Citation Nr: 1107157 Decision Date: 02/22/11 Archive Date: 03/04/11 DOCKET NO. 02-05 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2000 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which determined that new and material evidence had not been submitted to reopen a claim of service connection for schizophrenia. In January 2004 and July 2005, the Board remanded the case for additional development. In January 2008, the Board determined that new and material evidence had been received sufficient to reopen the claim and it was remanded for further development. In February 2010, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2010, a Joint Motion for Remand was filed, and the Court subsequently granted the motion and remanded the matter for compliance with the instructions therein. In January 2011, the representative submitted additional evidence along with a waiver of RO jurisdiction. See 38 C.F.R. § 20.1304 (2010). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In the February 2010 decision, the Board acknowledged that the Veteran was competent to report that he experienced auditory hallucinations and had other difficulties during service. Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). The Board, however, determined that the Veteran's statements regarding in-service onset were not supported by the overall evidence of record and were not credible. As such, the Board did not assign significant probative value to a July 2009 VA opinion, which was based on the Veteran's reported history. Pursuant to the joint motion, the parties agreed that while the Board acknowledged the ruling in Buchanan v. Nicholson, 451 F.3d 1331 (2006), it improperly determined that the Veteran was not credible. It was noted that the Board pointed to the lack of in- service documentary evidence. The parties further agreed that the Board "may have" violated Colvin v. Derwinski, 1 Vet. App. 171 (1991) when "it offered its own medical analysis" that the Veteran's history was not consistent with in-service psychopathology to include any claim that the Veteran had in- service hallucinations. The parties stated it was unclear how the Board could look at service personnel records to show the Veteran did not experience in-service hallucinations, especially when the examiner opined that the prodromal phases of symptoms were not severe enough to require treatment. The Board has considered the instructions in the joint motion. The Board also acknowledges that the claims file now contains two medical opinions in support of the Veteran's claim. These opinions, however, are largely based on a reported history that is provided by the Veteran, his mother and sister, and not on all of the evidence. The Board has the duty to address the credibility and weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may also reject a medical opinion that is based on facts that it finds inaccurate or contradicted by other facts of record. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In reviewing the claims file, the following facts are noted: - Service treatment records do not document complaints of or treatment for any psychiatric symptoms. There are no medical records showing that a psychosis was compensably disabling within one year following discharge from active duty. - Active duty personnel records suggest the Veteran was a model airman and written evaluations indicate he was a quick learner and his performance, military bearing, and relationships with others were excellent. Promotion and retention were recommended and there is no evidence of a decline in performance. - Reserve records indicate the Veteran earned 15 active duty training points and 20 inactive duty training points during the period from May to September 1984; the Veteran started missing drills in approximately October 1984 and was discharged in 1985. - On September 12, 1993, i.e., almost ten years following his separation from active duty the Veteran was admitted to a private hospital. At that time, his sister reported he had been functional until about "three years ago" when he became preoccupied with having AIDS, but had tested negative. The Veteran reportedly had become increasingly withdrawn with poor self care hygiene and his behavior had been bizarre. The Veteran reported that he had a staph infection eight years prior and since that time had been worried about AIDS. He denied hallucinations or delusions. - Private record dated September 25, 1993 indicates a history of the Veteran being forgetful and having frequent clothing changes. He was also depressed. "Apparently this all began around three years ago when he started having a preoccupation that he had AIDS." - A psychosocial summary dated in October 1993 indicates that the Veteran's family stated he had been depressed for three years and "recently" had been talking to himself. The Veteran said that his precipitating event was a staph infection in 1986. The Veteran reported that he left the military because he wanted to make more money. - On private psychiatric evaluation in November 1993, the Veteran adamantly denied any history of hallucinations or delusions. - At a February 1997 private psychiatric evaluation the Veteran reported that he was involved with more people in service but found this became too stressful. He suggested more difficulty sleeping when he was in the military and that he was nervous. He denied having had any significant hallucinations, delusions, compulsions, or obsessions. - In a May 2004 statement, the Veteran reported, for the first time, that he had heard voices while in the military, became depressed, and had a rough time adapting to military standards. - An October 2007 statement from Dr. F.S. indicates the Veteran had been his patient for seven years. The appellant reported experiencing auditory hallucinations before discharge but did not report it. He also stated that one year after discharge he started experiencing hallucinations and delusions. - At a VA examination in July 2009, the Veteran reported a history of increasing symptomotology while on active duty. The examiner opined that the Veteran provided a credible history consistent with many presentations of schizophrenia, of having a prodromal phase of symptoms not severe enough to lead to psychiatric treatment or massive work difficulty in the early phase of the illness and by history occurred while he was in the service. The examiner acknowledged that there was no corroborating evidence indicating psychiatric symptoms in the claims file, but that the history was a "credible" one and consistent with a very standard onset of schizophrenic illness. The examiner did not attempt to otherwise reconcile the appellant's statements with the medical and personnel records which were prepared contemporaneously with the Veteran's service. - A January 2011 private psychiatric evaluation indicates that telephone interviews were conducted with the Veteran, his mother, and his sister. Following review of the "claims file" [N.B.-It is not explained how this examiner had the actual claims file since that has always remained in the custody of the VA.] and interview, the examiner concluded that it was at least as likely as not that the Veteran had the onset of prodromal symptoms of schizophrenia while on active duty. This physician noted that: o The Veteran reported that he began to experience auditory hallucinations two years after beginning active duty. The Veteran reported that he heard derogatory voices and progressively became more suspicious. The Veteran reported that he was confused and did not understand what was happening but he did not report his symptoms because he was fearful of the consequences. The Veteran reported that the voices increased after he left active duty and his life continued to disintegrate after he left the Reserves. o The Veteran's Mother reportedly stated that while on active duty the appellant appeared outwardly to be functioning very well but was concerned that they would "take away" his stripes and he felt he had to get out and could not reenlist. She stated that he was hearing voices telling him to do things and he was living with a girlfriend and had an ongoing fear that he had contracted AIDS. She stated that after leaving active duty the appellant's symptoms worsened. o The Veteran's sister reported, for the first time, that she became concerned about her brother while he was on active duty. [Please compare this statement with her statements made in September 1993.] The Veteran reportedly did not seem to be "his old self" and the family could not understand why he was changing. She stated he was hypervigilant and became hyperreligious. She stated that he was convinced he had AIDS, and that after he came home he could not hold a job. On review, the Board notes numerous inconsistencies in the reported history. Further, the Board continues to find the absence of any in-service complaints, treatment or diagnoses, as well as records prepared in-service and contemporaneous to the 1993 hospital admission, to be highly probative. At that time, the Veteran's sister reported he had been functional until about three years prior, i.e., about 1990. The Veteran's sister's 1993 statements are inconsistent with her retrospective recollections presented during a 2010 telephone interview, i.e., that the family had concerns while the appellant was on active duty. Further information supplied by the appellant's Mother and sister in 2010 suggests that the appellant's psychiatric illness was manifested in-service because the Veteran was preoccupied with a fear of having AIDS while on active duty, and that because of that fear he underwent frequent testing to determine if he carried the human immunodeficiency virus (HIV). This is not supported by evidence of record. There is no evidence that the appellant underwent frequent testing for AIDS while on active duty. Indeed, the first test available test to determine the presence of HIV (i.e., the enzyme-linked immunosorbent assay (ELISA)) was not even licensed and available until 1985, i.e., two years after the Veteran's discharge from service. See http://www.kff.org/hivaids/upload/6094-95 . The July 2009 VA and January 2011 private examiners' reports do not specifically address the inconsistencies of record. Considering this, and in light of the facts noted above, the Board finds that an additional medical opinion is warranted. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA psychiatric examination by a panel of three, composed of two board- certified psychiatrists and one psychologist. The panel should not include the VA examiner would conducted the July 2009 examination. All indicated tests must be accomplished. The claims folder and a copy of this REMAND must be made available to the examiner. The panel is requested to opine whether it is at least as likely as not, that currently diagnosed schizophrenia had its onset or was otherwise incurred during active military service. The panel should also consider whether it is at least as likely as not that schizophrenia manifested to a compensable degree within one year following the Veteran's December 1983 discharge from active duty. In making these determinations, the panel is requested to address whether the Veteran's documented in-service performance and level of functioning was consistent with a retrospectively reported lay recollected history of in-service psychopathology, to include the postservice assertion that he experienced auditory hallucinations while on active duty. The panel must also address the inconsistencies of record, particularly the history noted in-service, and provided on initial hospitalization in 1993, as compared to that provided many years following discharge when the appellant was seeking monetary VA compensation. The panel must provide a complete rationale for any opinion offered. In preparing their opinion, the panel must note the following: ? "It is due to" means 100 percent assurance of relationship. ? "It is at least as likely as not" means 50 percent or more. ? "It is not at least as likely as not" means less than a 50 percent chance. ? "It is not due to" means 100 percent assurance of non relationship. If the panel is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. That is, the panel must specifically explain why the causation or onset of schizophrenia is unknowable. All members of the panel should append a copy of their Curriculum Vitae to the examination report. 2. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 4. Upon completion of the above development and any additional development deemed appropriate, readjudicate the issue of entitlement to service connection for schizophrenia. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).