Citation Nr: 1019136 Decision Date: 05/24/10 Archive Date: 06/04/10 DOCKET NO. 05-04 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to March 1976. This appeal to the Board of Veterans' Appeals (Board) arose from a June 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's claim for service connection for pneumonia as well as his petition to reopen his previously denied claim for service connection for schizophrenia - concluding he had not submitted the required new and material evidence. In December 2006 the Board also denied both claims. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a November 2007 Order, granting a Joint Motion, the Court vacated the Board's decision and remanded the case to the Board for further development and readjudication in compliance with directives specified. In particular, the Joint Motion instructed VA to have various documents in the claims file translated from Spanish to English. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The requested translations were obtained and, in July 2008, the Board issued another decision again denying the Veteran's claim for service connection for pneumonia. However, the Board determined there was new and material evidence and, therefore, reopened his claim for service connection for schizophrenia. But after also determining this claim needed to be further developed before being readjudicated on its underlying merits, the Board remanded this claim to the RO via the Appeals Management Center (AMC). In April 2009, having completed this additional development, the RO issued a supplemental statement of the case (SSOC) continuing to deny this claim on its underlying merits and thereafter returned the file to the Board for further appellate consideration. Since recertification of this appeal to the Board, the Veteran's attorney has submitted additional supporting medical evidence in March 2010 and waived the Veteran's right to have the RO initially consider this additional evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2009). FINDING OF FACT As there is equally probative medical and other evidence of record for and against the claim, it is just as likely as not the Veteran's psychological symptoms and instances of violence and erratic behavior during his military service were early, i.e., prodromal indications of his since diagnosed schizophrenia. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's schizophrenia was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notify and assist Veterans with claims for VA benefits. The VCAA was codified at 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, though, since the Board is granting the Veteran's claim for service connection for schizophrenia - in full, there is no need to discuss whether there has been compliance with these notice-and-duty-to-assist provisions of the VCAA. This is because even were the Board to assume, for the sake of argument, there has not been, this is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). His claim is being granted, regardless. II. Entitlement to Service Connection for Schizophrenia Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. According to 38 C.F.R. § 3.384, psychoses include the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is a required 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or medical diagnosis, there generally must be competent evidence to the effect that the claim is plausible; lay assertions regarding this generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). There are exceptions to this general rule, however. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. Boyer, 210 F.3d at 1353; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Here, the report of the Veteran's December 2008 VA Compensation and Pension Examination (C&P Exam) provides a diagnosis of schizophrenia, undifferentiated type, very chronic with depressive features. So there is no disputing he has this claimed condition. Therefore, the determinative issue is whether his schizophrenia dates back to or is attributable to his military service - and especially to the type of symptoms and behavior he had while in service, so as to perhaps in turn indicate he was experiencing the early (prodromal) manifestations of this condition. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See, too, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). Concerning this purported cause-and-effect correlation, the Veteran asserts he experienced prodromal symptoms relating to his currently diagnosed schizophrenia while in service. See his attorney's April 2008 letter. The Veteran is competent, even as a layman, to proclaim that he experienced relevant psychiatric symptoms during service and during the many years since, including, for example, feeling depressed or hearing voices. He is not, however, competent to establish that the currently diagnosed schizophrenia is etiologically related to or a consequence of those symptoms purportedly experienced in service. 38 C.F.R. § 3.159(a)(2). See also Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See, too, Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Regarding the Veteran's asserted in-service psychological symptoms, the report of his March 1976 discharge examination notes a history of "nervous trouble" while in service and indicates he was treated for a mental condition while stationed in Germany. The report also includes the examiner's handwritten notes describing the Veteran's psychological symptoms as relating to personal problems. So the Board finds there is probative (competent and credible) evidence establishing the in-service incurrence of psychological symptoms as the Veteran asserts. That said, to establish entitlement to service connection, there also must be competent medical evidence linking the Veteran's currently diagnosed schizophrenia to those in- service psychological symptoms. See Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). There is competent medical evidence for and against the claim on this determinative issue. On the one hand, an April 2008 opinion from a private psychologist, C.R., Ph.D., indicates the Veteran exhibited symptoms consistent with prodromal schizophrenia while in service. She specifically notes the Veteran served for 15 months without incident until October 1975 - which she notes was about the time his daughter died and he exhibited violent and otherwise erratic behavior. She further concludes that his military records show his superiors documented he was not punctual, did not wear his uniform properly, did not follow instructions/orders, did not respond to commands, did not conduct himself appropriately, and lacked motivation. The Veteran's service personnel records show he was court martialed for assaulting two noncommissioned officers and destroying government property in October 1975. His service treatment records also show that he received medical attention and was hospitalized for treatment in relation to this incident. He was subsequently sent for remedial training, which he failed. Consequently, he was deemed unfit and released from active duty. On the other hand, the report of the Veteran's December 2008 VA C&P Exam indicates the Veteran's schizophrenia did not manifest while he was in service. In response to Dr. C.R.'s opinion, the VA examiner provides that while Dr. C.R. points out the elements in the Veteran's behavior that appear to be compatible with schizophrenia, she fails to establish a differential diagnosis, as the Veteran's behavior could also be attributed to his being depressed - which is likely, given that his hospitalization was a form of confinement akin to being in jail. The VA examiner goes on to discuss the October 1975 incident in question and the Veteran's intoxication during that incident. He concludes the Veteran's violent behavior cannot be taken as any indication of any specific mental disorder other than a reaction of an intoxicated individual. Disability resulting from alcohol abuse, since it is willful misconduct, generally cannot be service connected. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is a very limited exception to this general rule. In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, in March 2010, in rebuttal to the VA examiner's opinion, Dr. C.R. provided another letter further explaining the bases of her conclusion that the Veteran experienced prodromal symptoms of schizophrenia while in service. Her letter describes the progression of schizophrenia, generally, from a prodromal phase forward and discusses the progression of the Veteran's symptoms over time. In essence, her opinion indicates a slow decline and delayed treatment is typical of schizophrenia and that he necessarily had a prodromal phase preceding his 1987 initial diagnosis. In evaluating the probative value of these medical opinions for and against the claim, the Court has stated that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . [and that] the credibility and weight to be attached to these opinions [are] within the province of the adjudicator." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), the Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Medical evidence that is speculative, general or inconclusive in nature cannot be used to support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993). See also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) and Libertine v. Brown, 9 Vet. App. 521, 523 (1996). The Board, however, may appropriately favor the opinion of one competent medical authority over another, provided that it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion. Prejean v. West, 13 Vet. 444, 448-499 (2000). Here, both Dr. C.R.'s letters (the initial one and the additional one in response) and the December 2008 VA examiner's report are thorough, well-reasoned, and based on an independent review of the relevant evidence, including the claims file. Hence, both opinions have the proper foundation and predicate and, therefore, are entitled to a lot of probative weight. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). Neither doctor's opinion is necessarily more persuasive than the other. The Board therefore concludes that the medical nexus evidence supporting the claim is just as probative as the medical nexus evidence against the claim. That is to say, it is just as likely as not the Veteran's psychological symptoms and instances of violence and erratic behavior during his military service were prodromal symptoms of his later diagnosed schizophrenia. Thus, his claim must be granted with resolution of this reasonable doubt in his favor concerning this determinative issue of etiology. 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990) and Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for schizophrenia is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs