Citation Nr: 1128159 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 06-35 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for paranoid schizophrenia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from July 7, 1974 to December 17, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating decision of the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the Veteran's requests to reopen his claims for service connection for paranoid schizophrenia and posttraumatic stress disorder (PTSD). The Veteran withdrew his request for a hearing in March 2007. In July 2008, the Board granted the Veteran's request to reopen his claims for service connection for paranoid schizophrenia and PTSD. The reopened claims were then remanded for additional development. A January 2009 rating decision granted service connection for PTSD and assigned a total rating, effective December 1, 2004, which is the date of the claim. This issue is therefore no longer before the Board for its consideration. FINDING OF FACT The Veteran does not currently suffer from paranoid schizophrenia. CONCLUSION OF LAW The criteria for entitlement to service connection for paranoid schizophrenia have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1); 73 Fed. Reg. 23, 353 (Apr. 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with VCAA notice with regard to his claim for service connection for paranoid schizophrenia in an April 2005 letter. This letter informed him of what evidence VA would obtain, what evidence he was expected to provide, and of what assistance VA could provide in obtaining evidence. This letter provided proper preadjudication notice in accordance with Pelegrini. The Veteran has substantiated his status as a veteran. The second and third elements of proper Dingess notice were provided in the preadjudication April 2005 letter. The remaining elements of proper Dingess notice were provided in the December 2006 letter, after the initial adjudication of the Veteran's claim. This timing deficiency was cured by readjudication of the claim in a January 2009 supplemental statement of the case (SSOC) after the VCAA-compliant notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. §5103A; 38 C.F.R. §3.159(c)(d). VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claim. The Veteran's service treatment records, service personnel records, Social Security Administration (SSA) records, VA treatment records and various private treatment records are associated with the record. In July 2008, the Board remanded the instant claim for a VA examination to be conducted to determine the etiology of any diagnosed paranoid schizophrenia found on examination. Such an examination was conducted in November 2008 and a sufficient medical opinion was given. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations and considered the full history of the disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not completed an authorization form to allow VA to obtain any other private treatment records. VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted. See 38 C.F.R. § 3.159(c)(1). In light of the above, the Board therefore concludes that there has been substantial compliance with the terms of the previous remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As neither the Veteran nor his representative has indicated that there is any outstanding pertinent information to be obtained, VA may proceed with the consideration of his claim. Service Connection Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (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")). Service connection may 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). Certain chronic disabilities such as psychoses are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Personality disorders are not considered disabilities for VA purposes and therefore cannot serve as a basis for a grant of service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background A July 1974 service entrance examination was negative for any relevant abnormalities and the Veteran denied nervous trouble of any sort in an accompanying Report of Medical History (RMH). The remaining service treatment records were negative for any complaints or diagnoses of, or treatment, related to any acquired psychiatric disorder. Service personnel records contain a November 1974 letter from the Assistant Post Chaplain stating that the Veteran was a seventh grade drop out with a "comic book mentality." The chaplain noted that the Veteran had a great deal of difficulty reading and that his limited mental facilities were negative toward the military. The Veteran declined a narrative reason for his separation from service in December 1974. A June 1983 private psychiatric evaluation found the Veteran's thought processes to be adequate, his memory to be intact and his insight to be fair. A 7-year history of multiple drug abuse (PCP, cocaine and LSD) and a 10-year history of alcohol abuse were reported. A diagnosis of multiple drug abuse was made. A February 1985 private psychiatric evaluation reflects the Veteran's reports that he was discharged from service due to nerve problems, insubordination and fighting with other soldiers. Mental status examination was negative for thought disorders, hallucinations or delusions. Insight, judgment and problem solving appeared fair. Psychiatric diagnoses included moderate generalized anxiety disorder and an explosive personality with antisocial behavior. A February 1985 VA discharge summary noted that the Veteran began having problems with drugs, including acid and angel dust, soon after service. Mental status examination found his concentration and attention to be normal. There were no hallucinations, delusions, looseness of associations, flight of ideations or push of speech. Discharge diagnoses included dysthymic disorder, substance abuse disorder and antisocial personality disorder. A March 1986 private psychiatric evaluation reflects the Veteran's reports of nerve problems for the past 10 years. Current symptoms included visual and auditory hallucinations, thought insertion and thought broadcasting. A long history of drug abuse, including the use of LSD, PCP and cocaine, was reported. Mental status examination found thought processes to be vague with some looseness of association. Judgment was fair. Diagnoses included schizophreniform disease, history of drug abuse, history of dysthymic disorder and antisocial personality disorder. A February 1987 VA discharge summary indicates that the Veteran was hospitalized following complaints of auditory hallucinations which instructed him to kill himself. A history of "many" hospitalizations and a diagnosis of chronic paranoid schizophrenia were noted. Mental status examination found some vague paranoid ideation without a flight of ideas or looseness of associations. Concentration and calculations were good, memory was intact and insight and judgment were fair. Discharge diagnoses included chronic paranoid schizophrenia with an acute exacerbation, polysubstance abuse disorder and alcohol dependency. In January 2001, the Veteran was awarded SSA benefits due, in part, to a mood disorder. A March 2001 VA psychiatric examination reflects the Veteran's reports of suspiciousness, paranoia, auditory hallucinations and a history of three suicide attempts. Mental status examination found paranoid delusions without active hallucinations, looseness of associations, flight of ideas, pressured speech, obsessive thoughts or compulsive actions. Following this examination, a diagnosis of paranoid schizophrenia was made. The examiner opined that this diagnosis was related to the Veteran's "fear of black people." An August 2001 VA treatment note reflects a diagnosis of anxiety disorder. An April 2004 VA treatment note reflects the Veteran's reports of nervous problems since service, including feeling paranoid and panicky when he was around people of color. He reported a history of cocaine abuse 10 or 12 years ago. Suicidal or homicidal ideations were denied and there was no evidence of psychotic symptoms. Assessments of anxiety disorder not otherwise specified (NOS) and personality disorder NOS were made. An April 2005 VA treatment note reflects the Veteran's reports of occasional auditory hallucinations, paranoia and anxiety. Thought content was not psychotic or dangerous. Insight into his illness was poor. Assessments of paranoid disorder/anxiety, personality disorder and symptoms of PTSD were made. A November 2008 VA psychological examination reflects the Veteran's reports of depression, visual illusions and auditory hallucinations since service. He reported that he believed he was a paranoid schizophrenic as he was paranoid and experienced hallucinations; no visible signs of schizophrenia were observed by the examiner. Mental status examination found him to be fully oriented with circumstantial thought process and auditory hallucinations. Current symptoms included hypervigilance towards and the avoidance of stimuli associated with the claimed trauma (i.e., an in-service assault by an African American), auditory hallucinations, difficulty concentrating, an exaggerated startle response and difficulty falling and staying asleep. In situations where individuals were present who reminded the Veteran of the in-service trauma, he reacted violently and avoided contact with others for this reason. He also experienced dissociative symptoms associated with PTSD which resulted in significant lapses in memory and disorientation to time and place. Following this November 2008 VA examination and a review of the Veteran's claims file, diagnoses of chronic PTSD, severe chronic major depressive disorder with psychotic features and alcohol dependence in sustained full remission were made. The examiner opined that the Veteran did not meet the criteria for a schizophrenia diagnosis as the symptoms he reported (hallucinations and paranoia) may be attributed to his PTSD. Both of these symptoms may be manifested by individuals experiencing severe posttraumatic stress. Additionally, he did not manifest any other symptoms associated with schizophrenia and presently received no treatment for it. Despite historical treatment for schizophrenia, it was the examiner's opinion that such a diagnosis and treatment were erroneous as the Veteran reported severe dissociative symptoms during that time period and was likely experiencing hallucinations and paranoia and, as a result, such difficulties may have been misinterpreted at that time. Schizophrenia is a disorder with a large genetic component and typically followed a chronic course; the Veteran's family history was negative for mental illness and there was no evidence of chronicity of schizophrenic episodes. Analysis Although the Veteran has been diagnosed with a variety of psychiatric disorders, including PTSD and an anxiety disorder, he has not been diagnosed with paranoid schizophrenia during the course of the appeal. Cf. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). The November 2008 VA examiner provided a detailed explanation as to why the Veteran's psychiatric symptoms did not warrant a diagnosis of paranoid schizophrenia. The Board notes that service connection for PTSD was granted in January 2009 and that PTSD is classified as an anxiety disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Psychosis is considered a chronic disease under the provisions of 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). As such, if manifested to a compensable degree within one year of service, service connection will be presumed. If the disease is manifested in service and at any time thereafter, service connection will also be conceded. 38 C.F.R. § 3.303(b). In this case there is no evidence that a psychosis was manifested to a compensable degree within one year of the Veteran's service discharge. Finally, there is no competent evidence of paranoid schizophrenia during the appeal period upon which to predicate a grant of service connection on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). As the competent medical evidence of record is negative for a current diagnosis of a psychosis, to include paranoid schizophrenia, service connection can be granted and the claim must be denied. ORDER Entitlement to service connection for paranoid schizophrenia is denied. ____________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs