BVA9503938 DOCKET NO. 93-04 219 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a psychiatric disability, currently diagnosed as a psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Lois N. Petzold, Associate Counsel INTRODUCTION The veteran had active service from August 1961 to March 1964. This appeal arises from an October 1991 rating action of the San Diego, California, Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a psychiatric disorder. The case was remanded for additional development in September 1993. Subsequently, by rating action in May 1994, the RO determined that new and material evidence had been submitted to reopen the veteran's claim for service connection for a psychiatric disorder, but that entitlement to service connection was still not warranted. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he was beaten and was given forced injections of test drugs while confined in the brig during service. He asserts that his current psychiatric disorder was caused by this inhumane treatment, and that service connection is warranted. 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 new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disability but that the preponderance of the totality of the evidence is against the claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for a psychiatric disability was denied by Board decision in July 1991. 3. Additional evidence submitted since that time establishes the presence of a psychosis postservice. 4. The additional evidence does not establish that the psychosis had its onset in service or was manifested during the veteran's first year postservice. CONCLUSIONS OF LAW 1. New and material evidence submitted to reopen the veteran's claim for service connection for a psychiatric disability has been presented, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 1991); 38 C.F.R. § 3.156(a), 20.1105 (1993). 2. A psychosis was not incurred in or aggravated by service, nor may a psychosis be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The evidence of record at the time of the July 1991 Board decision included the veteran's service medical records. His July 1961 enlistment examination revealed no complaints referable to the psyche, and the psyche was normal on examination. In December 1963 the veteran underwent psychological testing while in the brig awaiting further trial proceedings. The psychologist's impressions included an indication of a good deal of religiosity and a degree of grandiosity, delusional in character. There was rigidity and moderate concreteness in thinking as well as regressive features and defective capacity to adapt. The veteran was described as a very hostile individual who has known life-long emotional deprivation and was bitter and markedly resentful. There was evidence of defect in character structure, with anal-aggressive and subtle hysterical and repressive mechanisms, in the absence of a clearly defined neurotic illness. The examiner felt the evidence of organic involvement fell short of being convincing, although the veteran showed noticeable lowering in intellectual tasks. He showed considerable variability in the Wechsler Adult Intelligence Scale, which was difficult to explain. The examiner noted that cultural limitations and emotional distress contributed to the variability but borderline cerebral deficits could not be excluded. The data did not support the presence of an organic brain disease process. The severity of the veteran's functional distress was evidenced by pervasive anxiety, evidence of ego decompensation, and disturbed, delusional fantasy. The examiner felt a history of borderline schizophrenic adjustment could be anticipated, and against a background of high social deprivation, along with a defect in character growth, the veteran's present reaction could well be of psychotic proportions. In January 1964, it was noted that the veteran was making inexact complaints of persisting nausea since his arrival in the brig. The veteran was treated with Compazine. When treated two days later, he stated that his behavior would be better. It was noted that since the injection of Compazine, there had been a gradual onset of extra pyramidal signs in the veteran. The following day, it was noted that because of the improvement in the veteran's behavior, he was kept on Compazine. When treated two days late, it was noted that psychological testing had revealed no organicity. Later that month, the veteran was hospitalized for psychiatric evaluation. The veteran claimed that he had been put in the brig because his beliefs were at odds with the Marine Corps in that he did not believe in killing. He refused to obey and carry out orders. It was noted that the veteran had been in trouble almost constantly since August 1963. He had a history of being confined to the brig, as well as special court-martials, for failing to obey orders. He said he was put in the brig in November 1963 because upon being told to get a haircut, he replied that he had already gotten one. When the officer started cussing, the veteran said that the cussing offended him. While in the brig, he refused to stand at attention, because God had created all men equal. He also refused to wear a uniform or walk to the Commanding Officer to receive office hours because he did not believe in the Marines or an officer's authority. After seven days withholding food from the veteran, it was decided to put him on diminished rations in solitary confinement. The veteran said that he did not care how much punishment was imposed on him, he would no longer violate his religious beliefs and submit to the authority of the Marine Corps. The veteran also mentioned that he was trying to obtain an administrative discharge as a conscientious objector. On examination, the veteran was hostile, sullen, and superficially cooperative. He exhibited a rebellious attitude and behavior. It was noted that the veteran was a boxing champion, and that some of his current difficulties were probably due to the fact that he could not enter the combined service matches because of an "URI (upper respiratory infection). The diagnosis was schizoid personality, chronic, severe, in an unsociable, seclusive, serious-minded individual, preoccupied with religion, in a long-standing passive-aggressive personality whose current behavior in the brig was mostly passive, as manifested by his pouting, stubbornness, procrastination, inefficiency, and passive-obstructionism. His preoccupation with religion seemed to be mostly a defensive measure to rationalize his behavior. It was recommended that the veteran be strongly considered for administrative separation for unsuitability to the Marine Corps. The examiner felt that the veteran's behavior precluded his being capable of useful service, and the veteran had a potential for violence. The veteran was discharged in March 1964. At discharge examination, his psyche was reported to be normal. Based on this evidence, the Board denied the veteran's claim for service connection by decision dated in July 1991. It was determined that the veteran had a schizoid personality disorder in service, which is a developmental abnormality and not a disability for purposes of entitlement to VA compensation benefits. It was also determined that there was no evidence of the presence of a psychiatric disability postservice. The July 1991 Board decision is final and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1105. In order to reopen a claim, the veteran must present or secure new and material evidence with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). A two-step analysis is employed to determine whether the claim is reopened. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, it must be determined whether the evidence is new and material, and if it is, the case must be reopened and evaluated on the merits taking into consideration all the evidence, old and new. New evidence means more than evidence which was not previously of record. To be new, additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Similarly, the additional evidence must be material. That is, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. Smith v. Derwinski, 1 Vet.App. 178 (1991). Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131. Where a veteran served ninety days or more during a period of war or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease or injury diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects as such are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). The veteran sought to reopen his claim for service connection for a psychiatric disorder in October 1991. The evidence received since the Board's July 1991 decision may be briefly summarized. An October 1990 letter from A. J. Rooks, M.D. to the VA explained that the veteran was seen initially in September l990. He stated that he had a prior diagnosis of schizophrenia and manic depressive disorder. The veteran reported that in 1964, the Marine Corps had given him a diagnosis of schizoid personality disorder and passive-aggressive personality disorder. He said he had been a boxing champion in service and had orders to train for the Olympics, but he resented having to do his "soldiering", and was put in the brig. He claimed that he was tortured, and drugs were used as punishment, until he fell apart and could not stop crying. He said other incorrigible prisoners were treated the same way, and one died. He complained of auditory and visual hallucinations. He indicated that he wanted a diagnosis of schizophrenia so that he could get VA benefits. Dr. Rook's current diagnostic opinion was schizoaffective disorder, and schizoid personality disorder. Dr. Rooks noted that the veteran did not look psychotic, and responded too fast to his medication. Therefore, Dr. Rooks wondered about the validity of the veteran's history. A March 1991 letter from Dr. Rooks to the Department of Social Services indicated that he was still treating the veteran, and he seemed too energetic on his antidepressant medication. Dr. Rooks noted that the veteran seemed to desire the diagnosis of schizophrenia and antisocial personality, but feared that the veteran did so in an attempt to get VA benefits. The veteran's style was one of irritability, typical of antisocial personality disorder. Dr. Rooks said the veteran did not strike him as being schizophrenic, and he was not convinced the veteran's stories of psychotic behavior and thinking were true. He felt the veteran tended to distort the truth to suit the circumstances, and he did not believe the veteran's problem to be one of paranoid schizophrenic delusions. A September 1991 letter from this same physician to the Department of Social Services explained that he had been seeing the veteran once a month. The veteran continued to display an irritable mood, with much complaining about the government, particularly the VA, for telling him there was no evidence that he had a psychiatric disorder. He said he believed that Agent Orange had a psychological effect on him, but was very vague about it. He reported previous arrests for armed robbery, assault, and a few DWI's. He reported occasional flashbacks of Vietnam, but they were not overly intrusive or persistent. The diagnoses were schizoaffective disorder, depressed; schizoid personality; paranoid personality traits; and antisocial personality traits, diminished. The file also contains a copy of a February 1992 psychological evaluation of the veteran by C.C. Rath, Ph.D., for Social Security disability determination purposes. The veteran reported that he was found unsuitable for military service because of violence and psychotic manic depressive episodes with antisocial behavior. He said he was put in the brig many times and tortured with mind-altering test drugs. He claimed to be in a coma for a week after an experimental drug treatment in the brig. He felt the military tried to reform him, but released him when it did not work. As a juvenile, the veteran reported that he had numerous criminal charges, including armed robbery, assault and battery, attempted murder, and burglary. Results of psychological testing were invalid. The evaluator felt that the veteran fell under the Attention Deficit Hyperactivity Disorder Residual Type, with a history of significant brain trauma, with a bipolar type disorder history. The veteran also had a personality disorder of a mixed type with antisocial and explosive traits. A copy of an April 1992 Social Security decision awarding the veteran disability benefits is also in the claims file. The administrative law judge rendering the decision noted that the veteran's current mental impairments would be held to have their onset as of September 1990, the date the veteran began his treatment with Dr. Rooks. Prior to that date, there was no objective evidence to document the presence of a severe mental impairment, within the meaning of the Social Security Act. In August 1992 the veteran testified at a personal hearing as to the symptoms he experienced. He said Dr. Rooks told him he did want to label him as schizophrenic, because if the veteran got into any trouble with the law, he could wind up institutionalized. He described visual and auditory hallucinations, the first of which occurred just after service in 1965. He reported that he was last employed in 1984 as a truck driver, an occupation he engaged in for the previous fifteen and a half years. He mentioned that the only time he had been hospitalized was during service. He indicated that soon after discharge from service, he was prescribed medication for his psychiatric disability by the VAMC, Phoenix. VA outpatient treatment records from l987 were obtained from the Loma Linda Hospital. They indicated that the veteran was seen in April 1987 complaining of back pain, headaches, and insomnia, and was evaluated for a psychosomatic illness. He said he had these problems for the last 15 years, but they had grown worse in the past 3 years. The diagnoses included anxiety and depression. The records contain no diagnosis of a psychosis. There is of record a report of contract with the veteran which appears to have been done by an individual associated with the Social Security Administration. The date of the contact is illegible. The interview was to elicit information from the veteran concerning past medical treatment. The veteran alleged his medications affected his memory. He indicated that the VA did not treat his mental problem. He was last seen there about l987. He stated that he did not realize he had a mental problem for many years. His wife was asked if she could shed any more light on his past treatment. When it was mentioned that old medical bills might be a source of this information, it was indicated that the veteran was on Medicare. Pursuant to a September 1993 Board remand, the veteran was afforded a VA examination in December 1993. The veteran reported that he was raised by his mother and step-father because his parents divorced when he was 6 years old. He denied any psychiatric history, but said his childhood was not good. He was not properly cared for and eventually lived in a children's home. It was noted that the veteran was eventually placed in the brig in the Marine Corps, hospitalized, and discharged as unsuitable for military service. The veteran said that before entering service, he was popular, outgoing, and friendly, but he is not the same as a result of his treatment in the Marine Corps, specifically during his time in the brig. He said that while he was in the brig, the warrant officer tried to convince him that the best thing for him to do would be to return to duty. The veteran said this officer was later transferred to a psychiatric unit. He claimed that he was given drugs, starved, and tortured while in the brig. He was eventually hospitalized but has never been hospitalized again. He complained of anger, hopelessness, insomnia, lack of energy, and auditory hallucinations of male voices telling him to hit someone, or kill someone else or himself, which he reports experiencing ever since his time in the brig. He said he did not tell the doctors in the military about these voices, because someone had told him he would be "kept" if he told about these voices. He thought it was his problem, that he could deal with it, and that it would be a sign of weakness to admit psychiatric difficulties. He was ashamed to admit his problems because he felt he was a boxing champion and admired as well. The examiner noted Dr. Rooks letters, described above. On mental status examination, when reviewing his problems at the brig, the veteran was very vague and could not recall anything concerning his request for a discharge from service on a conscientious objector basis. The diagnostic impressions included schizoaffective disorder, depressive type, and schizoid personality. The examiner noted that in reviewing the veteran's claims file, it was difficult to validate the veteran's history, as he has blocked out the fact that he was attempting to get out of the Marine Corps on a conscientious objector basis. The examiner felt the veteran had a long standing personality disorder, schizoid in type. Although he now showed symptoms of severe depression with some psychotic features, the examiner was of the opinion that these were not present during his time in the military. In December l993, a request was made to the VAMC Phoenix for records of treatment of the veteran alleged to have occurred in l964 or l965. The facility reported that their system of records did not contain a record retrievable by the veteran's name or social security number. Additional medical records were received dealing primarily with treatment for unrelated disabilities. A final letter from Dr. Rooks to the RO dated in February 1994 explained that he last saw the veteran in July 1993, and the veteran remained resistant to any type of work activity. The Board concludes that the additional evidence submitted is both new and material. The medical records show for the first time that the veteran exhibited symptoms of a psychosis after his discharge from service, in addition to symptoms of a personality disorder. This clearly is new evidence. Also when considered in conjunction with all the evidence of record, there is a reasonable possibility of an allowance. In this regard, we note that, in service, a psychologist opined that the veteran's reaction in service might be of psychotic proportion. Therefore, the claim is reopened and the entire evidence of record will be considered, without regard to finality, in determining whether entitlement to service connection for a psychiatric disorder has been established. However, the Board must first decide whether the veteran will be prejudiced in any way by its consideration of the reopened claim when the RO has not addressed that underlying issue. The factors to be considered include whether the claimant has been given adequate notice of the need to submit evidence or argument on the underlying claim, an opportunity to submit such evidence or argument, and an opportunity to address the issue at a hearing. Bernard v. Brown, 4 Vet.App. 384 (1993). In the case at hand, the Board concludes that the veteran will in no way be prejudiced by its consideration of the underlying claim. Both the veteran and his representative have submitted written argument on the underlying claim, and the veteran testified at a hearing regarding that issue. He has been aware of the need and had ample opportunity to submit evidence on his underlying claim of service connection for a psychiatric disorder. Since new and material evidence is necessarily well grounded, consideration has been given to whether the VA has complied with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107a). After reviewing the claims folder, the undersigned concludes that the record is complete for purposes of this appeal, and that additional development is not needed. During service, although a psychologist opined that the veteran's reaction "may well be of psychotic proportions," we note that the presence of a psychosis was not confirmed by treating psychiatrists. Rather, observation and examinations during a period of hospitalization resulted in a final diagnosis of a personality disorder. It was noted in the hospital report that a review of the psychological testing summary indicated no clear cut evidence of a psychosis. The first objective evidence of psychiatric manifestations postservice was in l987 when questionable anxiety and related stress were noted. The first evidence of a psychosis postservice was in l990 when he began his treatment with Dr. Rooks and was diagnosed with schizoaffective disorder. This is more than 20 years postservice. No medical evidence has been submitted by the veteran to the effect that any acquired psychiatric disability had its onset in service. Moreover, during the VA examination in December l993, the physician indicated that he had reviewed the veteran's entire claims folder. He stated as follows: "It appears to this examiner that this individual has a long standing personality disorder, schizoid in type and that now he does show symptoms of severe depression with some psychotic features, but that these were not present during his period of time in the military." In conclusion, the evidence simply does not support a finding that the symptoms in service represented the onset of a psychotic disability. ORDER Entitlement to service connection for a psychiatric disability (psychosis) is denied. I. S. SHERMAN Member, Board of Veterans' Appeals (Continued Next Page) 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.