Citation Nr: 0717280 Decision Date: 06/08/07 Archive Date: 06/18/07 DOCKET NO. 99-06 181A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Veteran represented by: Mark A. Lippman, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran served on active duty from April 5, 1977 to April 22, 1977. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Chicago, Illinois, VA Regional Office (RO). This case has previously come before the Board. Most recently, in November 2004, the Court vacated the Board's May 2002 decision which denied reopening the claim. In May 2005 and October 2005, the Board remanded the issue to the agency of original jurisdiction (AOJ) for additional development. The case has been returned to the Board for further appellate review. The appellant has been afforded personal hearings. Transcripts of the hearings have been associated with the claims file. FINDINGS OF FACT 1. In a February 1988 decision, the Board denied reopening the claim of entitlement to service connection for an acquired psychiatric disorder. That decision is final. 2. Since the February 1988 Board decision, additional evidence has been submitted that is probative and relevant. 3. A psychiatric disorder was not noted on the service entrance examination. 4. Clear and unmistakable evidence sufficient to rebut the presumption of soundness has not been submitted. 5. Schizophrenia is attributable to service. CONCLUSIONS OF LAW 1. The February 1988 Board decision, which denied reopening the claim for service connection for an acquired psychiatric disorder is final. Since that decision, new and material evidence has been submitted and the claim is reopened. 38 U.S.C.A. §§ 5108, 7104(b), 7108 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.156(a), 20.1100. 2. Schizophrenia was incurred in service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2005); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria & Analysis Initially, the Board notes that any defect in regard to VCAA is harmless as service connection for schizophrenia is herein granted. Any disagreement as to the effective date or evaluation assigned can be addressed after the AOJ implements the grant. I. New & Material Evidence Criteria When the Board has disallowed a claim, it may not thereafter be reopened unless new and material evidence is submitted. 38 U.S.C.A. §§ 5108, 7104. New and material evidence means evidence which was not previously submitted to agency decision makers which bears "directly and substantially" upon the specific matter under consideration. 38 C.F.R. § 3.156(a). Such evidence must be neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, "so significant that it must be considered in order to fairly decide the merits of the claim." The Board notes that the legal standard of what constitutes "new and material" evidence was recently amended. This amendment is inapplicable in the instant case as the amendment applies prospectively to claims filed on or after August 29, 2001. 38 C.F.R. § 3.156(a) (2006). Analysis The issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder was previously addressed and denied by the Board in February 1988. The appellant has applied to reopen his claim of entitlement to service connection for schizophrenia. At the time of the February 1988 Board decision, the record included the service medical records, statements from the appellant, a May 1979 Board decision denying the claim on the merits, and post service VA medical records. The evidence was reviewed and the application to reopen the claim for service connection for an acquired psychiatric disorder was denied. 38 U.S.C.A. § 7104. If new and material evidence is presented or secured with respect to a claim that has been disallowed, however, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. Since that determination, the appellant has applied to reopen his claim for entitlement to service connection for an acquired psychiatric disorder. The evidence submitted since the prior final denial in February 1988 is new and material. In a March 2002 letter, a VA examiner stated that he was unable to establish that the veteran had a preexisting history of schizophrenia at service entrance. The Board notes that, generally, evidence is presumed to be credible for purposes of determining whether new and material evidence has been presented to reopen the claim. Justus v. Principi, 3 Vet. App. 510 (1992). In addition, in Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Board finds the evidence is new and material and the application to reopen the claim is granted. II. Service Connection 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. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2006). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such. 38 U.S.C.A. §§ 1111, 1137 (West 2002 & Supp. 2005); 38 C.F.R. § 3.304(b) (2006). In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Generally, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). At service entrance on April 4, 1977, psychiatric examination was normal. A psychiatric disorder was not noted on the entrance examination report, and thus, the veteran is entitled to a presumption of soundness at service entrance. Because the veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304(b), the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service. The Board finds that there is not clear and unmistakable evidence rebutting the presumption of soundness at service entrance. The Board notes that there are two steps to rebut the presumption of soundness at entry. VAOPGCPREC 3-03 (July 16, 2003). First, there must be clear and unmistakable evidence that a psychiatric disorder preexisted service. Second, there must be clear and unmistakable evidence that a psychiatric disorder was not aggravated during service. If both prongs are not met, the presumption of soundness at entry is not rebutted. In this case, the Board finds that the evidence does not clearly and unmistakably establish that schizophrenia existed prior to service. As noted, psychiatric evaluation was normal at service entrance. On the accompanying medical history to the service entrance examination, he specifically denied having or having had frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. His neuropsychiatric status was assigned a profile of "1." While he was referred to the dispensary on April 8, 1977 by his company commander, the assessment was simply mild depression. The examiner specifically noted that he was in good contact with reality. In addition, while an April 11, 1977 record notes erratic behavior, no disabling mental illness was noted, and the examiner determined that there was no evidence of psychosis or any evidence of a disabling neurosis. The Board notes that an April 19, 1977 Medical Board report notes schizophrenia existed prior to service. However, the record reflects the initial finding of schizophrenia is in April 15, 1977, and associated with the veteran's complaints of a fear of 'all the orders.' The examiner opined that the veteran was experiencing decompensation precluding him from being in the managed environment. When Medical Board report is considered in conjunction with the normal findings at service entrance, and thereafter a finding of no psychosis, and the post-service VA opinion to the effect that a preexisting history of a psychiatric disorder was not established, it is not clearly and unmistakably established that schizophrenia preexisted service. Thus, the presumption of soundness at entry is not rebutted. Because the evidence establishes that schizophrenia did not exist prior to service, the, theory of aggravation is not relevant. Thus, the issue is whether the veteran's schizophrenia is attributable to service. Service medical records show that the initial manifestations of schizophrenia in service, that the veteran was diagnosed with schizophrenia at separation, and that he currently has schizophrenia. The Board is unable to disassociate the current schizophrenia from the initial in-service manifestations and diagnosis. Thus, the Board finds service connection for schizophrenia is warranted. Consequently, the benefits sought on appeal are granted. ORDER The application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for schizophrenia is granted. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs