Citation Nr: 1301679 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-00 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1996 to June 1999. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2007 and December 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified during a hearing before the undersigned Veterans Law Judge in August 2010. A transcript of the hearing is of record. The Board remanded these matters in November 2010 and April 2011. The RO continued the denial of each claim as reflected in the October 2012 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT The evidence is in equipoise on whether the Veteran's current diagnosis of schizoaffective disorder is related to active military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, schizoaffective disorder was incurred during active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Merits of the Claim for Service Connection The Veteran filed a service connection claim for a psychiatric disability to include major depressive disorder and psychotic disorder in August 2007. He contends that he began to have symptoms of his current psychiatric disability in service to include depression and auditory hallucinations. Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet. App. 488 (1997). As noted above, in assessing whether the Veteran is entitled to service connection for a psychiatric disability, the Board must determine whether the Veteran has a current diagnosis of the claimed disability. The medical evidence of record shows that the Veteran has a current diagnosis of schizoaffective disorder. See VA treatment records dated in July 2007, October 2009, March 2010, July 2010 private medical opinion and September 2011 VA examination. The Board observes that a VA psychiatrist in October 2009 observed that the electronic VA record shows that the Veteran had a diagnosis of depression in April 2001 and in June 2003 the diagnosis was modified to psychotic disorder. The psychiatrist noted that he started taking care of the Veteran in February 2009 and diagnosed him with schizoaffective disorder. Furthermore, a private psychologist in July 2010 determined that the working diagnosis of depression in April 2001 evolved into a psychotic spectrum disorder that later became a schizoaffective disorder. Thus, the medical evidence of record shows that the Veteran has a current diagnosis of a psychiatric disability, schizoaffective disorder. The Veteran testified that he first started having symptoms of his schizoaffective disorder during military service to include depression and hearing voices. Hearing Transcript at 4 and 10. A review of the Veteran's service treatment records reveals that the Veteran was not diagnosed with or treated for a psychiatric disorder during military service. However, there is evidence that the Veteran may have had symptoms of a psychiatric disorder in service. In this regard, the Veteran indicated in a December 1996 report of medical history that he experiences depression or excessive worry. The physician assistant noted that the Veteran had a history of depression from being homesick and it was not considered disabling. After military service, the first medical evidence of treatment for a psychiatric disorder was in December 2000, approximately a year and a half after discharge from military service. The December 2000 VA treatment record shows that the Veteran indicated that he felt insecure around people (uncomfortable, threatened, and uncertain), he had poor social skills and he was depressed and anxious. The social worker noted that the Veteran's problems included denial, anxiety, depression and lack of reality. The Veteran was first diagnosed with a psychiatric disability of depression in April 2001, less than two years after discharge from military service. In addition to the Veteran's lay statements that his symptoms of a psychiatric disability began in service, the claims file also contains lay statements from the Veteran's mother and his former pastor. In a signed affidavit dated in May 2010, the Veteran's mother noted that the Veteran's depression began during his last year in the Navy. She explained that the Veteran wrote her a lot of letters that he was depressed and that he wanted to leave the military. She also noted that when he came home from the military she would see him talking to himself. His mother observed that the medication he received from the VA helped his symptoms. The Veteran's Pastor stated in a September 2007 statement that while the Veteran was on leave in the Navy between 1996 and 1999, the Veteran would visit with him. During these visits, the Veteran told him about hearing voices and he observed that the Veteran would talk to himself. The Veteran also confided in the Pastor that he was suffering from depression and that he had feelings of deep loneliness. The Pastor noted that the Veteran did not report these symptoms to the Navy because he was afraid he would be kicked out of military service. There is nothing in the record that indicates that these lay statements from the Veteran, his mother and his pastor regarding the Veteran's in-service symptoms of depression and auditory hallucinations are not credible. With respect to whether the Veteran's in-service symptoms of depression and auditory hallucinations are related to the Veteran's current schizoaffective disorder, the Board observes that the record contains two positive medical opinions. In this regard, the record contains a letter dated in July 2010 from a private psychologist. After reviewing the claims file and interviewing the Veteran over the phone, he provided the opinion that it is more likely than not that the Veteran's schizoaffective disorder began in service and has been severe ever since service. In support of his opinion the psychologist discussed the medical evidence of record, lay statements from the Veteran's mother and Pastor and the Veteran's lay statements. The psychologist submitted another letter in October 2011 asserting that the record clearly points to onset during service, particularly the statement provided by the Veteran's trusted Pastor and the statements provided by the Veteran's mother that describe the symptoms the Veteran experienced during military service. Furthermore, the record contains a positive opinion by a VA examiner in May 2012. The Board notes that originally the VA examiner provided a negative opinion in September 2011 relying solely on the service treatment records and medical evidence of record. When he was asked to the review the lay statements, in addition to the medical record, the examiner concluded that with the added emphasis on the Pastor's statement he thinks it is reasonable to determine that it is at least as likely as not that the Veteran's current psychiatric disability is related to depression and auditory hallucinations expressed to his Pastor. He noted that if there is a temporal association between his comments to his Pastor and the Veteran's active duty, then the Veteran's post service psychiatric problems as documented in his medical record are as likely as not related to service. The Board notes that that Pastor's statements reveal that there was temporal association between the Veteran's reported symptoms and service as the Pastor revealed that the Veteran reported these symptoms to him while the Veteran was on leave during active military service between 1996 and 1999. The Board finds opinions provided by the private psychologist in July 2010 and October 2011 and the VA examiner's opinion in May 2012 are probative, because they provided clear explanations for their opinion based on the pertinent medical and lay evidence of record and general medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). Based on the evidence discussed above, the Board finds that the evidence is at least in equipoise on whether the Veteran's current psychiatric disability of schizoaffective disorder had its onset during active military service. Accordingly, resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's schizoaffective disorder was incurred during active military service and entitlement to service connection for a schizoaffective disorder is warranted. ORDER Entitlement to service connection for schizoaffective disorder is granted. REMAND With respect to the Veteran's claim of entitlement to a TDIU, the Board notes that the claim is inextricable intertwined with the grant of service connection for a schizoaffective disorder, because the TDIU issue may be affected by the assignment of the disability rating and effective date for the grant of service connection for the schizoaffective disorder. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, adjudication of the TDIU claim will be held in abeyance pending the assignment of both a disability rating and effective date for service-connected schizoaffective disorder. Furthermore, if the RO determines that the disability rating of the Veteran's schizoaffective disorder is less than 100 percent, then the RO should provide the Veteran with another VA examination and opinion with respect to the Veteran's TDIU claim. Accordingly, the case is REMANDED for the following action: 1. After the RO has assigned a disability rating and effective date for the grant of entitlement to service connection for schizoaffective disorder, schedule the Veteran for a VA examination to determine whether the Veteran's current service-connected disabilities result in the Veteran being unemployable. The claims file must be made available for review and the examiner's report should reflect that such review occurred. All pertinent symptomatology and findings must be reported in detail. The examiner must elicit from the Veteran and record, for clinical purposes, a full work and educational history. The examiner should comment on the Veteran's level of occupational impairment caused by his schizoaffective disorder, midline L5-S1 disk herniation with radiculopathy of both lower extremities and hypertension. Based on the interview, examination and review of the claims file, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran is unable to obtain or maintain substantially gainful employment due only to his service-connected disabilities (at this time he is only service-connected for schizoaffective disorder, midline L5-S1 disk herniation with radiculopathy of both lower extremities and hypertension), consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. The examiner should provide an explanation as to why he or she believes that the Veteran is or is not employable. 2. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to a TDIU, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his attorney with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs