BVA9501075 DOCKET NO. 92-55 188 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether there was clear and unmistakable error in a rating decision of October 1, 1979, which denied service connection for schizophrenia. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from May 1978 to April 1979. By rating decision of October 1, 1979, service connection for schizophrenia was denied on the basis that the veteran had been diagnosed during service as having latent schizophrenia, which was not a disability under the law. The veteran was notified of that decision, and his appellate rights, but did not initiate an appeal and it became final. In light of the Board's decision with respect to whether there was clear and unmistakable error in the rating action of October 1, 1979, the remaining issue of entitlement to service connection for a psychiatric disorder is moot. This matter comes before the Board on appeal from a June 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina. The case was remanded by the Board in November 1992 for development. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has chronic undifferentiated schizophrenia which had its initial manifestations during his active service. It is asserted, in substance, that since the service department changed the diagnosis for the veteran's disability from schizophrenia, latent type, to schizophrenia, residual type, he had an acquired psychiatric disability, causing the October 1979 rating decision to be clearly and unmistakably erroneous. 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 there was clear and unmistakable error in the October 1, 1979, rating decision, and that the record supports a grant of service connection for schizophrenia. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office (RO). 2. The unappealed October 1, 1979, rating decision which denied service connection for schizophrenia was not supported by the evidence then of record and thus was not a reasonable exercise of rating judgment. 3. The veteran's currently diagnosed schizophrenia was initially manifested during his active service. CONCLUSION OF LAW The October 1, 1979, rating decision denying service connection for schizophrenia was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1131 (West 1991); 38 C.F.R. § 3.105(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). It has been contended that the October 1, 1979, rating decision which denied the veteran service connection for schizophrenia was clearly and unmistakably erroneous. Clear and unmistakable error is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet.App. 40 (1993). The Board must address this claim by evaluating the evidence of record at the time of the rating action in question. While a contention has been set forth which reflects that the service department changed the diagnosis with respect to the veteran's permanent retirement disability from service, this action occurred in 1983 and was not of record at the time of the October 1, 1979, rating decision. Therefore, it may not be considered in determining whether or not that rating decision was clearly and unmistakably erroneous. Service medical records reflect that the veteran was discharged from active service after being evaluated by a medical board. The report of a service psychiatric examination states the diagnosis as schizophrenia, latent type, chronic, moderate, manifested by social and functional disability, ideas of reference and influence, distrust and early projective suspicions and affect disturbance. The March 1979 medical board report indicates the diagnosis as "schizophrenia, latent type (DSM II-295.5)." It indicates that the disability was incurred while entitled to basic pay and did not exist prior to service. The March 1979 report of a service physical evaluation board states the diagnosis as schizophrenia, latent type, with definite impairment of social and industrial ability which was incurred while entitled to receive basic pay. The associated narrative summary indicates that the veteran's condition was manifested by ideas of reference and influence, distrust, early projective suspicions and affect disturbance. It was indicated that the disability was not permanent and the veteran was recommended for temporary retirement. At discharge, the veteran was on Stelazine, 5 mgs., b.i.d. An independent medical expert, Steven R. Steury, M.D., following a review of the in- and post-service evidence, concluded that the current diagnosis was schizophrenia, undifferentiated type. The above information was of record at the time of the October 1, 1979, rating decision, which found that latent schizophrenia was not a disability under the law, but rather a constitutional or developmental personality disorder, and that in the absence of evidence of active psychosis either in service or within the presumptive period subsequent to service, service connection could not be granted. The Board finds the October 1, 1979 rating action to be without support. The rating decision in question cites a VA manual then in effect, PG 21-1, Section O-12, which stated that latent schizophrenia was not a true psychosis and therefore was not a disability which warranted service connection. It was suggested that claims for latent schizophrenia should be handled similarly to claims for service connection for personality disorders. No medical basis for this manual provision was provided. The Diagnostic and Statistical Manual of Mental Disorders, (Second Edition 1968), (DSM-II), lists latent schizophrenia under the catagory of "PSYCHOSES NOT ATTRIBUTED TO PHYSICAL CONDITIONS LISTED PREVIOUSLY"; DSM-II contains a separate chapter for personality disorders. In the present case, the service department physicians who evaluated the veteran held that his psychiatric condition has been incurred in service. At the time of the veteran's discharge, psychotropic medication was prescribed for him. Given the classification of latent schizophrenia in DSM II, the edition in effect at that time, and the findings by the service department physical evaluation board, the Board finds that the October 1, 1979 rating decision was not a reasonable exercise of rating judgement and thus was clearly and unmistakably erroneous in not granting service connection for schizophrenia. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.105(a). ORDER Clear and unmistakable error in a rating decision of October 1, 1979 having been shown, service connection for chronic undifferentiated schizophrenia is granted. WAYNE M. BRAEUER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.