Citation Nr: 1128092 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 04-29 199 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a claimed innocently acquired psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from January 1976 to October 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2002 rating decision of the RO that determined that new and material evidence had not been submitted to reopen the claim of service connection for situational anxiety with insomnia. In February 2006, the Board determined that new and material evidence had been submitted to reopen the claim for a nervous disorder, including anxiety with insomnia, major depression with psychotic features, schizoaffective disorder and schizophrenia, undifferentiated type. The reopened claim was remanded for further development and adjudication. The Board sought a VHA medical opinion in November 2009. The opinion was rendered in September 2010. Thereafter, the claim was remanded by the Board in January 2011 for further development and adjudication. The claim has been returned to the Board and is now ready for appellate disposition. The matter on appeal has been recharacterized as it appears on the cover page of the instant decision in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), which mandates that the scope of a mental health disability claim include any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. The Veteran is shown to have exhibited manifestation consistent with an innocently acquired psychiatric disorder during his period of active service. 3. The more recently identified schizophrenia or schizoaffective disorder is shown as likely as not to be due to progressive mental illness that had its clinical onset during service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by schizophrenia or a schizoaffective disorder is due to disease or injury that that was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters: Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The evidence as presently constituted is sufficient to establish service connection for an innocently acquired psychiatric disorder, which is a full grant of the benefits sought on appeal by the Veteran as to this issue. Therefore, any outstanding notice or development not already conducted by VA as to this issue is without prejudice; hence, any deficiencies in the duties to notify and to assist constitute harmless error. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran contends that service connection for an innocently acquired psychiatric disorder is warranted. Specifically, he maintains this current condition is the result difficulties he experienced in service to include, but not limited to problems communicating due to his language barrier, mistreatment by his peers, and being court-martialed for going absent without leave (AWOL). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of at least 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Having considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of such evidence is at least in approximate balance, and the Board therefore will grant service connection for an innocently acquired psychiatric disorder. 38 U.S.C.A § 5107(b) (West 2002); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). A careful review of the Veteran's service treatment records shows that he reported having difficulty sleeping in January 1977. He indicated that he heard his name being called. He denied having hallucinations or delusions. He was diagnosed with anxiety. Also in January 1977, the Veteran reported hearing voices at night, but could not remember his dreams. He was diagnosed with a sleep disorder secondary to neurosis. In February 1977, the Veteran informed treatment providers that his peers did not like him because of the language barrier. He was diagnosed with maladjustment to his present surroundings. Post-service, the Veteran was hospitalized in July 1978 for an anxiety neurosis. The VA treatment records show the Veteran was very nervous and anxious. He also reported having a history of suicidal ideation and paranoid delusions. There were similar complaints in November 1978. An April 1979 buddy statement reported that the Veteran had been unbalanced since service. The buddy further indicated the Veteran had problems in service as he was unable to communicate due to the language barrier. The VA records dated in June 1979 continued to show treatment for anxiety. In an August 1979 statement, the Veteran stated that his nervous condition began during basic training in service. In February 1980, the Veteran was diagnosed with chronic undifferentiated schizophrenia. Thereafter, the Veteran was diagnosed with schizophrenia, anxiety and depression in 2001 and 2002. The records from Hato Rey Psychiatric Hospital show the Veteran was diagnosed with chronic, undifferentiated type, schizophrenia again in August 2002. A May 2003 record from Dr. JGA shows the Veteran continued to report hallucinations, nervousness and anxiety. He was diagnosed with schizoaffective disorder, depressive type. In a September 2004 statement, Dr. J. indicated that the Veteran was diagnosed with anxiety in service and with an anxiety neurosis in July 1978. He opined this was an erroneous diagnosis and the Veteran actually had schizophrenia, which began during his military service. The records from the Social Security Administration reveal that the Veteran was adjudicated disabled. His primary diagnosis was that of affective disorder with psychotic features. The reports of VA examinations in August 2008 and January 2009 indicated that a diagnosis or an etiology opinion could not be rendered as the Veteran had been uncooperative and there was not enough reliable data. In a recently received statement, the Veteran's mother disputed the examiner's statements indicating that she was present for the examinations and that he answered the questions posed. She stated that security was called as a precaution, which made the Veteran very nervous. She indicated that the examination was cut short and they were escorted out of the building. A September 2010 VHA medical opinion reported that the available records show that, for the first several years beginning during active service, there was a consistent pattern of diagnoses and treatment for anxiety or anxiety based disorders. The opinion added the first diagnosis of a psychotic disorder was in February 1980, which was chronic undifferentiated schizophrenia. The VHA medical reviewer opined that the record prior to 1980 was consistent with an anxiety disorder. The opinion added that there were no records between 1980 and 2002 to document the presence of a progressive mental illness or a clear indication of the onset of schizophrenia. The VHA medical reviewer stated that, if Dr. J's diagnosis of schizophrenia in 2004 was correct, it was possible to speculate that the initial complaints during the Veteran's military service were early signs of a progressive mental illness, but this was only one possible scenario. The VHA medical reviewer opined it was at least as likely as not that the Veteran's psychiatric problems during service were not directly related to his more recent diagnosis of schizophrenia or schizoaffective disorder. However, the Board finds the Veteran's assertions of suffering from ongoing anxiety and nervousness since service to be credible and consistent with the cumulative evidence of record, i.e. service treatment records showing diagnosis of anxiety and anxiety neurosis, treatment within one year of discharge from service for anxiety neurosis, and current treatment for a psychiatric disorder, variously diagnosed as schizophrenia, anxiety, depression, schizoaffective disorder, and affective disorder, depressive type. 38 C.F.R. § 3.303(b); Layno v. Brown, 6 Vet. App. 465 (1994); Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); Moreover, to the extent that the VHA medical reviewer has opined that the Veteran's psychiatric problems in service were not related to his more recently diagnosed schizophrenia or schizoaffective disorder, this statement is found to be based on the absence of clinical evidence pertaining to the period from 1980 to 2002. Given the nature of the manifestations exhibited in service and shortly thereafter, the Board finds the evidence to be in relative equipoise in showing that the Veteran manifested findings consistent with progressive mental illness that as likely as not culminated in the diagnosis of schizophrenia or schizoaffective disorder. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). ORDER Service connection for an innocently acquired psychiatric disorder manifested by schizophrenia or a schizoaffective disorder is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs