluded that the veteran had chronic schizophrenia which became apparent on entry into service. The Board therefore finds that this evidence is new, as it has not previously been considered by the RO, and is material as it is more than merely cumulative in nature, and it is relevant to and probative of the issue at hand. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In short, the Board finds that competent medical evidence has been received which confirms that the veteran's psychosis (schizophrenia) had an onset during service and did not pre-exist service. Accordingly, the claim is reopened and all of the evidence will be considered on a de novo basis. The Board finds that the additional evidence meets the more flexible standard set forth in 38 C.F.R. § 3.156(a) and Hodge, and finds that the July 1998 independent medical expert opinion is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, as new and material evidence has been presented to reopen a claim for entitlement to service connection for a psychosis, the claim is reopened. Once it has been determined that new and material evidence has been submitted to reopen a claim, the Board must decide whether the veteran will be prejudiced in any way by its consideration of the reopened claim when the RO has not addressed that underlying issue. The factors to be considered include whether the claimant has been given adequate notice of the need to submit evidence or argument on the underlying claim, an opportunity to submit such evidence or argument, and an opportunity to address the issue at a hearing. Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has presented his arguments through personal statements and through his representative. Most of these arguments were merit-based rather than procedural. In view of the opportunity to present his contentions and evidence on the underlying claim, and of the outcome of the decision, the Board concludes that the veteran will not be prejudiced by its consideration of the underlying claim. According to Elkins, the Board must now determine whether based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the veteran. King v. Brown, 5 Vet. App. 19 (1993). Taking into consideration all of the evidence of record, the Board finds that the veteran's claim for service connection for a psychosis is well grounded. As to the first requirement of Caluza, there is evidence showing a current psychosis. As to the second requirement of Caluza, there is evidence showing that the veteran was treated for schizophrenic reaction during service. As to the third requirement of Caluza, the Board notes that the independent medical expert opinion tends to show a nexus between the veteran's current psychosis and service. Hence, the Board finds the veteran's claim for service connection for a psychosis to be well-grounded. After a determination of well-groundedness has been made, the third step in the Elkins case requires that the Board evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.103(a) (1998). The Board finds that the record on appeal has been fully developed and that the duty to assist has been satisfied by the RO. The Board must now determine whether the evidence of record, both old and new, supports the veteran's claim for service connection for a psychosis. Under applicable criteria, service connection will be granted for a disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110. Veterans are presumed to be in sound medical condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered noted. 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111, 38 C.F.R. § 3.304(b). In determining whether the presumption of soundness has been rebutted, the VA shall consider all of the evidence of record. The Court recently held that pursuant to 38 C.F.R. § 3.304(b), the determination of whether the presumption of soundness has been rebutted is not whether the VA sustained a burden of producing evidence, but whether the evidence as a whole, clearly and unmistakably demonstrates that the injury or disease existed prior to service. Vanerson v. West, 12 Vet. App. 254 (1999). Service medical records show that he was found to be psychiatrically "normal" on his induction examination in December 1950, and there is no defect, infirmity, or disorder noted on the examination report. While there have been prior findings that the veteran's psychosis pre-existed service and was not aggravated therein, the Board finds that based on the most recent medical evidence of record (the July 1998 independent medical expert opinion), there is no clear and unmistakable evidence sufficient to rebut the presumption of soundness. There is a letter dated in March 1951 in which Dr. Hearst reported that he had treated the veteran in the summer and fall of 1950, and at that time the predominating characteristic was of a psycho-neurosis, however, in the July 1998 expert medical opinion, it is noted that when Dr. Hearst described the veteran as having a "psychoneurosis" in 1950, it is likely his view was based on DSM-I, which describes psychoneurotic disorders as characterized by "anxiety", and that "patients with psychoneurotic disorder do not exhibit gross distortion . . . of external reality." Based on this evidence, the Board is unable to conclude that the veteran had a psychotic condition prior to his period of service. The issue, therefore, is whether a psychosis was incurred in service. 38 U.S.C.A. §§ 1110. As noted above, in July 1998 an independent medical expert opined that the veteran's chronic schizophrenia became apparent on entry into service. The Board finds this opinion to be persuasive, as it was rendered on the basis of a comprehensive review of the veteran's record. Based on the cumulative evidence of record, the Board finds that the evidence now supports the veteran's claim for service connection for a psychosis. ORDER As new and material evidence has been submitted to reopen the claim for entitlement to service connection for a psychosis, the claim is reopened. Entitlement to service connection for a psychosis is granted. C. W. SYMANSKI Member, Board of Veterans' Appeals