Citation Nr: 0005589 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 93-09 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for schizophrenia. 2. The propriety of the initial rating assigned for the service-connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision of the RO. The Board remanded the case for additional development on three prior occasions, most recently in January 1998. FINDINGS OF FACT 1. In June 1988, the RO denied the veteran's original claim of service connection for schizophrenia. 2. In August 1988, the veteran received notice of the June 1988 decision as well as his appellate rights; however, he failed to file a Notice of Disagreement. 3. New evidence which is so significant that it must be considered in order to fairly decide the merits of the claim has been associated with the claims folder since the June 1988 rating decision. 4. The veteran's claim of service connection for schizophrenia is plausible. 5. The veteran is shown as likely as not to be suffering from schizophrenia which had its clinical onset in service. 6. The veteran's psychiatric disability is likely shown to result in total social and industrial impairment. CONCLUSIONS OF LAW 1. New and material evidence has been submitted for the purposes of reopening the veteran's claim of service connection for schizophrenia. 38 U.S.C.A. §§ 5107, 5108, 7104, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156(a) (1999). 2. By extending the benefit of the doubt to the veteran, his schizophrenia is due to disease which was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The criteria for the assignment of a 100 percent rating for the service-connected psychiatric disability have been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.132 including Diagnostic Codes 9204, 9411 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection New and material evidence When a claim is disallowed by the RO, appellate review is initiated by the filing of a Notice of Disagreement within one year from the date of mailing of notice of the result of the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a Notice of Disagreement is filed within the one-year period, the RO shall issue a Statement of the Case. 38 U.S.C.A. § 7105(d). The veteran is provided a period of 60 days (or the remainder of the one-year period from the date of mailing of the notice of the determination being appealed) to file the formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b). In the absence of a perfected appeal, the RO's decision becomes final, and the claim will not thereafter be reopened or allowed, except as otherwise provided. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. 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.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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 the 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 United States Court of Appeals for Veterans Claims (know as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the "Court") summarized the analysis in determining whether evidence is new and material in Evans v. Brown, 9 Vet. App. 273 (1996). VA must first determine whether the newly presented evidence is "new," that is, not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record. If new, the evidence must be "probative" of the issue at hand. However, there is no longer a requirement that, in order to reopen a claim, the new evidence, when viewed in the context of all the evidence, both new and old, must create a reasonable possibility that the outcome of the case on the merits would be changed. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitting sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). Finally, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In June 1988, the RO denied service connection for schizophrenia. In August 1988, the veteran received notice of the decision as well as his appellate rights; however, he failed to file a timely Notice of Disagreement. As the veteran did not file a Notice of Disagreement within one year of the August 1988 notice of the June 1988 rating decision, the decision became final. At the time of the June 1988 rating decision, the evidence consisted of the veteran's service medical records, VA and private medical evidence and statements of the veteran. The service medical records included a May 1968 letter from a private psychiatrist who had been caring for the veteran for approximately one year prior to his entering service. The psychiatrist indicated that the veteran would be able to adjust to the service experience. The veteran was seen in November 1968 complaining of nervous and anxious feelings about going to Vietnam. No diagnosis was given, and the veteran was discharged to proceed to his next service assignment. The veteran was seen again in December 1968 at the mental health clinic, but there is no indication as to any treatment given. The veteran's separation examination revealed no psychiatric abnormalities. Private post-service medical evidence shows treatment for chronic, undifferentiated schizophrenia as early as October 1976. An April 1988 VA examination reported a diagnosis of chronic, severe, paranoid type schizophrenia. The examiner stated that the veteran's illness seemed to have developed while he was in the service. He noted that it seemed "quite apparent that immediately upon discharge from the service he was showing the signs and symptoms of a schizophrenic illness." In the June 1988 rating decision, the RO denied the veteran's claim of service connection for schizophrenia on the basis that the evidence did not indicate that the veteran's schizophrenia was incurred or aggravated during active duty. Further, it was noted that there was no indication that the veteran had the disability to a compensable degree within one year of service. The evidence submitted subsequent to the June 1988 rating decision includes private and VA medical evidence, statements and testimony of the veteran and several lay statements. The Board finds particularly persuasive a February 1997 VA examination report. The examiner diagnosed schizophrenia, undifferentiated type. The examiner noted that it was unclear whether the veteran suffered from PTSD. He stated, however, that he believed that the veteran might have been experiencing psychotic phenomenon during his Vietnam service. The Board finds that the examination report is so significant that it must be considered in order to fairly decide the merits of the claim. The report is certainly new, as it was not of record at the time of the June 1988 rating decision. Furthermore, it is material as it is probative of the issue of service incurrence. See 38 C.F.R. § 3.303(d). Thus, the Board finds that new and material evidence has been submitted to reopen the claim of service connection for schizophrenia. Well groundedness As the veteran's claim of service connection for schizophrenia has been reopened, the Board must now determine whether, based upon all the evidence of record in support of the claim, presuming its credibility, the reopened claim is well grounded pursuant to 38 U.S.C.A. § 5107(a). Elkins v. West, 12 Vet. App. 209 (1999) (en banc). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In light of the evidence of nervous complaints in service, and the medical attribution of currently diagnosed schizophrenia to the veteran's period of service, the Board finds the claim of service connection for schizophrenia to be well grounded. See 38 C.F.R. § 3.303(d). Merits Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The regulations also provide that service connection may 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). If the disorder is a chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period following service; the presumptive period for psychoses is one year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As noted hereinabove, the service medical records include a May 1968 letter from a private psychiatrist who had been caring for the veteran for approximately one year prior to his entering service. The psychiatrist indicated that the veteran would be able to adjust to the service experience. The veteran was seen in November 1968 complaining of nervous and anxious feelings about going to Vietnam. No diagnosis was given, and the veteran was discharged to proceed to his next service assignment. The veteran was seen again in December 1968 at the mental health clinic, but there is no indication as to any treatment given. The veteran's separation examination revealed no psychiatric abnormalities. Private post-service medical evidence shows treatment for chronic, undifferentiated schizophrenia as early as October 1976. An April 1988 VA examination shows a diagnosis of chronic, severe, paranoid type schizophrenia. The examiner stated that the veteran's illness seemed to have developed while he was in the service. He noted that it seemed "quite apparent that immediately upon discharge from the service he was showing the signs and symptoms of a schizophrenic illness." At a May 1996 VA examination, the veteran was diagnosed as suffering from PTSD as a result of childhood trauma. In addition, the examiner diagnosed personality disorder, not otherwise specified. The examiner reviewed the claims folder and interviewed the veteran. He opined that, in his clinical experience, "the veteran's military service did exacerbate his personality disorder and childhood trauma related [PTSD]." The examiner did acknowledge the subjective nature of his opinion. In addition, as noted hereinabove, a VA examination was conducted in February 1997. The examiner diagnosed schizophrenia, undifferentiated type. The examiner noted that it was unclear whether the veteran suffered from PTSD. He stated, however, that he believed that the veteran may have been experiencing psychotic phenomenon during his Vietnam service. Although there is conflicting medical evidence concerning the nature of the veteran's psychiatric disability and its date of onset, the Board notes that the veteran complained of nervousness during service. Furthermore, the VA examinations support the veteran's assertions that the currently demonstrated schizophrenia began in service. The only truly negative medical evidence is the 1996 VA examination, which does not diagnose schizophrenia; however, even that examiner opined an aggravation during service of a preexisting psychiatric disorder. In light of the medical evidence indicating that the veteran has schizophrenia which began in service, the Board finds that the evidence is in relative equipoise in this regard. Thus, by extending the benefit of the doubt to the veteran, the Board finds that service connection for schizophrenia is warranted in this case. 38 C.F.R. § 3.102. The Board has disposed of the claim on a ground different from that of the RO, that is, whether service connection is warranted rather than whether new and material evidence has been submitted, but the veteran has not been prejudiced by the Board's decision. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). II. Increased rating Factual background A private psychiatric evaluation was conducted in February 1992. It was reported that the veteran had married at the age of 36 years, but was divorced three years later. It was noted that the veteran was employed as a bookkeeper for ten years from age 30 to 40 years, but that he quit when his mental status rapidly deteriorated. The diagnoses were those of schizoaffective disorder and PTSD. In April 1992, a VA examination was conducted. The examiner noted that the veteran had few friends. He did not discuss the veteran's industrial capabilities, and a Global Assessment of Functioning (GAF) score was not assigned. The examiner diagnosed PTSD and borderline personality disorder. In April 1995, another VA examination was conducted. The veteran reported having one friend. The examiner diagnosed generalized anxiety disorder. It was reported that the veteran had severe industrial impairment. In November 1995, another VA psychiatric examination was conducted. The examiner diagnosed PTSD and personality disorder. It was noted that the veteran was pursuing psychotherapy and psychiatric treatment in order to gain more ability to function interpersonally; however, the examiner stated that, until then, he would have great difficulty occupationally. The examiner assigned a GAF score of 40, which indicated avoidance of friends, neglect of family and an inability to work. In February 1997, the veteran underwent another VA psychiatric examination. The examiner noted that the veteran had a psychotic disorder that was chronic, severe and impaired his thinking, judgment, mood and interpersonal, social and family relations. The examiner also indicated that the veteran was incompetent to handle his own funds and recommended that a payee be put in place. The diagnoses were those of schizophrenia and personality disorder. A GAF score of 35 was assigned which indicated an inability to work. Private medical reports dated in February 1997 are consistent with the VA examination reports. The diagnosis was that of schizophrenia, and a GAF score of 38 was assigned. A VA psychological evaluation was conducted in April 1998. The examiner diagnosed schizophrenia and assigned a GAF score of 40. Private and VA outpatient treatment reports during the period of this appeal are consistent with the VA examinations conducted. Analysis The Board finds that the veteran's claim that a higher rating is warranted for his service-connected psychiatric disability is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Shipwash v. Brown, 8 Vet. App. 218 (1995). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's psychiatric disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's service-connected psychiatric disability is rated as 30 percent disabling, under the provisions of 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). Effective on November 7, 1996, 38 C.F.R. § 4.132 was redesignated as 38 C.F.R. § 4.130 which included new rating criteria for psychiatric disorders. Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The general rating formula for mental disorders under the new rating criteria are as follows: a 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent evaluation requires occupational and social impairment with reduced reliability and productivity due to flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment or abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation requires occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130 including Diagnostic Code 9411 (1998). Under the old rating criteria, the evaluation for the veteran's service-connected PTSD is based on the degree of impairment of his social and industrial adaptability. A 30 percent rating is warranted when the ability to establish or maintain effective and wholesome relationships with people is definitely impaired, with psychoneurotic symptoms resulting in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. A 50 percent rating is warranted when the ability to establish or maintain effective or favorable relationships with people is considerably impaired, with psychoneurotic symptoms resulting in such reduction in the reliability, flexibility, and efficiency levels as to result in considerable industrial impairment. A 70 percent rating is warranted when the ability to establish and maintain relationships is severely impaired, with psychoneurotic symptoms of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent rating is assignable when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community and the claimant is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132 including Diagnostic Code 9411 (1996). In light of the Board's grant of service connection for schizophrenia, the Board will construe the veteran's claim for an increased rating for his service-connected psychiatric disability generally. Although the psychiatric evidence is somewhat split regarding the proper diagnosis, there is general agreement on the degree of psychiatric disability. Further, the criteria for rating schizophrenia and PTSD are the same under the new schedule and very similar under the old. In light of the Board's decision hereinbelow, the veteran has not been prejudiced by this action. Bernard v. Brown, 4 Vet. App. at 392-94. In Johnson v. Brown, 7 Vet. App. 95 (1994), the Court held that any one of the criteria in 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996) is a separate and independent basis for an award of a total disability rating. As such, the Board finds that evaluating the veteran's condition under the old criteria is more favorable. Furthermore, the evidence indicates that the veteran is unable to obtain or keep a job as a result of his psychiatric disability. That is, the veteran is demonstrably unable to obtain or retain employment. Accordingly, the Board finds that the clinical evidence supports the assignment of a 100 percent rating under the old rating criteria. The Board has considered whether the veteran is entitled to a "staged" rating for his service-connected psychiatric disorder as prescribed by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds, however, that the veteran's service-connected psychiatric disorder is shown to have warranted the assignment of a 100 percent rating during the entire course of this appeal. ORDER As new and material evidence has been received, the claim of service connection for schizophrenia is reopened and found to be well grounded. Service connection for schizophrenia is granted. A 100 percent rating for the service-connected psychiatric disorder is granted. To this extent, the appeal is allowed subject to the rules and regulations governing the payment of monetary benefits. STEPHEN L. WILKINS Member, Board of Veterans' Appeals