Citation Nr: 0812649 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 05-19 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as post-traumatic stress disorder (PTSD), major depressive disorder, psychosis, schizophrenia and schizoaffective disorder. REPRESENTATION Veteran represented by: Robert A. Laughlin, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Helena M. Walker, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for paranoid schizophrenia. The veteran appeared and testified at a Travel Board hearing in July 2007 at the Lincoln RO. The transcript is of record. The Board notes that the veteran originally applied for service connection for a nervous condition in February 1993, and the claim was subsequently denied in a July 1993 rating decision. The United States Court of Appeals for the Federal Circuit has held that a claim based on the diagnosis of a new mental disorder states a new claim when the new disorder had not been diagnosed and considered at the time of the prior notice of disagreement. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The veteran was not diagnosed as having the above-referenced psychiatric disorders until after the 1993 rating decision. Thus, the Board characterizes the veteran's current claim of service connection for the variously diagnosed acquired psychiatric disorder as a new claim. FINDINGS OF FACT 1. The veteran has an acquired psychiatric disorder, variously diagnosed as PTSD, major depressive disorder, psychosis, schizophrenia and schizoaffective disorder. 2. The veteran is currently diagnosed as having PTSD attributable to in-service personal assaults, which has been substantially corroborated by credible evidence. CONCLUSION OF LAW Resolving all doubt in the veteran's favor, an acquired psychiatric disorder, variously diagnosed as PTSD, major depressive disorder, psychosis, schizophrenia and schizoaffective disorder, is attributable to his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the veteran in proceeding with this appeal given the favorable nature of the Board's decision. Any error in the failure to provide notice involving the downstream elements of rating and effective date is harmless at this time, and can be corrected by the RO following the Board's decision. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran contends that his acquired psychiatric disorder was caused by two, in-service personal assaults. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Psychoses are deemed to be chronic diseases under 38 C.F.R. § 3.309(a) and, as such, service connection may be granted if the evidence shows that the disease manifest to a degree of ten percent or more within one year from the date of separation from service. 38 C.F.R. § 3.307. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and, credible supporting evidence that the claimed in-service stressor occurred. The diagnosis of a mental disorder must conform to the DSM-IV and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The VA will not deny a post-traumatic stress disorder claim that is based on in- service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA or potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. See C.F.R. § 3.304(f)(3). Of note, it is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The veteran's May 1977 enlistment medical examination is devoid of any reference to a preexisting psychiatric disorder. The veteran's service medical records (SMRs) reflect that in July 1977, he was stuck in the head with a broomstick by a PV-I. The PV-I was noted to have instigated the assault. The veteran was diagnosed as having a cerebral concussion, resolved. The SMRs reflect that the veteran was struck by his NCO in the barracks in November 1977. The veteran's injuries were noted to have been caused by a fall in which he hit the corner of an office desk. The veteran reported that upon being struck, he lost consciousness. The veteran was diagnosed as having a mild concussion. In January 1978, the veteran was found drinking heavily on the beach and had been caught in a heavy surf. He appeared unconscious. He was mute and unresponsive and then exhibited episodes of combativeness and hyperventilation. The veteran refused to talk or cooperate and was referred to psychiatry. That same month, the veteran underwent a psychiatric evaluation and was diagnosed as having cyclothymic personality disorder. It was noted that this was an underlying character and behavior disorder with marked impairment. The veteran manifested characteristics of "immaturity, poor judgment, pressured speech, euphoric affect despite considerable personal and social difficulties and bordering on manic depressive illness, manic type." The veteran's precipitating stress was listed as military duty and his predisposition to the disorder. The psychiatrist opined that the veteran's disorder existed prior to service. In a February 1978 report of psychiatric evaluation, the veteran was hospitalized due to "poor impulse control, poor judgment, and self-destructive tendencies." The veteran reported that his military experience was bad from the start. The veteran reported attempting to commit suicide by trying to drown himself. Reported were difficulties in relating to authority figures, responding to orders and his future adaptability to military life was unlikely, even with discipline. Upon a mental status examination, the veteran was diagnosed as having a chronic immature personality disorder. The veteran was not found to have a psychiatric disease or defect; rather, he was found to have a personality disorder and was subsequently discharged from service due to this disorder. Upon separation, the veteran reported that he had experienced: a head injury, depression or excessive worry, loss of memory or amnesia, nervous trouble and periods of unconsciousness. Post service, the veteran was noted as having an antisocial personality disorder as reflected in a March 1983 VA treatment record. In an August 1989 VA treatment record, the veteran sought treatment for a syncopal episode. He reported experiencing 3 to 4 episodes of blacking out within the previous month. The veteran's was noted to have a personality disorder with passive/dependent and sociopathic features. Further, he was diagnosed as having depression as evidenced by 2 suicide attempts. In a March 2003 VA treatment record, the veteran reported being assaulted in service, resulting in a head injury and loss of consciousness. He advised that he has heard voices since separation from service. The veteran was again diagnosed as having schizoaffective disorder and was noted to have GAF of 45. In a January 2004 VA treatment record, the veteran was diagnosed as having schizoaffective disorder, rule-out PTSD and rule-out major depressive disorder. The veteran was given a Global Assessment of Functioning (GAF) score of 20- 25. In the veteran's notice of disagreement, received in April 2005, he stated that since his November 1977 in-service assault, he began hearing voices and "seeing things." He reported experiencing nightly nightmares about his in-service assaults and requested participation in PTSD classes. In a February 2005 private treatment record, the veteran was diagnosed as having PTSD, schizoaffective disorder, depression, major depressive disorder and rule-out organic induced psychotic disorder. His history of multiple head injuries was noted and he was assessed a GAF score of 20-25. Noted were the veteran's in-service assaults and resulting visual and auditory hallucinations. The record also reflected the veteran's history of 20 to 30 hospitalizations at VA for auditory and visual hallucinations or for suicidal ideations. The veteran reported nightmares and flashbacks related to his in-service trauma, as well as daily auditory hallucinations. In an August 2005 report, the veteran's diagnoses included, schizoaffective disorder, delusions, thought withdrawal, depression with suicidal ideations, PTSD and rule-out organically induced psychotic disorder. His psychiatrist indicated that the veteran's history of mental symptoms "may have been the result of a head inj[ury]." The psychiatrist noted, however, that the veteran experienced head injuries in service and his symptoms of psychosis, delusions, depression and PTSD began then. At his Travel Board hearing, the veteran testified that his psychiatric problems began when he was hit in the head with a broomstick in service and that his flashbacks and nightmares began to increase after his second in-service assault. He reported subsequently experiencing paranoia, and auditory and visual hallucinations. The veteran testified that he was 17 years old at his enlistment and that he was a B student. He further related that he played football and baseball and was never in trouble. The veteran stated that he had intended to make a career out of the service. Given the evidence as outlined above, the Board finds that the veteran has an acquired psychiatric disorder, variously diagnosed as PTSD, major depressive disorder, psychosis, schizophrenia and schizoaffective disorder, which began during his service and is as likely as not resulted from the in-service assaults and resultant head trauma. The veteran credibly testified that prior to service, he was a normal teenager and planned to have a career in the service. The absence of findings of any psychiatric abnormalities at his entrance examination supports his assertion that he did not have a preexisting psychiatric disorder, acquired or otherwise. The SMRs reflect the two instances of the veteran's in-service personal assaults, and concussion was twice diagnosed. Following service there the veteran abused drugs, was homeless and had attempted suicide on numerous occasions. The veteran also testified, as corroborated by the medical evidence, that he's had auditory and visual hallucinations since service. Although the veteran was discharged with a diagnosis of a personality disorder, the more recent and, in our view, more probative evidence shows diagnoses of PTSD and other acquired psychiatric disorders. Finally, the August 2005 psychiatric report strongly indicated that the veteran's current mental illness(es) was caused by his in-service assaults and trauma to the head. Thus, the Board, in resolving reasonable doubt in favor of the veteran, finds that service connection for acquired psychiatric disorder, variously diagnosed as PTSD, major depressive disorder, psychosis, schizophrenia and schizoaffective disorder, is warranted. ORDER Service connection for an acquired psychiatric disorder, variously diagnosed as PTSD, major depressive disorder, psychosis, schizophrenia and schizoaffective disorder, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ M. W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs