Citation Nr: 1301804	
Decision Date: 01/16/13    Archive Date: 01/23/13

DOCKET NO.  06-24 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include a psychiatric disorder manifested by schizoaffective disorder.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and K.K.


ATTORNEY FOR THE BOARD

S. Layton, Counsel


INTRODUCTION

The Veteran served on active duty from May 1978 to May 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied the benefits sought on appeal.  The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review.

A hearing was held in July 2007 before the undersigned Veterans Law Judge sitting at the RO.  A copy of the hearing transcript has been associated with the claims file.

In a July 2011 decision, the Board denied the claim on appeal.  The Veteran appealed the July 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In February 2012, the Court granted the joint motion for remand filed by representatives for both parties, vacating the Board's decision, and remanding the claim to the Board for further proceedings consistent with the joint motion.

In December 2012, the Veteran's representative submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence.  This evidence is accepted for inclusion in the record on appeal.  See 38 C.F.R. §§ 20.800, 20.1304 (2012).

The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any psychiatric disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  However, the Veteran has not contended during the course of the current appeal that his claimed in-service disease and stressors have specifically caused PTSD, nor does the evidence of record indicate such.  Accordingly, the Board has characterized the issue on appeal as entitlement to an acquired psychiatric disorder other than PTSD, to include a disorder manifested by schizoaffective disorder.


FINDING OF FACT

The competent and credible evidence of record is in equipoise as to whether the Veteran's currently diagnosed psychiatric disorder was incurred during his military service.


CONCLUSION OF LAW

Resolving doubt in favor of the Veteran, the Veteran has an acquired psychiatric disorder that was incurred during his active duty service.  38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(c)(3), 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000

The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA).  The VCAA provides for an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002).

The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, is granted, as explained below.  As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is harmless.  

The Board adds that a March 2006 letter notified the Veteran as to how VA assigns disability ratings and effective dates.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Accordingly, the Board will proceed to a decision on the merits as to the issue on appeal.

Law and Regulations

Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychoses, when such are manifested to a compensable degree within the initial post-service year.  See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

In order to establish service connection for the claimed disorder, there must be 
(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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service."

Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service).  This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306(b) (2012).

A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012).

Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact or chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b) (2012).

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C.A. § 7104(a) (West 2002).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2010).  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


Analysis

The Board notes that a VA treatment record dated in July 1984 documents the Veteran's complaints of psychiatric symptomatology during his grade school years.  The Veteran also reported treatment during grade school at the July 2007 Board hearing.  Additionally, the February 2011 VA examiner indicated in her report that the Veteran "has a genetic predisposition to [the psychiatric disorder] as his brother experienced some form of delusions ... It appears to me that [V]eteran had a predisposition to the disorder based on family [history] and that it formerly manifested several years after he completed active duty service."    

To the extent that there is a question as to whether the Veteran had a preexisting psychiatric disorder that was aggravated by service, the Board notes that no psychiatric disorder was noted on the Veteran's May 1978 service enlistment examination and thus the presumption of soundness applies.  This presumption cannot be rebutted unless there is clear and unmistakable evidence that the acquired psychiatric disorder pre-existed and was not aggravated by service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  The Board observes that the Veteran's service treatment records do not document the presence of a psychiatric disorder.  Accordingly, the Board finds that there is not clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed service.  See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).  The presumption of soundness upon enlistment has therefore not been rebutted.  See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012); see also Bagby v. Derwinski, 1 Vet. App. 225, 227.

The Veteran is claiming entitlement to service connection for an acquired psychiatric disorder, which he contends is due to his military service.  As to Hickson element (1), the competent medical evidence of record demonstrates diagnoses of schizoaffective disorder and bipolar disorder.  Hickson element (1) is, therefore, satisfied.

With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Board observes that the Veteran testified that at the end of his military service, he was "burnt out, tired, [and] depressed."  See the July 2007 Board hearing transcript, page 8.  Additionally, the Veteran testified that during his period of military service in Germany, a grenade landed near him and he threw it back in the direction it came from and it exploded.  Id. at page 21.  Although the Veteran's service treatment records do not reflect complaints of or treatment for a psychiatric disorder, to include the Veteran's reported depression, the Board notes that the Veteran is competent to attest to handling a grenade.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay 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 professional).  Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of handling a live grenade.  There is nothing in the claims folder to suggest that the Veteran did not handle a live grenade as described.  Additionally, in statements dated in October 2012, the Veteran's mother and sister both remarked that the Veteran was a changed man after leaving active duty.  The Veteran's mother and sister are both competent to document what they are able to observe through their senses, and no other evidence of record impugns their credibility.  Accordingly, Hickson element (2) is arguably met.  

Turning to crucial element (3), medical nexus, the Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that the competent and probative evidence of record is in equipoise concerning a nexus between the Veteran's acquired psychiatric disorder and his military service.

In March 2009, the Veteran was afforded a VA compensation and pension examination.  The VA examiner concluded after examination of the Veteran and consideration of his medical history, that "it is NOT at least as likely as not that schizoaffective condition manifested to a degree of ten percent or more within one year following the [V]eteran's separation from the service."  While this evidence weighs against a finding that the Veteran's psychiatric disorder manifest itself to a compensable degree within one year following the Veteran's discharge, the examiner offered no evidence concerning any connection between the Veteran's currently diagnosed disorder and his active duty service itself.  

In February 2011, the Veteran was afforded another VA compensation and pension examination.  The VA examiner stated: "I cannot say, in light of the service and post-service medical evidence [of] record, whether it is at least as likely as not that the [V]eteran's current schizoaffective disorder is etiologically related to his active service ... I would rather state that [V]eteran's current schizoaffective disorder is not likely due to or caused by his active duty service but rather, during that time, stressors may have made him vulnerable so that his condition manifested within several years following his discharge from the military."  The given opinion is inconclusive, as the examiner appears to opine against the Veteran's claim and then opines that events from the Veteran's active duty made him vulnerable to a psychological condition.  The Board notes that the Court has held that medical evidence which is speculative, general or inconclusive in nature cannot support a claim.  See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  As this opinion appears to be inconclusive, it does not strongly weigh in favor of or against the Veteran's claim.

In December 2012, the Veteran's attorney submitted a medical report from J.M., Ph.D., H.S.P.P.  Dr. M. opined that the Veteran had Schizoaffective Disorder that began while he was on active duty.  Dr. M. interviewed the Veteran, his mother, and his sister.  Additionally, Dr. M. examined and made specific comments on the Veteran's service and post-service treatment records.  In particular, Dr. M. drew from observations given in the Veteran's initial mental health treatment records from June 1984 to support his conclusions.  Review of the opinion shows that the opinion reached therein with respect to whether the Veteran's psychiatric disorder was manifested during military service was based upon thorough review of the record and thoughtful analysis of the Veteran's entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"].  As he gave a detailed analysis and provided thorough reasoning to support his opinion, the opinion given by Dr. M. weighs strongly in favor of the claim.

Additionally, there are of record other medical opinions which appear to support the Veteran's claim.  Specifically, the Board notes that D.T. stated in a letter dated August 2006 that after noting the absence of treatment for a psychiatric disorder during the Veteran's military service and the diagnosis of adjustment disorder and mixed emotional features and schizotypal personality disorder in 1984, "I have a difficult time believing that [the Veteran] suddenly had this disorder.  He surely had these symptoms in the service, but may have not been properly diagnosed."  

Additionally, K.K., a licensed nurse who treats the Veteran at the Iowa City VA medical center provided testimony at the July 2007 Board hearing indicating that the Veteran's current psychiatric disorder is related to his military service.  

In evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part:  "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..."  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Likewise, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The medical opinions of record appear to be in equipoise.

In light of the fact that the Veteran is currently diagnosed with an acquired psychiatric disorder; the credible statements from the Veteran, his mother, and his sister that he began to experience symptoms during his active duty; the fact that private hospitalization records dating back to 1984 reflect psychotic symptomatology and eventually diagnosed Schizoaffective Disorder; and in light of the most persuasive medical examiner's opinion that the Veteran's psychiatric disorder began while he was on active duty, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran's acquired psychiatric disorder had its onset in service or is otherwise related to service.  Therefore, the Board will resolve doubt in favor of the Veteran and grant the Veteran's claim.

In summary, for the reasons explained above, having resolved doubt in favor of the Veteran, service connection for an acquired psychiatric disorder is warranted.


ORDER

Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include a psychiatric disorder manifested by schizoaffective disorder, is granted.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs