Citation Nr: 1136867 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 07-16 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include schizophrenia, adjustment disorder, and psychoses, not otherwise specified. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1977 to June 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was afforded a Travel Board hearing in May 2011. A transcript is of record. In regards to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, the Board acknowledges that the Veteran's claim for a nervous condition was originally denied in an April 1985 rating decision, and again in January 1989. He is now, however, currently seeking service connection for an acquired psychiatric disorder, including schizophrenia, adjustment disorder and psychoses not otherwise specified, which was not previously adjudicated. Because service connection was not previously denied for adjustment disorder and psychoses, it must be considered de novo. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Boggs v. Peake, 520 F.3d 1330 (2008), see also Ephraim v. Brown, 82 F.3d. 399, 402 (Fed. Cir. 1996). Also, the Board finds that characterization of the Veteran's claim as noted on the cover page of this decision best reflects the issue on appeal and will consider the acquired psychiatric disorder claim on the merits and not on a new and material basis. The Board observes that at his May 2011 hearing the Veteran appears to have raised issues regarding his back and toe. These issues, however, are not presently before the Board, and are referred to the RO for appropriate action. FINDINGS OF FACT There is competent and credible evidence that the Veteran has had continuing psychiatric symptoms from service to the present, and there is a current medical diagnosis for schizophrenia. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2011). To the extent there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with the issue on appeal given the favorable nature of the Board's decision with regard to the pending claim. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002). Service connection may also 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) (2011). Psychoses are deemed to be a 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. There must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). 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). Lay assertions, however, 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 subject to lay observation. 38 C.F.R. § 3.303(a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 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). Lay evidence can be competent and sufficient to establish a diagnosis 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, at 1377. "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. 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"). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service treatment records show that at his April 1977 enlistment examination the box labeled "psychiatric" was marked normal. Later that same month a note was made discussing the Veteran's previous incursions with the law, to include shoplifting and suspicion of extortion, and personality disorder, mild was diagnosed. In April 1980 the Veteran reported depression or excessive worry and nervous trouble of some sort. Service personnel records show that the Veteran's performance in September 1979 was considered exemplary. In fact, that performance review discussed his positive attitude, that he was a needed asset who helped build morale, and excellent example of how a soldier should look and act, and likely to contribute heavily. Just a month later, however, his performance review noted that his attitude needed improvement, and was not as good as it used to be. He was counseled to work on his job performance and to try to get along better with others. A May 1980 synopsis of his conduct showed that he had been counseled separately for two different incidents in October 1979. In November 1979 his difficulty getting along with others was addressed in counseling, as was his failure to obey an order, and that he had unauthorized visitors. His work performance was observed to have remained poor from December to February. In January his conduct included possession of marijuana and a pipe, and failure to repair. In February he received a letter of reprimand for hitting a female in the face characterized as "aggressive actions" against another that were "unwarranted and appalling." He also received an Article 15 for disrespect to a Senior Commissioned officer. Then, in April 1980 he had uniform violations and another failure to repair for duty. A psychiatric assessment in April 1980 diagnosed the Veteran as having "explosive personality." An undated Unit Commanders Report for the Psychiatric examination reported the Veteran's aggressiveness had declined, but he refused to work. In August 1980, following his June 1980 discharge from service, a bar to re-enlistment certificate noted the Veteran's very poor work performance, to include his poor effort and violent temper on numerous occasions. VA treatment notes referenced the Veteran's history of schizophrenia as dating to 1983, although a record of such initial diagnosis is not available. Treatment notes from 1987 show the Veteran had intermittent psychosis and was hospitalized for reportedly worsening chronic auditory hallucinations of the derogatory type and persecutory delusions. The Veteran was again hospitalized at Brentwood from May to October 1988 for paranoid ideation, with a diagnosis of chronic, paranoid schizophrenia. Corresponding records discuss the Veteran's fourteen prior psychiatric admissions during the four prior years, and a Vocational Rehabilitation note refers to the Veteran's first hospitalization at Brentwood as occurring in November 1984. The Veteran described feeling as if people were coming to kill him, and experiencing such desperation that he attempted to overdose on medication. He indicated that he had placed a bowl of water on top of a doorknob to determine whether someone attempted to enter his room, and when the bowl fell during the night, he was certain somebody tried to enter his room. The Veteran was observed with a frightened expression, and to be anxious and fearful. The Veteran was discharged with medications and plans to follow-up. The Veteran was placed in Olive Vista Convalescent Hospital, under VA contract, from October 1988 to July 1989. Treatment notes during that time period reference the Veteran's complaints of depression, and hearing threatening voices. He was described as unable to adjust to the world outside, withdrawn, and fearful. Treatment notes from 1989 show the Veteran continued to be fearful and paranoid, and to experience audio hallucinations, poor sleep patterns, mild depression, and bizarre thinking. He also displayed inappropriate social skills, and slightly mild hostility. In September 1994 the Veteran visited the RO requesting various services, and in the report of contact it was noted that the Veteran appeared to be paranoid and mentally disturbed. Treatment notes form 1995 reference an attempted suicide in 1993, and the Veteran's continuing active medical problems. He was briefly admitted to the mental health clinic in March 1995. A California Department of Corrections custody review from September 2003 discusses three incidents ranging from March 1986 to May 1996, including indecent exposure, fight/noise/offensive words, and sexual battery. VA treatment notes from 2005 showed a history of diagnoses to include schizophrenia, manic depressive, and mood disorder. Records from 2005 show the Veteran went to the emergency room at Torrance Memorial Medical Center complaining of depression with reported suicidal ideation, and on discharge he walked to Del Amo Hospital where he was admitted from October to November for schizophrenia, and assessed as having a Global Assessment of Functioning score of 20 on admission. The Veteran indicated that he had recently been released after spending three years in jail. He was paranoid with hallucinations encouraging him to hurt himself and others. His symptoms included depression, irritability, auditory hallucinations, persecutory delusions, paranoia, poor sleep, suicidal and homicidal ideation, and anxiety. VA treatment records from 2008 to 2010 show that the Veteran's thought process was tangential, disorganized with ideas of grandiosity, and paranoid ideation. He was variously assessed as having psychosis, not otherwise specified, adjustment disorder, and chronic paranoid schizophrenia. He had impaired judgment, limited insight, and an affect congruent with his mood. The Veteran reported having "hidden anger." At his May 2011 hearing the Veteran discussed having disciplinary problems while in service, and subsequent employment problems. He reported that he realized that he was acting out of character and had begun to hear voices such that he sought help from the VA in 1984, and was reportedly prescribed medications. The Veteran indicated he attempted work and rehabilitation programs, but that the same habits and unusual behaviors-described as anxiety problems and mood swings, continued. The Veteran indicated that he was threatened with violence and harassment. He indicated that he had anger issues. In summary, the Veteran has suffered from various psychiatric symptomatology since service. Specifically, service treatment and personnel records referenced the Veteran's anger, excessive worry and depression. Service treatment records show the Veteran reported he was first diagnosed with schizophrenia in 1983, and treatment notably is of record since 1987, and references earlier psychiatric treatment, including hospitalizations. The Veteran has been variously diagnosed as having schizophrenia, psychosis, not otherwise specified, and adjustment disorder. His record has shown continuous treatment, including hospitalizations, for his symptomatology, including his anger, also described as hostility, violent temper, fight/noise/offensive words. As such, there is an equipoise of the evidence, and the Board will resolve all reasonable doubt in favor of the Veteran. In light of the documented anger and apathy during service, and the competent and credible assertions that the Veteran struggled with psychiatric symptomatology during and since service, and the competent and credible evidence regarding a diagnosis of schizophrenia within a few years after separation from service, there is an equipoise of the evidence. Consequently, reasonable doubt is resolved in the Veteran's favor, and the Board finds that the evidence of record supports service connection for an acquired psychiatric disability other than PTSD. Because direct service connection is warranted, the Board need not address the alternate theory of entitlement on a presumptive basis. ORDER Service connection for an acquired psychiatric disability other than PTSD, to include schizophrenia, adjustment disorder, and psychoses not otherwise specified, is granted subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs