Citation Nr: 1035606 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 03-00 576 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to January 1975. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Jackson, Mississippi (hereinafter RO). The case was remanded by the Board in October 2004 and July 2009 for additional development, and the case is now ready for appellate review. FINDING OF FACT Schizophrenia is not shown in service or within one year thereof, and there is not of record a competent medical opinion linking schizophrenia to service. CONCLUSION OF LAW Schizophrenia was not incurred in or aggravated by service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). The duty to notify was fulfilled in the instant case by letter dated in March 2003 that informed the appellant of the information and evidence necessary to prevail in his claim. As for the duty to assist, the service treatment reports and VA and private clinical reports have been obtained, and the Veteran was afforded a VA examination in July 2009 that included an opinion as to whether schizophrenia was incurred in service or within one year thereof as requested by the Board in the July 2009 remand. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled. 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. § 11101; 38 C.F.R. §§ 3.303(a), 3.304. There are some disabilities, including schizophrenia, for which service connection may be presumed 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; 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). The service treatment reports, to include the reports from the January 1975 separation examination, do not reflect schizophrenia or any other psychiatric disabilities. It was noted on a February 1974 report from treatment for stomach complaints that the Veteran had a "lousy attitude," and a September 1974 report from treatment for epigastric pain included the notation that the Veteran was depressed and hostile toward his service in Korea. After service, the Veteran was afforded a VA examination in November 1975 that revealed no psychiatric disorder but did reflect a "[r]ather dull, queer affect." A September 1980 visit to a VA medical facility included a psychiatric examination that revealed no delusions or hallucinations and a diagnosis of inadequate personality. Thereafter, reports from VA hospitalization in July 1981 reflected a diagnosis of schizophrenia. The Veteran's uncle brought him into the hospital indicating the Veteran had been complaining about hearing voices since he was discharged from the service. Statements from private examiners in January 1982 and February 1982 document treatment for schizophrenia since August 1981. Reports from a VA field examination of the Veteran in April 1983 reflect that several individuals, including medical professionals, were contacted, but no information from these individuals was received that would clinically document symptoms of schizophrenia within one year of service. Thereafter, the record reflects VA inpatient treatment for schizophrenia in May, June and November 1988 and October 1989. VA outpatient treatment records dated in 2001 and 2002 reflected a diagnosis of schizophrenia. At a September 2002 hearing, the Veteran reported that he did not have any psychiatric problems prior to his active duty in Korea. He noted that he was not treated for schizophrenia during service and that he was not treated for the condition after service until 1981. He also testified that that there were no records, such as reports from examinations for insurance or employment purposes, that would have indicated that he had schizophrenia between his separation from service in 1975 and 1981. As indicated, the Veteran was afforded a VA examination in July 2009, as requested by the Board in the July 2009 remand, that included an opinion as to whether the Veteran had schizophrenia began in service or whether it was shown within one year thereof. The claims file was provided to and reviewed by the examiner, and following a review of the clinical history contained therein and examination of the Veteran, the examiner concluded that Veteran's schizophrenia did not have its onset in service or within one year thereof. In fact, this examiner found that the evidence did not support a current diagnosis of psychosis and "certainly not schizophrenia." The Board has reviewed the evidence as set forth above and concluded that given the lack of any evidence of schizophrenia in service or within one year thereof, and the lack of any competent opinion demonstrating that the Veteran has a current disability due to schizophrenia as a result of service, the claim for service connection for schizophrenia must be denied. Hickson, supra. It is clear from the evidence, and the Veteran's own admission in hearing testimony, that schizophrenia was first shown in 1981, well after the one year presumptive period for establishing service connection for schizophrenia. As for the Veteran's assertions that he has schizophrenia that his related to service, such assertions cannot be used to establish a claim as a layperson is not qualified to render a medical opinion regarding the etiology of disorders and disabilities. Espiritu; cf. Jandreau. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection for schizophrenia, the doctrine is not for application. Gilbert, supra. ORDER Entitlement to service connection for schizophrenia is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs