BVA9507536 DOCKET NO. 93-14 016 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran had active service from May 6 to June 24, 1949 and from January 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October and November 1992 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which denied the veteran's petitions to reopen his claim of entitlement to service connection for schizophrenia. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim for entitlement to service connection for schizophrenia. He maintains that he was initially diagnosed as having schizophrenia during service in May 1949 and that he was subsequently hospitalized for this condition on several occasions between 1956 and 1965. Consequently, he contends that he is entitled to service connection for schizophrenia. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 the preponderance of the evidence supports the veteran's petition to reopen his claim for service connection for schizophrenia. FINDINGS OF FACT 1. Entitlement to service connection for schizophrenia was denied by the RO in October 1949 on the grounds that since it was noted within 20 days of service, it was not incurred in service. Since no appeal was filed, the decision became final. 2. The RO' s failure to apply the presumption of soundness when the 1949 rating decision was rendered, is sufficient to reopen the veteran's claim of entitlement to service connection for schizophrenia. CONCLUSIONS OF LAW 1. The RO's decision in October 1949 denying the veteran's claim of entitlement to service connection for schizophrenia is final. 38 U.S.C.A. §§ 7105 (West 1991). 2. Failure of the RO to apply the regulation pertaining to the presumption of soundness when the 1949 rating decision was reached, provides a basis to reopen the veteran's claim of entitlement to service connection for schizophrenia . 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.105(a), 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran was diagnosed as having a schizophrenic reaction in May 1949, 20 days after entering active service. He was subsequently discharged from service in June 1949 due to physical disability. In October 1949, based on the veteran's service medical records, the RO denied his claim of service connection for schizophrenia on the grounds that the condition pre-existed service and was not aggravated by service. Since no appeal was filed by the veteran, the RO's decision in June 1949 denying his claim became final. 38 U.S.C.A. §§ 7105 (West 1991). At the time of the 1949 rating decision, the regulation describing basic entitlement to benefits, the presumption of soundness at induction, and the presumption of aggravation for a pre-existing condition were found in Veterans Regulation 1(a), Part I, paragraphs I(a), (b) and (d) (1943). This paragraphs are currently codified at 38 U.S.C.A. § § 1110, 1111 (West 1991), without significant substantive changes. The regulation essentially dictated that once the presumption of soundness was in place, the burden shifted to the government to offer clear and unmistakable evidence to rebut the presumption of service connection. A review of the veteran's service entrance examination conducted in May 1949, demonstrates that schizophrenia was not noted upon his entrance into active service. In that situation, the presumption of soundness was applicable, and clear and unmistakable evidence was required to demonstrate that the condition manifested in service in fact pre-existed service. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b)(1994). It appears from the records on file, that the 1949 rating decision failed to consider the regulation pertaining to the presumption of soundness. The United States Court of Veterans Appeals (Court) has held that when the evidentiary presumption was not previously considered and because it bears directly and substantially on the issue of entitlement to service connection, it provides a basis for reopening a claim for service connection. See Akins v. Derwinski, 1 Vet.App. 228 (1991). Accordingly, the Board concludes that the veteran's claim for service connection for schizophrenia is reopened. ORDER The veteran's claim for service connection for schizophrenia is reopened. REMAND The Board notes that in support of his petition to reopen his claim of entitlement to service connection for schizophrenia, the veteran submitted hospital records from the Columbus Psychiatric Institute and Hospital, University Health Center dated in November 1959 and a status card from the Central Ohio Psychiatric Hospital dated from May 1960 to September 1960. Both records contain diagnoses of a schizophrenic reaction. However, there is no evidence of record which tends to show that the veteran is currently suffering from symptomatology associated with schizophrenia. Further, there is no evidence of record showing continuity of symptomatology to adequately establish chronicity during nearly four decades post service. For service connection to be granted, the law requires that the veteran have a present disability and that the disability result from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Therefore, the RO should make arrangements to obtain the veteran's complete medical records and to afford him a special VA psychiatric examination. Inasmuch as the veteran's claim for service connection for schizophrenia has been reopened, and to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should make an additional attempt to obtain the veteran's complete service medical records, particularly from his second period of service from January 1951 to January 1953. 2. The RO should contact the veteran and request that he provide the names and addresses of all health care providers which have treated him for any psychiatric disorder, including schizophrenia, since his discharge from service. 3. After securing the necessary releases, the RO should obtain all treatment reports and hospital treatment folders from all private health care providers listed by the veteran that are not already on file. The RO should also obtain any VA treatment records pertaining to the veteran. If any records are not available, that fact and the reason(s) should be annotated in the claims folder. 4. Following the above development, the veteran should be examined by a VA psychiatrist to determine the nature and extent of any psychiatric disorder currently present. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. If there are different psychiatric disorders, the examiner should reconcile the diagnoses. The diagnosis should be in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. The entire claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The psychiatrist should specifically render an opinion as to the probability that any current psychiatric disorder is the same condition that was identified as schizophrenia during the veteran's first period of active service from May to June 1949. The psychiatrist should also render an opinion as to the probability that the schizophrenia noted during the first period of service became worse as a result or during the veteran's second period of service from January 1951 to January 1953. 5. The RO should review the examination report and determine if it is adequate for rating purposes and in full compliance with this Remand. If not, the report should be returned to the examiner for corrective action. Once the foregoing has been accomplished, and if the benefits are not granted to the satisfaction of the veteran, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 State. 740, ___ (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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This 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).