Citation Nr: 0000982 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-05 348A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from May 1974 to January 1975. An RO rating decision in February 1976 denied the veteran's claim for service connection for a nervous condition, on the basis that the Service Medical Board considered the veteran's condition to have existed prior to service and to have not been aggravated by service. The veteran was notified of this decision in March 1976, and he did not appeal. RO rating decisions in 1977, 1985, and 1987 determined that the veteran did not furnish any new and material evidence to warrant reconsideration of his claim. In 1987, the veteran appealed the RO's decision to the Board of Veterans' Appeals (Board). A decision by the Board in March 1988 determined that the new evidence submitted by the veteran did not establish a new factual basis to warrant allowance of a claim of entitlement to service connection for schizophrenia. An RO rating decision in October 1992 determined that the evidence submitted by the veteran did not establish that the veteran's preexisting psychiatric condition progressed beyond its natural course during the veteran's short period of active duty. In February 1998, the veteran submitted a request to reopen his claim of entitlement to service connection for chronic schizophrenia. This matter comes to the Board from a March 1998 RO rating decision that determined that there was no basis for reconsideration of the veteran's claim of entitlement to service connection for a psychiatric disorder. The veteran submitted a notice of disagreement in April 1998, and the RO issued a statement of the case in April 1998. The veteran submitted a substantive appeal in April 1998. A hearing scheduled for May 1998 was canceled by the veteran. The veteran submitted additional evidence in May 1998. A supplemental statement of the case issued by the RO in June 1998 determined that new and material evidence was submitted to reopen the veteran's claim, but then denied service connection. Records indicate that the veteran canceled a hearing in May 1999 because of transportation problems. FINDINGS OF FACT 1. By an unappealed RO rating decision of 1992, service connection for schizophrenia was denied. 2. Some of the evidence received since the 1992 RO denial of service connection for schizophrenia has not previously been submitted to VA, bears directly and substantially upon the specific matter under consideration, is neither cumulative nor redundant, and by itself or in conjunction with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 3. On service entry examination in April 1974, no psychiatric disability was noted and it is not shown by clear and unmistakable evidence that a psychiatric disability pre- existed service. 4. Schizophrenia had its onset in service and was manifest to a degree of 10 percent within a year following separation from service. CONCLUSIONS OF LAW 1. The unappealed 1992 RO decision, denying service connection for schizophrenia, was final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.302, 20.1100 (1992). 2. Evidence submitted since the unappealed 1992 RO decision is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). 3. Schizophrenia was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Factual Background The veteran had active service from May 1974 to January 1975. Service medical records at the time of the veteran's enlistment examination in April 1974 report normal neurologic and psychiatric systems. A September 1974 report of the service Medical Board notes that the veteran completed basic training and then went AWOL in August 1974. The veteran surrendered himself in September 1974 and was confined to the stockade. The veteran reported going AWOL out of fear that he was being persecuted by people. The veteran reported that, in the stockade, he experienced severe agitation, assaultive ideation, persecutory delusions, and auditory hallucinations in the form of voices calling to him in a very degrading manner. Records show that the veteran proved to be a very difficult management problem in the stockade, and he was subsequently referred for psychiatric evaluation in view of his overt hallucinatory preoccupation. Records show that the veteran did admit to having substantial emotional problems (in the form of apparent ideas of reference and overt paranoid ideation) prior to entering military service. The veteran did admit to being a very nervous individual upon entering military service with preoccupations that people were "out to get" him and that people were "going to do something bad" to him. The veteran denied any history of medical treatment prior to military service. Records show that the veteran described having a difficult time in basic training at Fort Dix, exacerbated by a lack of friends, and difficulty in adjusting to military discipline. The veteran also described how, by the time he arrived at Fort Gordon after basic training, he did experience marked difficulty in concentration and marked tendencies to detach himself from situations around him. Records show that the veteran gave the impression that he also began experiencing overt hallucinatory preoccupation. Upon examination, the veteran was extremely agitated and quite obviously hallucinatorily preoccupied. He seemed unable to volunteer much information. At one point, he was noted to glance over his shoulder and make some comment toward an apparent visual hallucination. He made reference to voices hollering at him, telling him how he was "no good" and how he was a "punk," etc. He was noted to suddenly look in various parts of the room in response to apparent auditory hallucinations. In brief responses to some questions, his orientation and intellectual capacities appeared grossly intact; insight and judgment were poor. Records show that the veteran was hospitalized for approximately four weeks and maintained on very high doses of medication. The veteran was diagnosed as follows: Schizophrenia, paranoid, psychotic, severe, manifested by extreme agitation and overt delusional and hallucinatory preoccupation; treated and only minimally improved; minimal stress of routine military duty; severe predisposition with history suggestive of marked illness prior to entering military service; marked impairment for further military duty with current severe distortions of thinking and affect. Records show that the veteran required continuing medical care and that he was transferred to a VA facility. It was the opinion of the service Medical Board that the veteran was unfit for enlistment and unfit for retention. The evidence of record at the time of the 1992 RO rating decision consisted primarily of service medical records, a report of the service Medical Board, VA medical records, Social Security records, and private treatment records. This evidence, in general, suggested that the veteran's psychiatric condition existed prior to service and did not progress beyond its natural course during the veteran's short period of active duty. Evidence submitted since the 1992 RO rating decision includes lay statements from members of the veteran's family to the effect that the veteran did not have any medical problems before entering military service, and that he did not take any medications for his nerves prior to military service. B. Whether new and material evidence has been submitted to reopen the claim An unappealed rating decision is final with the exception that a veteran may later reopen a claim if new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156(a) (1999). The question now presented is whether new and material evidence has been submitted since the RO's adverse 1992 decision, denying service connection for a psychiatric condition, to permit reopening of the claim. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1993); Glynn v. Brown, 6 Vet. App. 523, 528-29 (1994); Manio v. Derwinski, 1 Vet. App. 140 (1991). In considering whether the claim may be reopened, a two-step analysis must be employed. First, the Board must determine whether the evidence submitted to reopen the claim is both new and material. Secondly, if, and only if, the Board determines that the evidence is both new and material, the claim is deemed to have been reopened and it must be evaluated on the basis of all of the evidence of record, both new and old. See Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence means evidence not previously submitted to agency decisionmakers 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 first step in the two-step analysis involves two questions: (1) is the newly presented evidence "new," that is, not previously submitted to agency decisionmakers, and not cumulative or redundant; and (2) is the newly presented evidence "material," that is, does it bear directly and substantially upon the specific matter under consideration, and is it so significant that it must be considered in order to fairly decide the merits of the claim? In addition, for the purpose of determining whether a claim 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). There is no requirement, however, that such evidence, when viewed in the context of all of the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Prior to the 1992 RO rating decision, the evidence of record suggested that the veteran's psychiatric condition existed prior to service and was not aggravated in service. The evidence added to the record after the 1992 RO rating decision includes lay statements to the effect that the veteran did not manifest symptoms, nor was he ever diagnosed with any psychiatric condition prior to his entry into military service. This evidence must be considered to fairly evaluate the merits of the claim. Hence, the evidence is "new and material," and the veteran's claim was correctly reopened by the RO. As new and material evidence has been submitted since the October 1992 RO rating decision, the application to reopen the claim for service connection for schizophrenia is granted. C. Entitlement to service connection for schizophrenia Based upon all the evidence of record in support of the claim, presuming its credibility, the claim as reopened is well grounded and no further assistance to the veteran is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991); see also Elkins v. West, 12 Vet. App. 209 (1999). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Board notes that veterans are presumed to have entered service in sound condition except for defects, infirmities, or disorders noted at entrance. 38 U.S.C.A. §§ 1111, 1137 (West 1991); Bagby v. Derwinski, 1 Vet. App. 225 (1991). However, the presumption of soundness may be rebutted by clear and unmistakable evidence that an injury or disease existed prior to service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (1999). The burden of proof is on VA to rebut the presumption. Kinnaman v. Principi, 4 Vet. App. 20 (1993). In this case, VA would have to demonstrate that the veteran's psychiatric condition clearly and unmistakably pre-existed service based on all relevant evidence of record. Crowe v. Brown, 7 Vet. App. 238 (1994). In this case, the evidence of record reflects that the veteran was first diagnosed with "schizophrenia, paranoid, psychotic, severe," while in service in September 1974. His psychiatric condition was manifested at the time by extreme agitation and overt delusional and hallucinatory preoccupation. A report by the service Medical Board noted that the veteran's "severe predisposition with history [was] suggestive of marked illness prior to entering military service." While the veteran did report a prior history of substantial emotional problems in the form of apparent ideas of reference and overt paranoid ideation, as well as reporting nervousness upon entering military service, there was no reference made by the veteran to any pre-service examination or diagnosis by a competent medical professional of any psychiatric condition. To the contrary, the veteran specifically denied any history of medical treatment prior to entering military service. Likewise, post-service medical records reflect the veteran's history of psychiatric episodes beginning in service in 1974. Lastly, the 1998 lay statements by members of the veteran's family, while not in the form of affidavits, also note that the veteran did not have medical problems and did not take medications for his nerves prior to military service. The Board finds these lay statements to be credible, in light of all evidence in the record including the absence of any medical treatment before service, the normal findings on the enlistment examination, and completion of about 3 months active service before the appearance of psychiatric behavior. There is no discernible evidence in support of the service Medical Board's conclusion that the veteran's psychiatric condition pre-existed military service. Determination of the existence of a pre-existing condition must be supported by contemporaneous evidence or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. Miller v. West, 11 Vet. App. 345, 348 (1998). Accordingly, the Board finds that the evidence of record does not clearly and unmistakably shows that the veteran's psychiatric condition existed prior to entry into service. 38 C.F.R. § 3.304(b)(2); Doran v. Brown, 6 Vet. App. 283, 286 (1994); see also Gahman v. West, 13 Vet. App. 148 (1999). Thus, the presumption of soundness is not rebutted, and the Board presumes the veteran to have been in sound condition at the time of entry in May 1974. Parker v. Derwinski, 1 Vet. App. 522 (1991). The veteran was first diagnosed with severe schizophrenia in 1974 while in service. Post-service medical records show evidence of treatment for schizophrenia and periods of hospitalization of the veteran in 1975--within one year of discharge from service--and a continuity of treatment for schizophrenia from 1975 to 1992. Records in the claims folder reflect a diagnosis of chronic paranoid schizophrenia. Having considered all the evidence, the Board finds that it is essentially in equipoise as to whether or not the veteran's psychiatric condition had its onset in service. Under the circumstances, the veteran prevails as to his claim for service connection for schizophrenia with application of the benefit of the doubt in his favor. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for schizophrenia is granted. R. E. SMITH Acting Member, Board of Veterans' Appeals