diabetes Bva Cue Granted - Sc Schizophrenia Back To 1971

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http://www.va.gov/vetapp13/Files2/1312585.txt

Citation Nr: 1312585

Decision Date: 04/16/13 Archive Date: 05/02/13

DOCKET NO. 08-33 944 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in St. Louis, Missouri

THE ISSUE

Whether the RO's rating decision dated in March 1971 should be revised on the grounds of clear and unmistakable error (CUE).

REPRESENTATION

Appellant represented by: Kenneth M. Carpenter, Attorney

ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel

INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1965 to November 1968.

This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 2002 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which found that there was no CUE in a March 1971 rating decision that denied service connection for schizophrenia.

By decision dated in August 2010, the Board likewise denied the appellant's claim, finding that there was no CUE in the March 1971 rating decision. The appellant appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision regarding the March 1971 rating decision was vacated pursuant to a July 2012 memorandum decision. The Court remanded the matter for readjudication consistent with its decision.

FINDINGS OF FACT

1. In a March 1971 rating decision, the RO denied service connection for undifferentiated schizophrenia (previously diagnosed as nervous condition) as having pre-existed service and not being aggravated in service. The Veteran did not appeal this decision and it became final.

2. In a July 2012 Memorandum decision, the Court found that the presumption of soundness at entry into active duty had not been rebutted by clear and unmistakable evidence as to a psychosis by the medical evidence of record at the time of the March 1971 rating decision; the Board concludes that there is no basis to conclude that there was no increase in disability due to a nervous condition in service or that any inservice increase was due to natural progress. Therefore, the rating decision did not properly apply governing law; such failure was outcome determinative.

3. Schizophrenia was not manifested during service.

4. Schizophrenia was first manifested to a degree of 10 percent within one year of service separation.

CONCLUSIONS OF LAW

1. The March 1971 rating decision which denied the Veteran service connection for schizophrenia involved clear and unmistakable error and requires revision. 38 U.S.C.A. §§ 5109A , 7105 (West 2002); 38 C.F.R. § 3.105 (2012).

2. Schizophrenia is presumed to have been incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a), and as interpreted by the Court have been held to be inapplicable to CUE claims. Sorakubo v. Principi, 16 Vet. App. 120, 122 (2002), citing Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the duties specified in the VCAA are not applicable to allegations of CUE in a prior Board decision).

Consideration of CUE in the March 1971 Rating Decision

Review of the Veteran's service treatment records (STRs) shows that on pre-enlistment medical examination in November 1964, the Veteran reported having or having had no history of trouble sleeping, frequent and terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. The Veteran did report having had difficulty with school, stating that he could not concentrate enough to pass. Psychiatric clinical evaluation was normal. The Veteran was examined in connection with his entry into active duty in March 1965. At that time a defect of "nervous trouble" was noted as a defect. The Veteran's physical profile was unchanged and the Veteran was found to be physically qualified for transfer to active duty. STRs show no complaint or manifestation of a psychiatric disorder until a reference in November 1967 when the Veteran complained of being extremely nervous. He stated that he had been experiencing personal problems and felt incompetent of standing duty. He was given reassurance and referred to a physician at which time he was found to have moderate anxiety reaction secondary to "girlfriend problems." He was prescribed Librium. There were no further references to any psychiatric disability in the STRs. On examination for separation from service in November 1968, psychiatric clinical evaluation was normal.

VA outpatient treatment records show that in March 1969, the Veteran was seen for complaints of being very tense and nervous. The diagnosis was anxiety and the Veteran was again prescribed Librium.

The Veteran was hospitalized at a VA facility (VAH) in May 1969. At that time, it was noted that the Veteran's history was given by the Veteran's father who was initially inconsistent and poor, but later presented information directly. It was reported that the Veteran's mother was currently being treated for diabetes and psychiatric problems. The Veteran's history included having played by himself as a child, done poorly in school with severe difficulty in high school and quitting to join the Marines at age 17. He had been unable to remain employed since his discharge from service. He had left his last employment with a chemical company either because of the acid fumes or because he had wanted to see a woman whom he loved. It was reported that the Veteran may have been treated during service for emotional illness. He had dated a woman several years younger and he became frustrated and angry when women with whom he had a relationship did not cooperate with him. It was reported that approximately one year earlier he had thrown a woman through a door, fracturing her ribs. Several weeks before this admission, he had become angry at a former boyfriend of a woman he was dating and became preoccupied with getting a gun to kill him, but later decided against this. It was reported that he had seen a psychiatrist while he was having difficulties in high school. At that time he was reported by his parents to have been diagnosed with schizophrenia. His current complaints were of nerves, an inability to control his temper, and of memory loss. Another incident with a girlfriend had precipitated this admission.

On mental status examination, the Veteran appeared anxious and depressed with suicidal ideation. His speech had little spontaneity and blocking occurred, particularly in relation to recent events. The Veteran was ambivalent with looseness of associations. The Veteran was preoccupied with the difficulties he had had with women and with his tour of duty in the military. He had fair concentration, symbolized inappropriately and loosely, with poor judgment and insight. The initial impression on admission was anxiety, with an adult situational reaction. During the course of hospitalization, the Veteran was noted to be blocking at times, but was also very cooperative. He was also impulsive at times and threatened to leave. The Veteran eventually left against medical advice one week following his admission. The Veteran's father was notified and was urged to try to have the Veteran return to the hospital due to the Veteran's suicidal and homicidal impulses. Despite assurances, the father was unable to have the Veteran return. The diagnosis was undifferentiated schizophrenia.

In December 1970, the Veteran's claims folder was sent for review by a board of two specialists in psychiatry to furnish a definitive diagnosis as to the neurosis or psychosis that currently existed, the etiology thereof, and any relationship with service, if any. It was noted that a May 1969 rating decision, made for the purpose of VA treatment, had denied service connection for a nervous condition on the basis that at the time of the Veteran's entry into service there was a notation of nervous trouble and that aggravation during service was not shown. The May 1969 diagnosis of acute undifferentiated schizophrenia was also reported. The rating board requested an opinion regarding whether there was a relationship between the schizophrenia and the previously denied nervous condition, as, if there was no relationship, service connection on a presumptive basis would be warranted. Therefore, it was requested that the medical evidence be reviewed and questions answered regarding: (1) whether the current diagnosis of a psychosis corrected an old and previous diagnosis of nervous condition; (2) whether the current diagnosis of a psychosis represented a mere change in nomenclature; (3) whether the current diagnosis of a psychosis reflected a new phase or later development of a condition formerly diagnosed differently as a nervous condition; or (4) whether the current diagnosis of a psychosis represented a new clinical entity not related to the earlier diagnostic entity described as a nervous condition.

In a January 1971 memorandum, the Chief of the VAH psychiatry service responded with a subject headed "Clarification of diagnosis of nervous or mental condition." The physician stated that, after review of all attached records, including military hospitalization and hospitalization at the VAH, the diagnosis of undifferentiated psychosis established at the VAH in all probability represented an extension of the same process earlier noted in the military record as nervousness. This would be compatible with item 3, that the current diagnosis of psychosis reflected a new phase or later development of a condition formerly diagnosed differently as a nervous condition.

In the March 1971 rating decision, the RO found that the January 1971 memorandum opinion was that the diagnosis of the undifferentiated psychosis represented in all probability an extension of the same process earlier noted in the military records as nervousness. It was noted that the Veteran's nervous condition had previously been determined for treatment purposes as having pre-existed service and was not incurred or aggravated in service. The medical opinion was interpreted as demonstrating that the subsequently diagnosed psychosis represented an extension of the same condition with was previously denied service connection.

In May 1971, the Veteran was notified of the March 1971 rating decision. He did not submit a timely appeal and the rating decision became final. Accordingly, the decision may now be collaterally attacked and ultimately revised only on the basis of CUE.

An unappealed rating decision is final, and may not be revised based on the evidence of record at the time of decision unless it is shown that the decision involved CUE. 38 U.S.C.A. § 7105. Where CUE is found in a prior RO decision, the prior decision will be reversed or revised. For the purpose of authorizing benefits, reversal or revision of the prior decision on the grounds of CUE has the same effect as if the correct decision had been made on the date of the prior decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).

CUE is a very specific and rare kind of error; it is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001); Damrel v. Brown, 6 Vet. App. 242 (1994); Fugo v. Brown, 6 Vet. App. 40 (1993).

In the March 1971 rating decision the RO denied service connection for schizophrenia on the bases that the disability (a) clearly and unmistakably preexisted the Veteran's service, and (b) was not aggravated thereby.

As noted in the July 2012 Court decision, VA law and regulations that were in effect at the time of the March 1971 rating decision are essentially unchanged from those in existence now, except for renumbering. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 310 (now renumbered as 38 U.S.C.A. § 1110); 38 C.F.R. § 3.303(a). 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. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as a psychosis, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C.A. §§ 301, 312, 313 (now renumbered as 38 U.S.C.A. §§ 1101, 1112, 1113, respectively); 38 C.F.R. §§ 3.307, 3.309.

Under 38 U.S.C.A. § 311 (now renumbered as 38 U.S.C.A. § 1111) a veteran was considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such.

The United States Court of Appeals for Federal Circuit(Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), that the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service.

The Court, has held, in essence, that the Federal Circuit's interpretation of 38 U.S.C.A. § 1111 had retroactive effect, and that the failure to consider both prongs of the § 1111 requirement for rebutting the presumption of soundness could serve as the basis for CUE. See Rivers v. Roadway Express, 511 U.S. 298, 311, 312 (1994).

Thus, the law at the time of the March 1971 rating decision essentially provided that if there was clear and unmistakable evidence that a disability preexisted service, then VA was required to consider whether there was either clear and unmistakable evidence that the condition did not increase in severity in service, or clear and unmistakable evidence that any increase was due to the natural progress of the disease. Once a preexisting condition was shown to have increased in severity during service, the aggravation prong of the presumption of soundness could only be rebutted by a showing "by clear and unmistakable evidence" that any increase was "due to the natural progress of the disease." See Joyce v Nicholson, 19 Vet. App. 36 (2005).

In the March 1971 rating decision, the RO did not specifically cite the presumptions of soundness or aggravation. However, it essentially addressed the first prong of the presumption of soundness by finding that the Veteran's psychosis clearly and unmistakably preexisted service as evidenced by (1) the notation at the Veteran's entry into service of nervousness; (2) the VAH report wherein the Veteran's father reported that the Veteran had been diagnosed with schizophrenia prior to service; and; (3) the medical opinion of the Chief of the VAH, that, in all probability the schizophrenia represented an extension of the same process earlier noted in the military record as nervousness and reflected a new phase or later development of the condition formerly diagnosed differently as a nervous condition.

In the July 2012 Court memorandum decision, it was found that the presumption of soundness at entry into active duty had not been rebutted by clear and unmistakable evidence as to a psychosis by the medical evidence of record. In this regard, the Court found that the notation of "nervous trouble" is not a finding of a psychotic condition being noted at entry into service so that the presumption of soundness under 38 U.S.C.A. § 1111 was triggered. The Court further explained that the March 1971 rating decision focused its determination that a nervous condition was noted on entry into service, that the nervous condition had pre-existed service, and that the nervous condition was not aggravated in service. The RO then stated that the subsequently diagnosed psychosis represented an extension of the nervous condition. The evidence upon which the RO relied essentially was the notation of a "nervous condition" on examination at entry into service; the doctor's notes from the May 1969 VAH that recorded that the Veteran had been treated for schizophrenia in high school; and the January 1971 medical opinion that attempted to reconcile the nervous condition with the psychosis diagnosis.

In the July 2012 memorandum decision the Court specifically found that the May 1969 doctor's notes indicating that the Veteran had been diagnosed and treated for schizophrenia in high school did not constitute clear and unmistakable evidence that the Veteran had suffered a psychosis prior to service. It was found that the source of the doctor's statement was the Veteran's father who was described as being inconsistent and a poor historian. No attempt to obtain the medical records from the doctor who had reportedly made this psychosis diagnosis prior to service was made by the RO. As the records were not obtained and the history of pre-service diagnosis of schizophrenia was from a lay statement made by someone who was reportedly inconsistent, the Court could not conclude that the evidence undebatably showed the Veteran's schizophrenia pre-existed service. The Court went on to state that, in addition, it could not conclude that the January 1971 medical opinion was "clear and unmistakable evidence" that, prior to service, the Veteran had suffered from a diagnosed psychosis. The January 1971 medical opinion concluded that the Veteran's psychosis was "an extension" of the Veteran's nervousness and was "a new phase or later development of a condition formerly diagnosed differently as a nervous condition." The Court stated that, as such, the medical opinion was not compatible with the other alternatives set forth in the opinion request, specifically that the psychosis was the same as the nervous condition noted at entry into service. Rather, the Court went on to state, the evidence showed that the psychosis was a "new phase" or "later development" of the nervous condition noted at entry. Because the psychosis was a later development, the psychosis developed after entry into service and, therefore, could not have pre-existed entry into service.

The Court then reviewed whether, even assuming that there was clear and convincing evidence that the psychosis existed prior to service, lack of aggravation during service had not been shown. To do so, it must be established by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. The Court stated that the evidence before the RO in 1971 consisted of the STRs showing that the Veteran was treated for moderate anxiety reaction secondary to "girlfriend problems" on one occasion in service and the 1971 medical opinion concluding that, in May 1969 that the Veteran's nervous condition had developed into a psychosis. The Court concluded that the RO's finding in 1971, that the nervous condition was not aggravated in service was not supported by "clear and unmistakable evidence" that there was no increase in disability during service. The Court reasoned that the January 1971 medical opinion must be interpreted as showing that the psychosis was a "new phase" or "later development" of the nervous condition noted at entry. There appeared to be no evidence as to why the nervous condition developed into a psychosis and no specific finding that the development was the result of the natural progression of the nervous condition.

The Court then ordered the Board to make a determination regarding whether the Veteran's nervous condition may have been aggravated beyond the natural progression of the disease and, if not, address the question of presumptive service connection under the provisions of 38 U.S.C.A. § 1112. As noted, the evidence of record at the time of the March 1971 RO decision did not include findings regarding whether the aggravation of the nervous condition was the result of the natural progression of the disease. As such, the Board has no basis for making such a determination.

Based on the posture of this case as outlined above, and in light of the Court's holdings in this case, the Veteran is considered sound on entrance, and the remaining question is whether service connection for schizophrenia would have been awarded had the rating board in March 1971 applied the legal criteria correctly. Essentially, with the correct application of the presumption of soundness, the Veteran's claim has been transformed from one of aggravation to one of service incurrence. In other words, the Court's finding that the evidence of record at the time of the March 1971 rating decision was not sufficient to rebut the presumption of soundness at entry into service, results in a finding that the Veteran entered service in sound condition as to a psychosis. This is not a determination that he is entitled to an award of service connection for his schizophrenia and this matter was remanded to the Board for such a determination.

Given the Court's findings regarding the 1971 RO's incorrect application of the presumption of soundness, the Board must conclude that the outcome of the March 1971 decision would have been manifestly different as the question would become one of service incurrence rather than service aggravation. At that time, the evidence did not show schizophrenia while the Veteran was on active duty, but first showed a psychosis in May 1969, less than one year from the Veteran's discharge from active duty. The report of the VAH from May 1969 noted symptoms of suicidal and homicidal ideation, which would be considered to be productive of mild social and industrial impairment warranting a rating of 10 percent under the criteria for evaluation of schizophrenia in March 1971. See 38 C.F.R. § 4.132, Code 9204 (1971).

As the evidence shows schizophrenia to a degree of 10 percent less than one year from the Veteran's discharge from active duty, the Board must conclude that the misapplication of the law regarding the presumption of soundness in 1971 would have manifestly changed the outcome of the case such that service connection based on presumptive service connection would undebatably have been awarded. As such, service connection for schizophrenia must be granted.

ORDER

The appeal to establish CUE in the March 1971 rating decision which denied the Veteran service connection for schizophrenia is granted; service connection for schizophrenia is granted.

____________________________________________

BARBARA B. COPELAND

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs