Citation Nr: 1034462 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 08-23 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1985. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating action by the Department of Veterans Affairs (hereinafter VA) Regional Office in New Orleans, Louisiana, (hereinafter RO). The October 2009 supplemental statement of the case found that the claim for service connection for schizophrenia had been reopened, and the adjudication below will be rendered on the same basis. In July 2010, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2002). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. FINDINGS OF FACT 1. Private hospitalization reports dated within one year of separation from service reflect that a psychosis was manifested to a degree of at least 10 percent. 2. Private and VA medical opinions have found that schizophrenia was aggravated by service. CONCLUSION OF LAW Schizophrenia is presumed to have been aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005). VA has issued regulations implementing the VCAA. 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2009). Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that this law does not preclude the Board from adjudicating the issue involving the Veteran's claim for service connection for schizophrenia. This is so because the Board is taking action favorable to the Veteran in the decision below. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Legal Criteria/Analysis It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including psychoses such as schizophrenia, for which service connection may be presumed to have been incurred in or aggravated by service if the disorder is manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where there is a 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. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. Id. 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). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay- observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Briefly summarizing the evidence of record, the record prior to service reflects psychiatric hospitalization from February 1975 to July 1975 and June 1980 to August 1982 for a variously diagnosed psychotic disorder. The Veteran, to include in sworn testimony to the undersigned in July 2010, has conceded that he had schizophrenia prior to entrance to service. However, he testified that his pre-service psychiatric disability was of a "mild" degree and that the rigors of his military service aggravated his schizophrenia beyond that which would have been the case if he was in civilian service. He also noted he was treated by a psychiatrist in service. The service treatment records from the Veteran's active duty are not of record, but within one year of separation from service, the Veteran received over one month of inpatient treatment for psychotic symptoms at two private facilities from April 1986 to May 1986. Treatment therein included antipsychotic medications, and his prognosis at discharge was listed as "guarded " Multiple private and VA medical opinions dated through October 2004 have stated that the Veteran suffers from schizophrenia that was aggravated by service. The reports from the August 2009 VA examination indicated the Veteran was experiencing delusions and was still taking anti psychotic medications. The VA examiner, who was provided with the claims file, concluded that she could not resolve the issue as to whether the Veteran's schizophrenia was aggravated by service without resort to mere speculation. Unless the preponderance of the evidence is against the Veteran's claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. As noted above, the pertinent legal criteria provide that service connection for a psychosis such as schizophrenia manifested to a degree of 10 percent or more within one year of service can be presumed to have been incurred or aggravated by service. Given the credibly described in-service treatment, together with the severity of the Veteran's psychotic illness as described on the reports from the hospitalization from April 1986 to May 1986, within one year of the Veteran's November 1985 separation from service, the Veteran clearly had a psychotic disorder that was manifested to a degree of 10 percent or more within one year of separation from service. As such, and given the private and VA medical opinions finding that the Veteran's schizophrenia was aggravated by service, it cannot reasonably be said that the preponderance of the evidence is against the conclusion that schizophrenia was aggravated by service. Thus, without finding error in the RO's action, the Board will find that service connection for schizophrenia may be granted on the basis of aggravation. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for schizophrenia on the basis of aggravation is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs