Citation Nr: 0007582 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-17 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a previously denied claim for service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from November 1973 to April 1974, from August 1975 to January 1976, and from January 1979 to March 1979. This matter arises from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied the benefit sought. The veteran filed a timely appeal, and the case has been referred to the Board of Veterans' Appeals (Board) for resolution. FINDINGS OF FACT 1. An unappealed November 1989 decision by the RO denied the veteran's claim for service connection for a psychiatric disorder. 2. Additional evidence submitted since the RO's November 1989 rating decision bears directly and substantially on the issue under consideration, and is by itself, or in conjunction with evidence previously submitted, so significant that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for a psychiatric disorder. 3. The veteran has submitted evidence of the incurrence of head trauma during service, and has submitted medical evidence of a nexus between that head trauma and his psychiatric disorder. CONCLUSIONS OF LAW 1. The November 1989 rating decision by the RO, which denied the veteran's claim to reopen a previously denied claim for service connection for a psychiatric disorder, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (1999). 2. The evidence received since the RO's November 1989 rating decision is new and material, and the veteran's claim for service connection for a psychiatric disorder has been reopened. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1999). 3. The veteran's claim for service connection for a psychiatric disorder is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the RO decided the veteran's new and material claim on a standard which has since been overruled by the United States Court of Appeals for Veterans Claims (Court) in Elkins v. West, 12 Vet. App. 209 (1999) (en banc); and Winters v. West, 12 Vet. App. 203 (1999) (en banc). The Board finds that the veteran is not prejudiced by consideration by the Board by its initial analysis of his new and material claim under the new case law. See Bernard v. Brown, 4 Vet. App. 384 (1993). In November 1989, the RO denied the veteran's attempt to reopen a previously denied claim for service connection for a psychiatric disorder. This decision hence became final. As such, the claim may only be reopened if new and material evidence is submitted. See 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a) (1999). The Court has set forth a three-part analysis to be applied when a claim to reopen is presented. See Elkins, supra. The first step is to determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to reopen the prior claim. If so, the second step requires a determination of whether the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If the claim is not well grounded, the adjudication process must halt, despite reopening, because a claim that is not well grounded cannot be allowed. See Winters, supra. If the claim is well grounded, then the VA must ensure that the duty to assist has been fulfilled before proceeding to the third step, an adjudication of the merits of the claim. Id. In determining whether new and material evidence has been presented, "new" evidence is that which has not been previously submitted to the agency decision makers and is neither cumulative nor redundant. See 38 C.F.R. § 3.156(a); see generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "Material evidence is that which by itself or in connection with evidence previously submitted is so significant by itself, or in conjunction with evidence previously submitted, is so significant that it must be considered in order to fairly decide the merits of the claim. Id. The evidence submitted at the time of the November 1989 rating decision consisted of the following: 1) the appellant's service medical records; 2) contemporaneous clinical and VA treatment records dating from March 1976 through February 1989; 3) an affidavit from [redacted] dated in January 1985; 4) an affidavit from the veteran's mother dated in August 1989; 5) reports of VA rating examinations dated in February 1982 and August 1989; and 6) multiple and varied statements by the veteran containing a multitude of contentions as to the etiology of his psychiatric disorder. The veteran's service medical records are completely negative for any indication of a psychiatric disorder. However, the records do show that in November 1973, the veteran was treated for a laceration of the scalp. He was noted to have struck a wall with his head, but was not rendered unconscious. At that time, the veteran had complained of experiencing headaches in the parietal area. Skull X-rays were normal, and there were no neurological deficits noted. The veteran has contended that he sustained additional head trauma during a subsequent period of service in 1975, but his service medical records are completely silent as to any such injury. In addition, the reports of the veteran's service separation examinations are completely negative for any indication or complaint of any head trauma or psychiatric disorders. Further, while the veteran and/or his mother have asserted at various points that he was given a medical discharge, there is no indication of such in the veteran's discharge certificate or in his service medical records. The clinical and VA treatment records show that the veteran was first diagnosed with paranoid schizophrenia in October 1981. At that time, and afterwards, the veteran was found to be generally out of touch with reality. Although noting some of the veteran's contentions that he was subjected to various forms of physical abuse during service, the treatment records previously considered by the RO fail to contain any medical opinion linking such abuse to his active service. The report of the October 1981 inpatient treatment shows that the veteran had sustained a head injury during his stay at the psychiatric hospital, and that he experienced swelling about the left temporal region, diagnosed as a hematoma, as a result. However, X-rays of the skull were normal. A letter dated in December 1981 from R. Bhavsar, M.D., Staff Psychiatrist from the Northville Regional Psychiatric Hospital (Northville or NRPH), indicates that a recently conducted EEG showed mildly abnormal results, focal to the right temporal area. The veteran was advised to consult with his private physician regarding the mildly abnormal EEG results. The remainder of the treatment records show that the veteran continued to have diagnoses of chronic paranoid schizophrenia, and that he was involuntarily committed for psychiatric treatment throughout this period. The report of the February 1982 VA rating examination shows that the veteran was accompanied by his mother who stated that he had been struck in and about the head repeatedly while in the service, that he had been repeatedly abused while in service, and that he had behaved in an inappropriate manner ever since his discharge. In addition, the veteran's mother indicated that he had been given a medical discharge. Multiple projections of the skull failed to show any abnormal calcifications or other irregularities. The veteran was found to be actively hallucinating and out of touch with reality at that time, was unable to provide any sort of medical or military history, and was diagnosed with catatonic schizophrenia. The examiner also noted that the veteran's mother engaged in grossly inappropriate behavior during the course of the examination, and was eventually requested to leave the room in order that the veteran could be properly examined. The examiner determined that the veteran was not competent to manage his own affairs, and that he needed long- term psychiatric treatment. However, the examiner did not express any opinion suggesting a link between the veteran's diagnosed schizophrenia and his active service. Of some note was the report of a March 1982 inpatient treatment summary. The report indicates that upon admission, the veteran was actively hallucinating, and generally out of touch with reality. His mother reported that he had suffered from all manner of physical abuse in service, and suggested that he had been mentally unstable since 1976. However, after the veteran had begun taking medication, he had improved after seven days to the point at which he was able to provide a nominally coherent or lucid history. At that time, he did not report any head injuries or family history of psychiatric disorders, per se, but indicated a long history of marijuana and mescaline use. An EEG was judged to be mildly abnormal, but the veteran was not found to suffer from any seizure disorder. The treating physician, M. S. Yousuf, M.D., indicated that the veteran's mother threatened to sue him upon learning of the veteran's impending release from treatment. A signed affidavit from [redacted], dated in January 1985, states that he served with the veteran in Korea in 1974, and that he had witnessed a Specialist 4th Class (SPC) [redacted] regularly harass the veteran by pushing and shoving him around. He also stated that on one occasion, he witnessed SPC [redacted] strike the veteran with a metal object while the veteran was asleep. The veteran's mother submitted a signed affidavit, dated in August 1989, essentially reiterating her earlier contentions that the veteran was subject to all manner of beatings in service, and that his psychiatric disorder began while he was stationed in Seoul, Korea. The report of the August 1989 VA rating examination shows that the veteran was driven to his appointment by his wife, and that he had previous diagnoses of Axis I paranoid schizophrenia. The veteran indicated that he continued to experience voices speaking to him when no one was around, and other delusional behavior. The veteran reported that his first psychiatric hospitalization occurred in the army after he had been beaten by his supervisor, and indicated that he began to hear voices shortly afterwards. The examiner noted that the veteran had been hospitalized on six separate occasions, beginning in 1981. Neither the veteran nor his wife worked at that time, and their sole means of support appeared to be the veteran's nonservice-connected disability pension check. The veteran denied any drug or substance abuse, and reported that he had served in the Army for seven and a half years. He reported experiencing a breakdown while in the Army. The neurological evaluation was within normal limits, and he was diagnosed with paranoid schizophrenia in partial remission with medication. In August 1996, the veteran filed a claim to reopen his previously denied claim for service connection for a psychiatric disorder. Evidence received since the November 1989 final decision consists of: 1) VA and contemporaneous clinical treatment records, dating from October 1981 through August 1998; 2) two versions of an affidavit signed by [redacted], dated in April 1998; and 3) two personal hearing transcripts of testimony given at the RO before a Hearing Officer and before the undersigned Board Member, dated in March 1998 and in November 1999, respectively. The clinical treatment records essentially show that the veteran continued to receive treatment for his diagnosed paranoid schizophrenia from October 1981 when he was first diagnosed with the disorder to August 1998. Treatment records show that he regularly claimed to hear angels speaking to him, and that he was married to "Jesus' daughter." In addition, at various periods, the veteran was noted to have choked his 80+ year old grandfather, assaulted other family members, discharged firearms in his house and on the street, and allegedly shot at his wife from his mother's bedroom window while she was outside the house. Of particular significance in the newly submitted treatment records is an inpatient summary report from the Northridge Regional Psychiatric Hospital, dated in March 1988, containing an Axis I diagnosis of residual schizophreniform illness associated with old severe head injury. The treating physician, D. Gendernalik, M.D., noted that the veteran reported that he had been repeatedly assaulted while stationed in Korea, and that someone "banged his head against the floor and would flip over his bed just because he didn't like him." Dr. Gendernalik stated in his report that the basis for the diagnosis of a schizophreniform illness apparently associated with old head injuries was the veteran's self-reported history of "multiple severe head injuries which he associated with hallucinations." Aside from the veteran's self-reported history of in-service head trauma, the treatment record offered no other basis or justification for the above diagnosis. The veteran had also reported taking "five mescalines per day as well as smoking weed daily for years" in addition to daily alcohol consumption. The veteran subsequently denied any street drug or heavy alcohol use, and stated that he had been employed as a security guard fairly recently. However, the veteran's mother reported that he had been using crack cocaine, mescaline, marijuana, and alcohol on a daily basis. Remaining treatment records only show that the veteran continued to experience psychotic symptoms when he failed to take his medications as prescribed. In November 1994, he underwent a general physical examination for complaints of headaches in which his head was found to be essentially atraumatic without bruits or other indications of head trauma or injury. At that time, a neurological examination also yielded normal results. He was diagnosed with a mixed headache disorder consisting of migrainous and myalgic components. There was no evidence of a focal brain lesion. In March 1998, the veteran, his wife, and children appeared at a personal hearing before a Hearing Officer at the RO. The veteran testified that he sustained a head injury in Korea, but that his medical records reflecting treatment for such injury were lost. The veteran testified, in substance, that one "Spec 4 [redacted]," a barracks mate, dealt heavily in the U.S./Korean black market in all manner of contraband goods ranging from heavy weapons to food ration cards. The veteran indicated that "[redacted]" was afraid that the veteran was about to report his activities to the authorities, and struck the veteran on the head with a metal pipe. The veteran testified that he was rendered unconscious for a period of time, and that he was awakened on the floor of his barracks by North Korean soldiers who performed acupuncture on his head. He stated that he experienced psychiatric problems following this incident, and that his subsequent hospitalizations were attributable to the attack by "[redacted]." The veteran testified that he was given an Article 15, nonjudicial punishment, for his failure to report for duty on the date he claimed to have been attacked. The veteran also indicated that he was treated for a head wound in basic training in November 1973 after another basic trainee had thrown a wall locker across the room, striking him (the veteran) in the head. According to the veteran, he was rendered unconscious, and taken to a dispensary for treatment. However, he indicated that the claimed attack by "[redacted]" occurred some years later while he was stationed in Korea. The veteran testified that he had awakened to "acupuncture" performed by the North Korean soldiers, but that upon awakening, was unable to recall what had happened. In any event, he testified that he did not report the incident at the time, because he was afraid that he would be killed. In addition, the veteran indicated that no one who witnessed the alleged attack was willing to testify for fear of retaliation by "[redacted]" and his black marketeers, but that one [redacted] (sic) was willing to support the veteran's account of events. According to the veteran, he was interviewed by an Army Colonel who determined that he had a psychiatric disorder and transferred him back to the continental United States for a medical discharge. The veteran then stated that he was diagnosed with a psychiatric disorder within a month of his discharge from service. With respect to his subsequent period of active duty from January through March 1979, the veteran testified that he was discharged after military authorities became aware of his prior medical history. The veteran's representative noted that none of his service medical records, covering all periods of active service, including service entrance and service separation examinations, showed a diagnosis of a psychiatric disorder, but the veteran was unable to respond to her query regarding when he was first diagnosed with a psychiatric disorder by civilian medical professionals. He was unable to provide any information as to the unit, location, or other identifying information regarding the alleged Army Colonel who had authorized a "psychiatric" discharge. The veteran then testified that between 1975 and 1979, the voices in his head were sufficiently quiet that he did not feel the need to seek medical attention. The veteran's wife and children testified, in substance that they felt that service connection for a psychiatric disorder was warranted because they did not have enough money, and that the veteran suffered from his paranoid schizophrenia a great deal. Additional affidavits, dated in April 1998, were received from [redacted], stating that the veteran had been repeatedly struck on the head with a metal pipe by "[redacted]," that he had been rendered unconscious, and that he had been taken to a medic for treatment. Mr. [redacted] stated that he was afraid to come to the immediate aid of the veteran for fear of being beaten himself. Mr. [redacted] indicated that the veteran experienced hallucinations and other delusional behavior following that incident. In addition, Mr. [redacted] indicated that the veteran failed to report to the morning formation following this incident, and that he received an Article-15 nonjudicial punishment for failure to report to motor pool duty. A copy of the Article 15 report, DA Form 2627, dated on December 4, 1975, shows that the veteran failed to report to motor pool duty on November 29, 1975, in violation of Article 86 of the Uniform Code of Military Justice (UCMJ). The Article 15 report, signed by both the veteran and his commander, fails to contain any mention of the veteran having been beaten, rendered unconscious, or any incident as currently reported by the veteran and Mr. [redacted]. The veteran and his wife appeared at an additional personal hearing before the undersigned Board Member at the RO in November 1999. The veteran essentially repeated his earlier testimony that he was beaten unconscious by "[redacted]" and subsequently received an Article 15 for his failure to report to formations or duty that day. The veteran testified that he awoke in his barracks in a puddle of blood to find Korean soldiers standing over him. According to the veteran, one of the Koreans stuck a needle into his skull causing excruciating pain, and that he had no recollection of elapsed time. The veteran stated that he reported for duty at the motor pool, but that upon seeing him, a staff sergeant (E-6) drove him to a dispensary. However, the veteran testified that the medic refused to treat him immediately, and the sergeant left him at the dispensary shortly afterwards. He indicated that "[redacted]" regularly kept a 2 1/2-foot pipe by his bed, and that he now has a permanent bump on his head from having been struck with that pipe. He testified that being struck with the pipe and having been stuck with needles by the Koreans resulted in his auditory hallucinations and delusions. In addition, the veteran testified that he had been previously struck in the head by a flying wall locker, but that when he awoke in the hospital, his records had "mysteriously disappeared." The veteran's wife testified that the veteran heard Chinese voices due to having been struck on the head in Korea. Further, both the veteran and his wife testified that he had become a police officer for the Royal Oak Township in Michigan, which he subsequently clarified to indicate that he worked with the police and fire department on an "auxiliary" basis, performing maintenance and routine duties. The veteran and his wife stated that the veteran was continually kicked in the head in service, and that he was afraid to report these incidents at the time. The veteran's wife also stated that he should be granted service connection for his psychiatric disorder because of the their "star witness," [redacted] (sic). Without addressing the additional evidence submitted by the veteran which has little bearing on the outcome of this case, the Board finds that the affidavit submitted by [redacted] [redacted], and the March 1988 treatment record are new, as they were not part of the record at the time of the November 1989 rating decision. Moreover, as this evidence addresses the etiology of the veteran's psychiatric disorder, without regard to the merit of this evidence, the Board finds that it is clearly probative of the central issue in this case, service connection for the veteran's psychiatric disorder. Accordingly, the Board finds that the additional evidence submitted subsequent to the RO's November 1989 rating decision, when considered alone or in conjunction with all the evidence of record, is so significant that it must be considered in order to fairly decide the merits of the veteran's claim for service connection for a psychiatric disorder. As such, this evidence is "new and material" as contemplated by law, and thus, provides a basis to reopen the veteran's claim for service connection for a psychiatric disorder. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In addition, the Board finds that the veteran's claim for service connection for a psychiatric disorder is well grounded. See 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). Specifically, statements by Mr. [redacted], while unsupported by the evidence of record, and the March 1988 medical treatment record, are sufficient to establish a plausible basis for concluding that the veteran was struck on the head with a pipe, and are sufficient to establish a medical nexus between the veteran's currently diagnosed paranoid schizophrenia and his active service. Therefore, the April 1998 statements by Mr. [redacted] and the March 1988 treatment record are sufficient to well ground the veteran's claim for service connection for a psychiatric disorder. However, as discussed further below, the Board emphasizes that the statements by Mr. [redacted] and the report of the March 1988 inpatient treatment are only sufficient to well ground the veteran's claim for service connection. The statement by Mr. [redacted] is not supported by any evidence of record, and the diagnosis rendered in the report of the March 1988 treatment record, Axis I residual schizophreniform illness associated with old severe head injury, appears to be based solely on a history as provided by the veteran, and does not offer any clinical or medical basis for such a conclusion. Accordingly, this evidence while sufficient for the limited purposes of well grounding the veteran's claim for service connection is not sufficient to warrant a grant of service connection. Therefore, as the veteran's claim has been found to be well grounded, it is necessary to remand the case to the RO for further development. ORDER New and material evidence having been submitted, the veteran's claim for service connection for a psychiatric disorder has been reopened. The veteran's claim for service connection for a psychiatric disorder is well grounded, and to this extent only, the appeal is granted. REMAND As noted, the veteran's service medical records show that he sustained a laceration to his scalp in November 1973, and had complained at that time of experiencing an aching in the parietal area after having allegedly struck a wall with his head. In addition, he has submitted evidence, notably two affidavits from a former comrade in arms, [redacted], as discussed above, stating that he witnessed the veteran being physically abused and struck about the head with a metal pipe by another soldier. Mr. [redacted] stated that as a result of this alleged incident, the veteran was rendered unconscious and was taken for treatment shortly thereafter. He has indicated that the veteran experienced hallucinations and other signs of dementia afterwards. While there is no evidence in the veteran's service medical records supportive of the veteran's and Mr. [redacted] statements and assertions, the veteran was nonetheless diagnosed in March 1988 with Axis I residual schizophreniform illness, associated with an old severe head injury, by one D. Gendernalik, M.D., of the Northville Regional Psychiatric Hospital. Dr. Gendernalik went on to state that the sole basis for the above diagnosis was the veteran's self-reported history of having sustained multiple severe head injuries which he had associated with hallucinations. The Board finds that while there may be an issues with respect to the merit or credibility of this evidence, it does establish the required medical nexus between alleged head injuries in service and the veteran's diagnosed psychiatric disorder. In this regard, the Board re-emphasizes that the above- discussed evidence is sufficient to well-ground the veteran's claim only. It does not, by itself, constitute a basis for a grant of service connection, particularly in view of the apparent lack of factual support in the record. Therefore, inasmuch as the Board finds that the April 1998 statement by Mr. [redacted] and the March 1988 treatment record constitute new and material evidence, and are sufficient to well ground the veteran's claim for service connection, the case must be remanded to the RO in order for additional development to be undertaken, and then for the veteran's claim to be considered on a de novo basis on the merits. Therefore, in light of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. After contacting the veteran and obtaining any necessary authorization, the RO should obtain and associate with the claims file all medical records pertaining to his psychiatric disorder, dated since the time of the last request for such information. 2. The veteran should be scheduled to undergo neurological and psychiatric examinations to determine if the veteran currently suffers from any residuals of a head trauma which may have been incurred in service, and to offer an opinion as to the etiology of his psychiatric disorder, variously diagnosed as paranoid schizophrenia. The examiner conducting the neurological portion of the examination is requested to offer an opinion as to whether there is any current indication of any head trauma, based upon examination, which may have been incurred in service. The examiner conducting the psychiatric portion of the examination is requested to offer an opinion as to whether the veteran's psychiatric disorder was caused by the alleged head trauma, particularly in view of the March 1988 treatment record containing a diagnosis of Axis I residual schizophreniform illness apparently associated with "old severe head injuries," and all other relevant medical evidence. In addition, the examiner is requested to offer an opinion as to the validity of the March 1988 diagnosis in light of the available clinical evidence and in light of the examination of the veteran. The veteran's claims folder should be made available to the examiners for review in advance of the scheduled examinations. All indicated studies and tests should be performed. The examiners are expressly requested to include in their written reports complete rationales in addition to the clinical evidence used as bases for all opinions expressed. 3. Upon completion of the above- requested development, the RO should review the psychiatric examination report to ensure that it complies with the directives set forth above. If it does not, all appropriate action should be undertaken to ensure compliance. The RO should then adjudicate the issue of entitlement to service connection for a psychiatric disorder on a de novo basis. If the determination remains unfavorable to the veteran, he and his representative should be furnished with a supplemental statement of the case, and be provided an opportunity to respond prior to referring the case back to the Board for further review. The purpose of this REMAND is both to obtain additional information and to accord the veteran due process of law. The Board does not intimate any opinion as to the merit of the veteran's claim, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals