Citation Nr: 0007911 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 94-24 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Whether the veteran has submitted new and material evidence to reopen a claim for entitlement to service connection for schizophrenia. 2. Entitlement to an increased evaluation for service- connected post-traumatic stress disorder (PTSD), currently rated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Evelyn Johnson-Williams, Attorney ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The veteran served on active duty from March 1968 to October 1969. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a November 1994 rating determination by the Houston, Texas Regional Office (RO), that new and material evidence had not been submitted to reopen a claim of service connection for schizophrenia. The RO's determination was affirmed on appeal to the Board in October 1996. In a December 1998 Memorandum Decision, the United States Court of Veteran's Appeals - now the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the claim to the Board for compliance with the Court's instructions, to include reconsideration of the reopening question in light of Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998). In Hodge, the U.S. Court of Appeals for the Federal Circuit, considered the issue of whether the Colvin test was a fair rendition of the definition of "material evidence" set forth in the regulation. The Federal Circuit Court concluded that the Court erred in adopting the Colvin test in that it failed to defer to the reasonable definition of a statutory term adopted by a regulation promulgated by the Secretary. In summary, the Circuit Court disapproved of the Colvin test as applied to veterans' claims, vacated the Court's decision upholding the Board's refusal to reopen Hodge's claim and remanded the case for reconsideration by the Court in light of the proper regulatory definition of "material evidence." Therefore, in the present case, the Board will review the veteran's claim, that new and material evidence has been submitted to reopen the claim concerning service connection for schizophrenia on a direct basis, solely in accordance with the criteria found in 38 C.F.R. § 3.156. The Board notes, by history, that in March 1994, the RO denied an increased evaluation for the veteran's service- connected PTSD and entitlement to TDIU. The veteran initiated and perfected a timely appeal with regard to the issue of an increased rating for PTSD. In his substantive appeal filed in June 1994, he also expressed disagreement with the RO's denial of his claim for TDIU. However, a statement of the case was not issued on the TDIU issue. Thereafter, in a VA Form 21-4138 dated November 2, 1994, the veteran specifically withdrew his claim of entitlement to an increased evaluation for PTSD. In the subsequent rating decision of November 1994, the RO found that the veteran was incompetent for VA purposes, effective November 7, 1994. It had been proposed to rate the veteran incompetent in an earlier, June 1994 rating decision. In light of the veteran's withdrawal of the issue relating to evaluation of his service-connected PTSD and because an appeal had not been perfected as to the TDIU issue, the Board did not address those issues in the decision of October 1996. However, in a June 1999 supplemental Memorandum Decision the Court ordered the Board to consider whether the November 1994 RO determination that the appellant was incompetent to handle VA funds raises any question or doubt concerning the validity of his November 2, 1994, withdrawal of his appeal to the RO decisions denying his claims for an increased rating for PTSD and TDIU. The Board has considered whether the veteran was mentally competent in November 1994 to withdraw the claims of entitlement to an increased rating for PTSD and entitlement to TDIU. Based on a review of the medical evidence of record at that time, including a May 1994 VA hospitalization report which declared the veteran was unemployable and not competent to handle his funds, and the fact that the RO proposed a rating of incompetency in June 1994 and effectuated that rating in a rating decision just a few days after the veteran's putative withdrawal, the Board finds that the veteran was not competent to make the decision to withdraw his appeal. See generally 38 C.F.R. §§ 20.204, 20.301 (1999). While there is no express provision dealing with incompetency in the context of the withdrawal of an appeal, the Board believes the same considerations contemplated by § 20.301 with regard to the filing of an appeal by the fiduciary of an incompetent claimant would apply in the circumstance of an attempted withdrawal by an incompetent claimant under § 20.204. Thus, the Board concludes that the veteran's attempted November 1994 withdrawal was not effective and that the issues of entitlement to an increased evaluation for PTSD and entitlement to TDIU remain in appellate status. These issues will be the subject of a REMAND following the Board's decision below. With regard to the issue of entitlement to TDIU, the Board notes that an appeal had not been perfected at the time of the veteran's November 1994 putative withdrawal. However, he expressed timely disagreement with the March 1994 denial of TDIU in his substantive appeal filed in June 1994, and no statement of the case has yet been issued by the RO with regard to the TDIU issue. In light of the later presentation of argument on this issue, the Board finds that a timely appeal was perfected as to this issue. 38 U.S.C.A. § 7105 (West 1991); see Manlincon v. West, 12 Vet. App. 238 (1999); Archbold v. Brown, 9 Vet. App. 124 (1996). FINDINGS OF FACT 1. A claim for service connection for schizophrenia was denied by the RO in November 1976 and by the Board in August 1979. 2. Evidence received since the August 1979 Board decision is not cumulative and is so significant in connection with the evidence previously assembled that it must be considered in order to fairly decide the merits of the claim. 3. There is plausible evidence of a psychiatric disorder in service and a nexus between the veteran's military service and current psychiatric disorder. CONCLUSIONS OF LAW 1. The August 1979 Board decision is final. 38 U.S.C.A. §§ 7102(a), 7103(a), 7104(a) (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100(a) (1999). 2. As new and material evidence has been submitted, the claim for service connection for schizophrenia is reopened. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); 38 C.F.R. § 3.156 (1999). 3. The claim of entitlement to service connection for schizophrenia is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for schizophrenia was originally denied by the RO in November 1976 and by the Board in August 1979. The August 1979 Board decision is final. See 38 U.S.C.A. § 7103(a) (West 1991 & Supp. 1999). A final decision cannot be reopened and reconsidered by the VA unless new and material evidence is presented in connection with a request that the previously denied claim be reopened. 38 U.S.C.A. § 5108 (West 1991 & Supp. 1999); Suttman v. Brown, 5 Vet.App. 127, 135 (1993). When it is determined that new and material evidence has been submitted, the VA must reopen a previously denied claim. 38 U.S.C.A. § 7104(b) (West 1991 & Supp. 1999). The Court has held that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet.App. 273 (1996). In the recent case of Winters v. West, 12 Vet. App. 203 (1999), the Court, citing Elkins v. West, 12 Vet. App. 209 (1999) held that the two-step process set out in Manio v. Derwinski, 1 Vet. App. 140, 145 (1991), for reopening claims became a three-step process under the Federal Circuit's holding in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998): the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C. § 5107(b) has been fulfilled. For evidence to be deemed "new," it must not be cumulative or redundant of evidence already on file; to be "material," it must be relevant to, and probative of, the issue at hand. 38 C.F.R. § 3.156; see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (eliminating the Court-imposed requirement that the evidence in question, when considered along with all of the evidence of record, both new and old, be of sufficient probative value to change the outcome of the case). Section 3.156 only requires that the evidence in question, by itself, or when considered in conjunction with the evidence already of record, be of sufficient significance that it must be considered in order to fairly decide the merits of the claim. Thus, this is the standard that must be employed by the Board. See 38 U.S.C.A. § 7104(c). Moreover, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet.App. 510 (1992). Evidence before the Board at the time of its decision in August 1979 included the veteran's service medical records and post service medical evidence from 1974 to 1979. Service medical records show that in 1969, the veteran complained of multiple personal problems and anxiety. On evaluation there was no evidence of psychosis or neurosis. In September 1969, one month prior to separation, the veteran was evaluated for anxiety reaction and given Thorazine. At separation in October 1969, the examination report was negative for complaints or findings of symptoms indicative of a chronic acquired psychiatric disorder. The post service medical evidence shows that the veteran was initially evaluated in December 1974 for extremely defensive and manipulative behavior, with scattered thinking. VA outpatient treatment records from January 1976 to April 1976 show the veteran was hospitalized in February 1976, for symptoms consistent with schizophrenia and paranoid thought disorder. However, the final diagnosis at discharge was history of drug abuse and explosive personality disorder with paranoid features. On VA examination in April 1976 chronic schizophrenia, paranoid type was diagnosed. In an addendum to that report the VA examiner concluded that the schizophrenia, diagnosed on VA examination in April 1976, was the same condition for which the veteran was treated in the service. Also of record is an October 1976 VA examination report by a panel of psychiatrists who concluded that the veteran's symptoms in service were not diagnostic of any disease and noted that the final diagnosis after hospitalization was not schizophrenia but rather an explosive personality disorder. The panel stated that the April 1976 VA diagnosis of schizophrenia was a preliminary opinion which was later changed after careful observation of the veteran. Additional evidence of record includes a May 1979 independent medical expert (IME) opinion which concluded that the current diagnoses were personality disorder mixed type, with explosive, paranoid and antisocial features, and episodic alcohol and multiple drug abuse. In August 1979, the Board found that in view of the IME findings, there was no acquired psychiatric disorder which could be related to service. Since the 1979 Board decision the RO has received medical evidence in the form of numerous lay statements from the veteran, as well as VA hospitalization and examination reports. Of particular significance, is a 1979 hospitalization report from the Harris County Psychiatric Hospital, which shows a diagnosis of schizophrenia, in remission. In addition, records from the Texas Department of Corrections show varying diagnoses including adjustment reaction of adult life, anxiety neurosis, paranoid schizophrenia in partial remission, antisocial personality, and inadequate personality and severe character disorder, mixed type. The veteran underwent VA examination in July 1980 which indicated possible thought disorder with emotional problems. On subsequent VA examination in October 1983, the diagnoses included PTSD, history of alcohol abuse and mixed personality disorder with paranoid features. In December 1983, a board of three psychiatrists concluded that the absence of psychiatric symptomatology until 1974, a number of years after the veteran's period of service, mitigates against service connection for schizophrenia but did not preclude service connection for PTSD. Service connection was subsequently granted for PTSD. The PTSD diagnosis was confirmed in February 1984 and again in August 1985 during VA hospitalizations. Schizophrenia and paranoid personality were reported while the veteran was hospitalized at a VA facility in November 1985. Subsequent diagnoses of schizophrenia were made in August 1992, May 1993 and May 1994. Additional evidence submitted in support of the claim includes a lay statement from a fellow serviceman relating his observations of the veteran's mental condition during active duty. VA outpatient treatment records dated from June 1996 to March 1999 show continued psychiatric evaluation and treatment of the veteran for schizophrenia. During a July 1999 VA examination, in connection with a claim for increase for PTSD, the examiner referred to the veteran's April 1976 diagnosis of schizophrenia, noting that service medical records did not reveal a diagnosis of a psychotic illness and that the veteran had not reported psychiatric treatment between the time he was discharged from service and 1976. The veteran reported that currently he is followed in the Day Treatment Center. He reported that he hears voices most recently two weeks prior to the examination, telling him to "kill" and that he has heard the cries of women and children begging not to be killed. He is depressed and fearful of crowds. He also thinks people are going to hurt him and does not feel normal because he cannot work and is depressed. The veteran reported that he was heard voices while he was in Vietnam and would stay up all night throwing grenades. At that time he was examined by three doctors and given Librium and Thorazine. The veteran's first psychiatric hospitalization was in 1976 and his most recent psychiatric hospitalization was June 1996 with a primary diagnosis of schizophrenia. The veteran admitted a history of substance abuse and his last drug screen was positive for cocaine in June 1999. The veteran reported that he is depressed most of the time but with medication sleeps reasonably well. He stated that he is interested in helping people but feels bad about himself. He reported excess energy and weight loss. He had some abnormal hand movements and his concentration was up and down. He reported suicidal ideation as recently as two days prior to the interview but feels better when he is at the VA. He reported frequent and recurrent dreams and thoughts about his Vietnam experience. He reported multiple symptoms of avoidance including talking about his Vietnam experiences. He avoids war movies and is vague about what happened to him. He was noted to have a blunted, flat affect and multiple symptoms of increased arousal, including problems with anger control, poor concentration, paranoid ideation and exaggerated startle. During the examination the veteran was neatly groomed and cooperative. His speech was slightly dysarthric but at normal rate and rhythm. His mood was bland and his affect blunted, but appropriate to expressed thoughts. There was no lability of affect noted and his thought process was coherent. He reported auditory hallucinations as recently as two weeks prior to examination. At the time of the interview he was without any specific ideas, intentions or plans of harming himself or others. The veteran was awake, alert and oriented. He scored 27/30 on the Fullstein Minimental Status Exam and could repeat three words immediately but only after five minutes. He was able to perform serial three substractions correctly and was concrete in interpretation of proverbs. His fund of information was impaired. His insight, judgment and impulse control were marginally intact. The pertinent diagnoses were chronic schizophrenia, paranoid type, in partial remission with medications, substance abuse and PTSD. The Board finds that the evidence submitted or associated with the record since the August 1979 Board decision, in particular the evidence which reflects a diagnosis of schizophrenia, is new, in the sense that it was not of record when the Board denied the claim. Also, in view of the less stringent standard for materiality set forth in Hodge, it is also material because it addresses one of the fundamental requirements for service connection-namely, evidence of current disability (see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)), which was one of the reasons the Board denied the claim. In view of the foregoing, the evidence cited above permits the claim to be reopened. However, in Elkins v. West, 12 Vet. App. 209 (1999), the Court held that once a claim for service connection has been reopened upon the presentation of new and material evidence, the VA must determine whether, based upon all of the evidence of record, the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). Only after a determination that the claim is well grounded may the VA proceed to evaluate the merits of the claim, provided that the VA's duty to assist the veteran with the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999) has been fulfilled. See Winters v. West, 12 Vet. App 203 (1999); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In order for a claim of service connection to be well grounded, there must be competent evidence of a current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in service disease or injury and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases, including psychoses, manifesting themselves within certain prescribe periods are related to service. Caluza v. Brown, 7 Vet.App. 498 (1995). As to the first element, current disability, the post-1979 medical evidence of record, including the recent July 1999 VA examination report, consistently reports a diagnosis of schizophrenia. The second and third elements, service incurrence and a nexus between service and current disability, are satisfied by the 1976 VA examination report which posited a connection between symptoms in service and current disability. Consequently the claim is well grounded. When the Board addresses in its decision a question that has not been addressed by the RO, such as well groundedness in this case, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that because the veteran's claim has been found to be well grounded, and will be remanded for further development, the veteran will not be prejudiced by this decision. ORDER Evidence submitted since the August 1979 Board decision constitutes new and material evidence sufficient to reopen the veteran's claim for service connection for schizophrenia. The veteran's claim of entitlement to service connection for schizophrenia, is well grounded. REMAND In addition to the Board's decision above, the veteran's claims for an increased rating for PTSD and for a TDIU are well grounded in light of the assertions advanced regarding those claims. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Because the veteran's claims are well grounded, the Board notes that the VA has a duty to assist the veteran in the development of his claims. 38 U.S.C.A. § 5107(a). In order to properly fulfill this duty, the Board finds it necessary to remand this case for further development. Although there was no diagnosis of a chronic psychiatric disorder in service, service medical records show the veteran was evaluated in September 1969, 1 month before his discharge, complaining of anxiety reaction and was given Thorazine. Also, there is medical evidence that psychological symptoms in 1974 were suggestive of schizophrenia. Subsequent psychological test results on VA examination in April 1976 were felt to be consistent with schizophrenia, which the VA examiner concluded was the same condition for which the veteran was treated in the service. The evidence of record also includes the report of an IME opinion dated in May 1979. The IME reviewed all of the evidence then of record and concluded that the veteran did not have an acquired psychiatric disorder, but rather had personality disorder mixed type, with explosive paranoid and antisocial features, and episodic alcohol and multiple drug abuse. The IME specifically concluded that there was no firm evidence for a diagnosis of schizophrenia. Additional post-service treatment reports of record since the 1979 IME opinion, including examination reports as well as hospital records reflect that the veteran was diagnosed with paranoid schizophrenia. The Board observes that a number of other psychiatric diagnoses have also been reported over the years, including paranoid thought disorder, PTSD, mixed personality disorder with paranoid features and paranoid personality. The most recent VA examination report in July 1999 shows a diagnosis of schizophrenia in partial remission. The Board believes that the medical evidence of record requires further development. There appears to be a conflicting diagnostic picture in light of the various psychiatric diagnoses of record, including schizophrenia. The medical evidence is further complicated by the 1979 IME opinion which concluded that the veteran had a personality disorder rather than schizophrenia. Therefore, the Board will request the RO to obtain a medical opinion addressing the etiology of any psychiatric disorder(s) found present and whether there is a relationship between any psychiatric disorder and an incident or event of the veteran's military service. A current assessment of the veteran's PTSD is also needed in order to evaluate the severity of the service- connected disorder. This case also raises the issue of a grant of benefits for aggravation of a nonservice-connected disability by a service-connected disability. The Court has held, in Allen v. Brown, 7 Vet.App. 439 (1993), that a veteran is entitled to service connection for any increment in the severity of a nonservice-connected disability attributable to a service- connected disability. If a question of entitlement under Allen is presented, a detailed VA examination to identify and define any increment of disability due to the service- connected PTSD must be performed. Regarding the veteran's claim for an increased evaluation for PTSD, the Court has stated that where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet.App. 308 (1990). Here, either the amended or previous rating criteria may be the version most favorable to the veteran. Therefore, the veteran should be afforded the opportunity to have the case reviewed under the most favorable criteria. The Court has further stated that when the Board addresses in its decision a question that was not addressed by the RO, the Board must consider the question of adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument. If not, it must be considered whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Additionally, if the Board determines that the claimant has been prejudiced by a deficiency in the statement of the case, the Board should remand the case to the RO pursuant to 38 C.F.R. § 19.9 (1999), specifying the action to be taken. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this case, the most favorable rating criteria would have to be applied. The Board notes that a VA rating examination is necessary to aid the RO in its determination of the most favorable rating criteria. The last VA examination of record was conducted in August 1992 when the previous rating criteria were in effect. In light of the revised rating criteria for rating psychiatric disorders, the Board finds that this case must be remanded to comply with the directives set forth in Bernard and Karnas. Under the circumstances of this case, additional development is necessary in order to fulfill VA's duty to assist. Finally, the issue of entitlement to TDIU is inextricably intertwined with the issue of entitlement to an increased rating for PTSD. The Board finds that an opinion as to whether the veteran's service-connected disability impairs his ability to perform substantially gainful employment should be included in the examination report. Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should obtain copies of all records of psychiatric treatment of the veteran (whether VA or non-VA), since July 1999, which are not currently of record. All such evidence should be associated with the claims file. 2. The veteran should be referred for a VA psychiatric examination by a panel of psychiatrists who have not previously examined, evaluated or treated the veteran. The entire three-volume claims folder and a copy of this remand must be provided to the psychiatrists in connection with this opinion request. All indicated tests and studies should be conducted and all findings should be reported in detail. On the basis of both current examination findings and a thorough review of all records in the claims files, the examiners should express an opinion regarding the overall degree of impairment resulting from the veteran's service-connected PTSD and the effect of the PTSD on his ability to work. The examiner should also assign a Global Assessment of Functioning Scale score, representing impairment due to PTSD, and include an explanation of that score, as it pertains to social and industrial impairment due to PTSD. The examiner should report findings due to PTSD in terms consistent with both the previous and new rating criteria. If the veteran is found to have schizophrenia, the symptoms and other factors which support the diagnosis should be specifically itemized, and an opinion should be expressed as to whether it may be attributed to complaints or manifestations noted in service. The psychiatrists should reconcile, to the extent possible, any discrepancies that may exist between current and past diagnoses. The psychiatrists should also provide a score on the Global Assessment of Functioning Scale relative to impairment due solely to schizophrenia, if diagnosed, and discuss the import of that score relative to the veteran's social and industrial adaptability. 3. Following completion of the above, the RO must readjudicate the claim of entitlement to service connection for schizophrenia on a de novo basis. A determination as to whether service connection for aggravation of schizophrenia within the meaning of Allen, should also be made. With respect to the issue of PTSD, the RO should review the record taking into account both the former and current rating criteria applicable to PTSD. The issue of entitlement to TDIU due to service- connected disability should then also be readjudicated. Full consideration should be given to the provisions of 38 C.F.R. §§ 3.340, 3.341 and 4.16 as they apply to the veteran's circumstances. This review should include consideration of all of the evidence of record, including any evidence submitted by the veteran and/or his representative and any additional evidence obtained by the RO pursuant to this remand. If any benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations, including the revised and prior criteria applicable to rating PTSD and the relevant legal criteria pertinent to a determination of TDIU. The supplemental statement of the case should contain a discussion of the reasoning employed with regard to all determinations. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. D. C. Spickler Member, Board of Veterans' Appeals