Citation Nr: 1040141 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 06-17 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho 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 Emily L. Tamlyn INTRODUCTION The Veteran served on active military duty from October 30, 1973, to March 4, 1974. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in Boise, Idaho. In that decision, the RO denied a claim for service connection for schizophrenia. In August 2006, the Veteran testified before a decision review officer at a hearing. A copy of the transcript has been associated with the file. The Veteran did request a Board hearing on his May 2006 appeal form. As the Board is granting the benefit sought, there is no need for the hearing. As explained further below, the Veteran will not be prejudiced. In October 2008, this claim was remanded to give the Veteran the opportunity to submit more private records and to afford him a VA examination. The Board finds these actions have been completed. FINDING OF FACT Resolving all doubt in the Veteran's favor, his diagnosed schizophrenia is related to military service. CONCLUSION OF LAW Schizophrenia was incurred by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Without deciding whether the notice and development requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied for the Veteran's claim for service connection, the Board concludes that the law does not preclude it from adjudicating the Veteran's claim. The Board is taking action favorable to the Veteran by granting service connection for schizophrenia. A decision at this point poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The agency of original jurisdiction (AOJ) will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. See, Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2010). Service connection for certain diseases, such as psychosis, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010). This presumption operates even though there is no evidence of such disease during the period of service. Id. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113. In some cases, lay evidence is competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995) and Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited within). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1991). When the claim is in equipoise, the reasonable doubt rule is for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). The Board finds that in this case service connection is warranted as the evidence is in equipoise. In coming to this conclusion, the Board relies on the private medical opinion from the Veteran's treating physician as well as the competent lay statements in the file regarding the timeline of the Veteran's disability. Service treatment records show the Veteran underwent an enlistment examination in September 1973. He reported being in a bike-car accident one month prior. Only a mild facial injury was reported. Mental status evaluation was noted as normal. On October 31st, one day after enlistment, the Veteran passed out. He had not eaten anything in two days. A January 1974 service personnel record shows the Veteran was being discharged, citing the Veteran's inability to grasp the basic fundamentals of military life and his lack of desire to improve his ability. He had consistently low results at "pro park" after nine tests. On his February 1974 separation examination, the Veteran requested a "brain test" on his separation examination because he passed out. Mental status evaluation was checked as normal. After service, a work history recorded for the Social Security Administration (SSA) shows the Veteran made molds at plastic factory in the summer of 1973; was a laborer at a paper company from 1974 to 1975; and worked at family dry cleaning business folding from November 1979 to September 1980. As shown by the October 1984 VA field examination report and other documents in the file, the Veteran's "work" at his family's dry cleaning business was minimal; he was forgetful and needed constant supervision. In a SSA disability report, the Veteran stated his illnesses, injuries, or conditions first bothered him in March 1976. This was also the same time he became unable to work because of illnesses, injuries or conditions. In another statement to SSA received in November 2005, the Veteran's mother said the first time the Veteran began to act bizarrely was after his discharge. Several other statements from family members, friends and neighbors showed the Veteran was changed after his service. In a statement received in August 2006, R.T. said he grew up with the Veteran and remembered seeing him acting strange shortly after returning from the Army. The Veteran's cousin, D.M., remembered seeing the Veteran after soon after service-he knew it was soon after because the Veteran still had a short military haircut. Prior to his service he always wore his hair long. He was walking alongside highway leading into town wearing denim overalls with no shirt. He had "freakish smile" on his face. The cousin remembered his mother commenting that the Veteran had not been the same since he got back from the military. The Veteran's brother also stated that after the Veteran was discharged he displayed abnormal and bizarre behaviors. In October 1979, a hospital where the Veteran had applied for a job sent an inquiry to his last employer, the paper company. The paper company stated the Veteran worked for them from September 3, 1974 to July 2, 1976. He had unsatisfactory absenteeism and dependability. He had adequate abilities in other areas like getting along with others, taking instructions and quality of work. He was discharged due to absenteeism. In December 2000, the Veteran's mother wrote another statement to SSA. She noted that the Veteran was discharged from Army due to his inability to perform normally. When he returned home, the family began to notice his bizarre behaviors. The family was not familiar with mental illness. Eventually he was taken to a family doctor who recommended a psychiatrist. The Veteran was first diagnosed with paranoid schizophrenia or organic brain damage in January 1981 when he was referred by a family doctor and admitted for hospitalization. This record notes that in the past 3 to 4 years the Veteran had become increasingly withdrawn and spent his time "in a fantasy life." A heavy drug history from high school was noted. In a summary from January 1983, Dr. Kamm stated that the Veteran's "schizophrenic process" had recently failed to improve with antipsychotic medication. Dr. Kamm had continued to treat the Veteran since 1981 stated the Veteran was unable to handle his own affairs. In August 1984, a VA field report noted the Veteran's condition continued relatively unchanged. In April 1986, a VA examiner noted the Veteran's disability continued to be severe. A July 1991 Idaho disability examination report noted the Veteran continued to be cared for by his parents since his decomposition into chronic schizophrenia. A May 2001 VA psychiatric evaluation showed that the Veteran was living independently, but working in sheltered environment. He continued to take his medication. The Board finds the Veteran is not competent to state what his symptoms were in the past due to his memory problems (associated with his current diagnosis) and that multiple documents in the file show the Veteran is a poor historian (for example, see the Veteran's April 2009 interview with a social worker where he is described as a "marginal historian"). However, the lay statements from others in the file demonstrate that they are competent to report what they observed regarding the Veteran's behavior. Layno v. Brown, 6 Vet. App. at 469-71. The Board finds these statements are also credible as each statement tends to reflect the same observations regarding the time period right after service. Caluza v. Brown, 7 Vet. App. at 511. Several opinions were given about whether the Veteran's diagnosed schizophrenia was related to his service. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). The first diagnosis was given seven years after service, but the Veteran's work history and lay statements demonstrate that he was symptomatic before the diagnosis. In May 2008, the Veteran's treating physician Dr. Kamm submitted a positive nexus opinion along with a description of his qualifications. Dr. Kamm had worked as an adult psychiatrist for over 35 years. Dr. Kamm stated: It is my opinion that [the Veteran's] current schizophrenia is a chronic condition that more likely than not manifested itself during his military service and lead to his actions which resulted in his discharge. It continued to manifest itself in the year after his discharge resulting in his inability to hold a job post military service. Dr. Kamm reviewed his prior medical reports from the 1980s, the service treatment records, his service personnel records, several lay statements and the August 2006 decision review officer hearing transcript. He asserted that the first manifestations of the Veteran's currently diagnosed schizophrenia were in service, as demonstrated by the symptoms and activities in service. He went on to explain that symptoms of schizophrenia include trouble functioning in the work environment, lack of interest in activities, a reduced ability to plan or carry out activities, loss of motivation, problems making sense of information difficulty paying attention, and memory problems. The Veteran also received a VA examination in April 2009. The Veteran was interviewed by a social worker. He was also interviewed by a VA psychiatrist examiner and given a mental status examination; the diagnosis of schizophrenia was confirmed. The examiner also reviewed Dr. Kamm's opinion in the file. The examiner observed from reviewing the evidence that the Veteran did work after service and that Dr. Kamm did not address the Veteran's pre-service drug abuse. The examiner opined: I do not feel that the veteran's schizophrenia can be regarded as having been incurred while he was in the service or in the year after his discharge from the service. The fact that it took 7 years from his discharge time of March 4, 1974, until his first psychiatric hospitalization on January 9, 1981, lends credence to the conclusion that the veteran could not have been exhibiting schizophrenic symptoms for that length of time without coming to the attention of and the need for psychiatric care. In support of this contention, the examiner cited to "the bulk of medical evidence" and stated that to assert the Veteran was suffering from schizophrenia from 1974 to 1975 would be mere speculation. In March 2010, Dr. Gordon reviewed the Veteran's medical file and records. She summarized lay statements and recited the definition of schizophrenia and its DSM-IV diagnostic criteria. Dr. Gordon opined: It is apparent that given the sequence of events, (sic) that the veteran's impairment that was displayed during service could be considered early signs of what was later diagnosed as paranoid schizophrenia. As previously stated, the thought processes of individuals with schizophrenia are characterized by internal inconsistencies, and an inability to stay on track (derailment) as was observed in this veteran. She concluded it was as likely as not that the Veteran's displays of symptoms in service (his inability to understand his role and improve his function) were early signs of schizophrenia. The Board finds that the claim is in equipoise. The Board acknowledges that the service treatment records show that mental status evaluations were checked as normal. However the service records also show that the Veteran had difficulty adjusting to military life and as such was discharged after a very short period. Thereafter, the record contains lay statements that the Veteran's behavior had changed when he returned from service. The Board has no reason to doubt the credibility of those statements, particularly after reviewing the Veteran's work history. Thereafter, the record contains conflicting medical opinions. With respect to the medical opinions, Dr. Kamm treated the Veteran during the time period of his initial diagnosis and provided a fully articulate and sound reason for his conclusion regarding the etiology of the Veteran's schizophrenia. As a result, Dr. Kamm's opinion is assigned great weight. Nieves- Rodriguez, 22 Vet. App. at 304. The April 2009 VA examiner also provided a reason for the opinion that the Veteran's schizophrenia was not related to service (he worked after service and his drug abuse was not explained) but only stated that medical evidence supported the opinion. As a result, the opinion is assigned less weight. Id. As Dr. Gordon did not examine the Veteran at all and also only cited to a broad definition of schizophrenia, that opinion is assigned the least weight. Id. Given the equally probative evidence both for and against the Veteran's claim, the Board finds the evidence to be in equipoise regarding whether the schizophrenia was incurred in service. As a result, the benefit-of-the-doubt rule does apply, and the claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for schizophrenia is granted. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs