BVA9500563 DOCKET NO. 91-46 376 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder classified as schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Gutstein, Counsel INTRODUCTION The veteran served on active duty from January 1969 to January 1971, and from September 2, 1971, to October 27, 1971. This matter came before the Board of Veterans' Appeals (Board) on an appeal from the July 1990 rating decision of the Department of Veterans Affairs (VA), St. Petersburg, Florida Regional Office (RO) which confirmed the prior denial of service connection for schizophrenia. The veteran appeared at a hearing at the RO in November 1990, which constituted a notice of disagreement. He was furnished a supplemental statement of the case which included the service connection issue in June 1991, and his representative's VA Form 1-646 of July 1991 constituted a substantive appeal. The veteran is represented in his appeal by The American Legion which has submitted written argument in his behalf. The record shows that the RO first denied service connection for a nervous condition in September 1973, and the veteran did not appeal that determination which is final on the basis of the evidence then of record. That determination was confirmed by rating decision of May 1985 which the veteran also did not appeal and which is also final on the basis of the evidence then of record. In a decision of September 1993, the Board held that the veteran had submitted new and material evidence to reopen his claim for service connection for an acquired psychiatric disorder classified as schizophrenia. The case was also remanded to the RO for the purpose of considering whether the veteran had been given adequate notice of need to present evidence and argument on the merits and adequate opportunity to appear at a hearing and to present evidence and arguments with respect to that question subject to the United States Court of Veterans Appeals (Court) decision of Bernard v. Brown, 4 Vet.App. 384 (1993). The veteran advised that he had no further medical evidence to submit. By rating decision of April 1994, the RO confirmed the prior denial of service connection for an acquired psychiatric disorder, classified as schizophrenia. The case is now before the Board following satisfaction of procedural due process. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had behavioral difficulty during the end of his first period of service with the Army. He advised that after he got out of the Army, he was treated for a mental disorder in Chattanooga. He said he enlisted in the Marine Corps and began to experience some of his previous symptoms for which he had been discharged. Thereafter, he alleged hospitalization at the VA Medical Center, Miami for a nervous condition within one year of his discharge from the Marine Corps. He argues that the symptoms of his schizophrenia were manifested during his periods of active duty. 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 evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the grant of service connection for an acquired psychiatric disorder classified as schizophrenia. FINDINGS OF FACT 1. There is no clinical record of psychotic symptoms in either period of service. 2. The veteran was discharged from the second period of service because of mental inaptitude and he was found to have no psychiatric disability on examination October 21, 1971. 3. A psychosis was not clinically manifested within one year following separation from the first period of service. 4. Schizophrenia is not related to either period of service or to any incident thereof. CONCLUSION OF LAW An acquired psychiatric disorder classified as schizophrenia was not incurred in or aggravated by either period of service nor may it be presumed to have been incurred in the first period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has concluded that the preponderance of the evidence is against the grant of service connection for an acquired psychiatric disorder classified as schizophrenia. This determination is based upon a review of the complete evidentiary record which includes the veteran's service medical records, post service private and VA medical reports, testimony offered by the veteran and other statements of the veteran and his representative in support of the claim. This case was previously denied by the RO in 1973 and 1985, but the veteran did not appeal those determinations which are final on the basis of the evidence then of record. Due to the fact that the September 1993 decision of the Board held that the veteran after the 1985 RO decision had submitted new and material evidence to reopen his claim, appellate consideration of this case to determine whether the veteran is entitled to service connection for schizophrenia is based upon a review of the complete evidentiary record. The record shows that the veteran had two periods of service. The first one, with the Army, was from 1969 to 1971, and the service medical records for that period of service contain no clinical reference to any psychiatric abnormality. The second period of service, in the Marine Corps was less than 90 days and was from September 2, 1971, to October 27, 1971. Records during this period show that the veteran was incapable of successfully performing the recruit training because he was handicapped by limited education and reading skills. Based on his mental inaptitude, it was thought best to separate the veteran. An October 1971 report from the neuropsychiatric section of the Marine Corps shows that the veteran suffered from no physical or mental disability. On his report of medical history of October 1971 the veteran did not relate any nervous problems. Post service records show that the veteran was seen for medical treatment at a VA facility on October 24, 1972. He had come in because of his "nerves." He could not think and he had problems sleeping at night. He reportedly socialized poorly and he had tics. It was found that hospitalization was not required and he was referred for outpatient care. A diagnosis was made of probable schizophrenia, chronic. He was seen the same day at Jackson Memorial Hospital with vague purpose, feeling he was inferior because of his lack of education, questioning his ability to relate to others. He advised that he avoided prolonged contact because of fears that others would find out about his "hang-ups." He described anxiety, bad thoughts, and restless feeling inside for the past two years with increase in symptoms in the past few months. He was vague and circumstantial. Objective examination showed that his judgment was intact, his affect was blunted but appropriate, his intellectual functioning was intact and he was oriented times three. He denied delusions or hallucinations. The impression was schizoid personality with depression. The veteran was hospitalized at the VA Hospital, Miami, Florida, from June 1973 to July 1973. He was admitted complaining of neck and back trouble with "nerves." He reported pressure on his neck, shoulder and back for one year that was getting worse. He said he had trouble sleeping, had thoughts of suicide, felt like a misfit and worried about whether he was a homosexual. His mental status revealed him to be appropriately dressed, alert, slightly depressed, extremely open with no memory problems or delusions. His judgment was good and he was not concrete in his thoughts. He was placed on Librium and Tofranil and attended group therapy. He was diagnosed as having neurotic depression with anxiety features and an inadequate personality. Another contemporary VA treatment report diagnosed adjustment reaction. He was hospitalized for one day in October 1973 by the VA complaining of vague pain on the back and neck, being nervous and being unable to keep a job as a construction worker. The diagnoses were rule out borderline syndrome and rule out conversion reaction. Schizophrenia was diagnosed during various periods of private hospitalization beginning in the early 1980's and continuing thereafter. In a statement from the veteran's mother, apparently submitted at the time of his personal hearing in November 1990, she advised that the veteran's condition was entirely different when he came out of service as he was in a deep depression and a nervous wreck. She related that he could not eat, sleep or have a sensible conversation and he wanted nothing to do with anyone in the family. She related that he ultimately went into a mental hospital where paranoid schizophrenia was diagnosed. The Board concludes that her statement has weight as to occurrences and her observations but it has no probative value regarding diagnosis. Under the applicable legal criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran serves ninety (90) days or more during a period of war and schizophrenia 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 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). As related above, there is no clinical documentation of an acquired psychiatric disorder during either of the veteran's periods of active duty. Although mental inaptitude was found as a reason for his inability to successfully perform recruit training for the Marine Corps, he was given a psychiatric evaluation prior to his separation from that period of duty, and this showed no psychiatric disability. When he went to the VA clinic in October 1972, the diagnosis was probable schizophrenia, chronic. Schizophrenia was only suspected, but not confirmed since the word "probable" was used. When the veteran was seen later that day at Jackson Memorial Hospital, he was found to be oriented times three with no evidence of delusions or hallucinations, with his judgment intact, affect blunted but appropriate and his intellectual functioning intact. It was concluded that he had schizoid personality with depression. Further VA medical studies from June to July 1973 showed a diagnosis of neurotic depression with anxiety features and an inadequate personality and that an October 1973 report showed rule out borderline syndrome and rule out conversion reaction. There was no confirmation of the presence of a psychosis until several years after service. This case was referred to a VA psychiatrist who reviewed the complete file in March 1994 and concluded "...that there is no evidence of schizophrenic condition having been present in service or within year following service." The Board finds this opinion to have great probative value as the psychiatrist reviewed the entire file. The veteran has testified currently that he first had manifestations of his schizophrenia in service, however, his medical records in service especially his report of medical history in October 1971 do not support his testimony and the Board finds it not credible. Thus since the medical record does not show a confirmation of schizophrenia clinically established until the 1980's, the Board must conclude that the preponderance of the evidence is against the grant of service connection for schizophrenia. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). ORDER Entitlement to service connection for an acquired psychiatric disorder classified as schizophrenia is denied. E. M. KRENZER Member, Board of Veterans' Appeals (CONTINUED ON 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.