BVA9501998 DOCKET NO. 93-17 454 ) DATE ) RECONSIDERATION ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated in April and July 1992 of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky, (RO) which denied the benefit sought on appeal. The veteran, who had active service from December 1977 to December 1982, appealed those decisions to the BVA, and the case was received at the Board in August 1994. An October 1984 rating decision denied service connection for a psychiatric disorder. The veteran was notified of that determination and of his appellate rights by a letter dated in October 1984. An appeal was not filed. A rating decision dated in May 1989 continued the denial of service connection for a psychiatric disorder, and a BVA decision dated in May 1990 affirmed that decision. Arguments presented by the veteran's representative in connection with his current appeal have been construed as requesting reconsideration of the Board's May 1990 decision. In June 1994, reconsideration of the Board's May 1990 decision was ordered, and this decision replaces the Board's May 1990 decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefit sought on appeal. He maintains, in substance, that the October 1984 rating decision was clearly and unmistakably erroneous in denying service connection for a psychiatric disorder. While it is argued that new and material evidence has been submitted which is sufficient to reopen the previously denied claim for service connection, it is primarily argued that the October 1984 rating decision was clearly and unmistakably erroneous and should be modified to grant service connection. It is pointed out that schizophrenia was first diagnosed while the veteran was on active duty and that there is insufficient evidence to conclude that a schizophrenic disorder preexisted service. Furthermore, it is contended, even assuming that a schizophrenic disorder existed prior to service, that the evidence demonstrates the disorder was aggravated beyond the natural progression of the disorder during the veteran's period of military service. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the October 1984 rating decision was clearly and unmistakably erroneous in denying service connection for schizophrenia, and that the preponderance of the evidence supports the claim for 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 RO. 2. The October 1984 rating decision, which denied service connection for schizophrenia, was not supported by the evidence then of record or consistent with VA laws and regulations then in effect. 3. Private medical records dated in February 1977, prior to the veteran's entry on to active duty, show that the veteran received treatment for a withdrawing reaction of adolescence and an unspecified drug dependence. 4. A report of a physical examination performed in October 1977 in connection with the veteran's entry on to active duty contains no pertinent clinical findings or diagnosis. 5. Service medical records show that in May 1982 the veteran was hospitalized for treatment of schizophrenia which service physicians concluded existed prior to service and was aggravated during service. 6. The veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, and the evidence does not demonstrate that schizophrenia preexisted service. CONCLUSIONS OF LAW 1. The October 1984 rating decision, which denied service connection for a psychiatric disorder, was clearly and unmistakably erroneous. 38 U.S.C. §§ 331, 332 (1982); 38 C.F.R. §§ 3.102, 3.105, 3.303, 3.304 (1984). 2. Schizophrenia was incurred during or aggravated by active service. 38 U.S.C. §§ 331, 332 (1982); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1984). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran's claim is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. An October 1984 rating decision denied service connection for a psychiatric disorder on the basis that the disorder existed prior to service and that there was no evidence of aggravation during service. The veteran was notified of that determination and of his appellate rights by a letter dated in October 1984. That unappealed decision is final in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 3.105 (1993). Subsequently, a May 1989 rating decision again denied service connection for a psychiatric disorder on the basis that the evidence did not present a new factual basis to warrant service connection for schizophrenia. The veteran appealed that determination to the BVA, and a May 1990 Board decision affirmed the RO's continuation of the denial of service connection. Procedurally, in the context of the current appeal, a May 1992 rating decision determined that new and material evidence had not been submitted subsequent to the May 1989 rating decision to reopen a claim for service connection. A July 1992 rating decision determined that the October 1984 rating decision was not clearly and unmistakably erroneous in denying service connection for a psychiatric disorder. The veteran appealed those decisions to the BVA, and the veteran's representative presented arguments to the effect that the May 1990 BVA decision contained obvious error. Those arguments were construed as a motion for reconsideration of the Board's May 1990 decision, and reconsideration of that decision was ordered in June 1994. Given the decision reached in this case, the Board will only address and discuss whether the October 1984 rating decision was clearly and unmistakably erroneous. The United States Court of Veterans Appeals (Court) has defined clear and unmistakable error as an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. Oppenheimer v. Derwinski, 1 Vet.App. 370, 372 (1991). The Court has also held that such error "must be based on the record and the law that existed at the time of the prior...decision." Russell v. Principi, 3 Vet.App. 310, 314 (1992). The mere misinterpretation of facts does not constitute clear and unmistakable error, Thompson v. Derwinski, 1 Vet.App. 251, 253 (1991), and the error must be one which would have manifestly changed the outcome at the time that it was made. Kinnaman v. Derwinski, 4 Vet.App. 20, 26 (1993). "It is the kind of error, of fact or of 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, 43 (1993). The evidence which was of record at the time of the October 1984 rating decision consisted of private medical records dated before and after the veteran's period of military service, and his service medical records. The private medical records dated prior to service in February 1977 show that the veteran was seen for a psychosocial evaluation with a chief complaint that he "wanted to stop using drugs." Mental status examination disclosed the veteran was oriented as to time, place and person. His memory was described as intact, intelligence as average, and his judgment as good. The veteran's mood was mildly depressed, his affect was appropriate and his insight was good. While there were ideas of reference, there were no ideas of persecution, delusions or auditory hallucinations. Following the evaluation, the diagnostic impressions were withdrawing reaction of adolescence and unspecified drug dependence. The veteran's service medical records include a Report of Medical Examination and a Report of Medical History performed and recorded in December 1977 in connection with the veteran's entry on to active duty. Neither record contains any pertinent evidence reflecting the presence of a psychiatric disorder. The veteran's service medical records also include records dated in 1978 and 1979 which contain no evidence of complaints, clinical findings, treatment or diagnosis of a psychiatric disorder. In May 1982, service medical records reflect treatment for schizophrenia. Records of the veteran's initial hospitalization for treatment of schizophrenia in early May 1982 indicated that the veteran was returning from being absent without leave for the previous two years. Mental status examination of the veteran "revealed auditory and visual hallucinations, paranoid ideation, depressed mood and flat affect." During that hospitalization a history was obtained from the veteran which indicated that he had been treated in a psychiatric facility at age 13 for drug problems. The veteran was transferred to a regional naval medical center for further evaluation and probable processing for discharge. Further evaluation resulted in the veteran's separation from service due to paranoid-type schizophrenia. The Report of Medical Board dated in July 1982 indicated that service physicians were of the opinion that the veteran's schizophrenia existed prior to service and was aggravated during service. That report indicated that the information concerning the veteran's disability was apparently obtained entirely from the veteran. The medical evidence dated following service which was available to the RO in 1984 consisted of a September 1983 psychosocial evaluation from the same medical facility that evaluated the veteran prior to service. That evaluation indicated that the veteran's schizophrenia was diagnosed during service. The background information recorded indicated that there was no reported history of emotional or behavioral disorders. The diagnostic impression was of paranoid-type schizophrenia. Based on this evidence the RO's October 1984 rating decision indicated that the rating board "concurs in the service department's findings and holds that the nervous condition existed prior to service. There was no evidence of aggravation." Yet, if the rating board concurred in the service department's findings, no rationale was provided as to why the rating board rejected the service physicians' conclusion that the veteran's preexisting schizophrenia was aggravated during service. The rating decision did indicate that the veteran was separated from service without the benefit of severance pay. However, that reference, in and of itself, does not establish that the veteran's disability was not aggravated during service, at least without reference to other evidence apparently not of record, such as records of the Physical Evaluation Board, a line of duty determination or references to naval manuals referred to on the DD Form 214 and not cited by the RO in reaching its conclusion that the veteran's disability was not aggravated during service. While there is some support for the RO's determination that the veteran's schizophrenic disorder preexisted his entry into service, after all, service physicians offered such an opinion and the veteran's DD Form 214 contains that conclusion as a narrative reason for his separation from service, the Board finds that the evidence that was of record in 1984 compelled a conclusion otherwise. It is significant that the RO's October 1984 recitation of the evidence does not refer to the private medical records dated before and after the veteran's period of military service. The records dated prior to service in February 1977 show that schizophrenia was not diagnosed prior to service and the record dated following service in 1983 indicated that schizophrenia was diagnosed during service and that the veteran had no history of emotional or behavioral disorders. It is also significant that the service medical board report relied on to conclude that the veteran's schizophrenia preexisted service was based on information obtained from the veteran at a time when he was experiencing significant symptomatology associated with his disability. For example, the mental status examination disclosed the veteran's thought processes were confused, tangential and circumstantial. He was experiencing auditory hallucinations, loosely constructed paranoid delusions and delusions of reference. While there was no gross defect in his recent and remote memory, his concentration was impaired and his judgment and insight were grossly impaired by his thought disorder. In fact, at the time the medical board report was referred to the physical evaluation board for final adjudication, maximum hospital benefits had not been achieved. Simply put, the conclusion arrived at by service physicians that the veteran's schizophrenic disorder preexisted service that the RO accepted in 1984 was contradicted by other evidence of record which does not appear to have been considered, evaluated or weighed by the RO in reaching its decision. The Board finds that if the preservice medical evidence were carefully evaluated and weighed with the service medical board report, it would have been undeniably apparent that the symptomatology manifested by the veteran prior to service was significantly different than that manifested during service. See 38 C.F.R. § 3.303(c) (1984) ("[P]sychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin.") The RO's October 1984 rating decision also made no attempt to rebut the presumption of soundness which attached to the veteran when he was "examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where evidence or medical judgment is such to warrant a finding that the disease or injury existed before acceptance and enrollment." 38 U.S.C.A. § 332 (1982). The veteran's entrance physical examination contains no evidence which reflects the presence of a preservice psychiatric disability and the veteran served on active duty for a significant period of time following his enlistment before the onset of psychiatric symptomatology was documented. See 38 C.F.R. § 3.303(c) (1984) ("Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof.") The Board finds that there was no competent or probative evidence that the veteran's schizophrenia existed prior to service, and while there might be a medical judgment expressed by service physicians that the disability existed prior to service "[d]eterminations [of preservice existence of a condition] should not be based on medical judgment alone as distinguished from accepted medical principles, or on history along [sic] without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease." 38 C.F.R. § 3.304(b)(1) (1984). Furthermore, "[t]hey should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the peculiar injury or disease or residuals thereof." Id. Based on the foregoing discussion the Board finds and concludes that the correct statutory and regulatory provisions were not applied to the correct and relevant facts. Had the correct statutory and regulatory provisions been applied to all of the evidence of record at the time of the October 1984 rating decision it would not have been possible to find, (1) that the presumption of soundness based on the veteran's entrance examination had been rebutted, (2) that the veteran's schizophrenic disorder preexisted service, or (3) that if the veteran's schizophrenic disorder did pre-exist service, that the disorder was not aggravated during service. Consequently, the Board finds that the October 1984 rating decision which denied service connection for a psychiatric disorder was clearly and unmistakably erroneous, and concludes that the evidence supports a finding that the veteran's schizophrenia had its onset during service. ORDER The October 1984 rating decision which denied service connection for a psychiatric disorder was clearly and unmistakably erroneous in denying service connection, and the benefit sought on appeal is granted. WARREN W. RICE, JR. JACQUELINE E. MONROE ______ CHARLES E. HOGEBOOM (DISSENTING) SHANE A. DURKIN E. M. KRENZER (DISSENTING) ROBERT E. SULLIVAN RENEE PELLETIER BARBARA B. COPELAND (DISSENTING) STEPHEN WILKINS Members, Board of Veterans' Appeals 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. DISSENT We, the undersigned members of the panel, must respectfully dissent from the decision reached by our colleagues to the extent that they would find clear and unmistakable error in the October 1984 rating decision denying service connection for schizophrenia. Generally, we would observe that the rating officials in October 1984 were faced with an exceedingly difficult factual record, replete with inconsistencies and conflicting data. Although it would have been desirable if the rating decision had been more descriptive of the evidence and the reasoning process had been more fully documented, there was sufficient evidence of record, in our judgment, to support the conclusions that were reached regardless of whether we would have reached the same conclusions at the time. Further, to the extent mistakes were made, they were harmless because they would not have changed the outcome. First, with respect to whether schizophrenia existed prior to service, it was far from clear as a factual matter that the conclusion of the service department medical board was erroneous. Contrary to the psycho-social evaluation by the Comprehensive Care Center in February 1977, in which the veteran was the only informant, the service department medical board had obtained an extensive description of the veteran's family history from his sister and this information was obviously relied upon by the medical board in concluding that the veteran's symptomatology had developed after the death of his father in early adolescence. Further, the report of a Paducah Mental Health Center psychiatric screening of the veteran in August 1981, upon a "mental warrant" by the veteran's mother, noted that the veteran had "been in treatment with the Mental Health system, the last date being 1977." Although not specific, this was further evidence of prior psychiatric treatment and not inconsistent with the history later given to the service department medical board by the veteran. This information had been obtained by the RO on the veteran's behalf in September 1984 and was of record at the time of the rating decision in question. Secondly, we would find that the RO's apparent failure to apply the presumption of soundness was harmless error. There was sufficient information of record to rebut the presumption, in our judgment, not the least of which was the medical board conclusion--the only medical opinion of record regarding the etiology of the veteran's mental illness in service. The veteran, who was diagnosed as not being overtly psychotic in May 1982 by the service department but having hallucinations and delusions of mind control, reported that he had "something like a diamond" behind his right eye, and had "had this feeling for many years--even prior to enlistment," but had resisted its attempts to control him. There was no medical opinion of record to dispute the medical board conclusion after extensive evaluation of the veteran that schizophrenia symptomatology developed in early adolescence and the service department reported no reason to doubt the reliability of the clinical data obtained in evaluating the veteran. Finally, there was evidence to support a conclusion in the October 1984 rating decision that the veteran's schizophrenia was not aggravated by service, despite the RO's summary and the inaccurate statement that there was no evidence of aggravation. The most obvious evidence, of course, was the medical board finding of aggravation. The RO's failure to recognize this evidence, however, was harmless error when all the facts before the rating officials were taken into consideration under the applicable legal standards. During peacetime service, a preexisting disability will be considered to have been aggravated only where (1) there was in increase in disability during such service and (2) such increase, if present, was not due to the natural progress of the disease. See 38 U.S.C. § 353 (1982); 38 C.F.R. § 3.306(a) (1984). The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence shows that the increase in severity was not normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service. See 38 C.F.R. § 3.306(c) (1984). In the case at hand, it was far from clear, in our judgment, based on the evidence available to the rating specialists in October 1984, that the veteran was significantly worse off as a result of service. According to the service medical board summary of hospitalization in July 1982, the veteran had been easily manageable throughout his hospitalization and had no particular complaints. Although he had little insight into his psychiatric illness, he reportedly felt better than he had prior to coming into the service. He was alert and oriented, and vaguely paranoid. He described his delusional belief that he had lenses placed in his eyes and a buzzing apparatus placed in his brain as a "silly superstition." He was considered capable of managing his affairs. Further, reports from the Paducah, Kentucky, mental health center in August and September 1983, nearly a year after service, disclosed that the veteran was living with family members. Although he had had medication refilled locally, he had not seen a doctor since service. He was described as mildly depressed because he had not found employment, but his orientation and memory were good. He denied use of alcohol or drugs. Functionally, at least, this was not a significantly different situation than prior to service. Assuming, without conceding, for discussion purposes that there had been an increase in the veteran's level of emotional disability during service, it remained for consideration whether this was due to natural progress of the condition. If so, it could not have been concluded that the disease was aggravated for purposes of service connection. In this regard, the veteran served entirely during peacetime. Reports of psychological evaluations of the veteran while in police custody in connection with civil commitment procedures in August and November 1981, describe paranoid ideations and thoughts of persecution without any references to service as causal factors. Indeed, the veteran had been AWOL since September 1980 and was apparently living at home. A psychologist in November 1981 reported that the veteran was clearly in need of psychological help, but it would have been difficult to imagine circumstances more remote from service. In short, the record before the rating board in October 1984 provided a plausible basis for concluding that schizophrenia existed prior to service and was not aggravated by service. Although we would not find clear and unmistakable error in the 1984 rating decision denying service connection for schizophrenia, we would conclude that new and material evidence sufficient to reopen the claim had been presented. Of particular significance is a report of psychiatric hospitalization at Western State Hospital in November and December 1991. Based on history from the county referral source, the hospital's own records and the veteran, it was reported that his psychiatric problems first began while he was in the Navy in 1978. Without additional information to determine whether this opinion was based solely on information of record in October 1984, and apparently it was not, the opinion as to the onset of the veteran's mental illness in service must be accepted for purposes of reopening the claim. We would note that no other medical opinion as to the onset of schizophrenia was previously of record apart from the service medical board report. There is no indication, however, that Western State Hospital officials had the benefit of the veteran's service medical records in formulating the history of the veteran's mental illness. Under the circumstances, having reopened the claim, we would refer all the records to an independent medical specialist for an opinion as to the likelihood that the veteran's illness began prior to service, or during service, and if the former, whether his symptoms were a normal progression of the disease. In our judgment, such an opinion is warranted in view of the complex nature of the disease process in question and the conflicting nature of the medical evidence. In support of our decision, we would substitute for Finding of Fact No. 6 the following: 6. There was probative evidence of record in October 1984 that schizophrenia existed prior to service and did not increase in severity during service as a result of factors related to service and apart from the inherent character of the condition. 7. Evidence received since the October 1984 rating decision is new and probative of whether schizophrenia had its onset during service. We would then reach Conclusions of Law as follows: l. The October 1984 rating decision, which denied service connection for a psychiatric disorder, was not clearly and unmistakably erroneous. 38 U.S.C. §§ 331, 332 (1982); 38 C.F.R. §§ 3.105, 3.303, 3.304 (1984). 2. Evidence received since the October 1984 rating decision denying service connection for a psychiatric disorder is new and material, and is sufficient to reopen the prior adverse determination. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1993). In accordance with the foregoing, we would order that the October 1984 rating decision was not clearly and unmistakably erroneous and reopen the claim for service connection for a psychiatric disorder. ___________________________ ______________________________ BARBARA B. COPELAND E. M. KRENZER _________________________________ CHARLES E. HOGEBOOM