Citation Nr: 1302240 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-20 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder to include paranoid schizophrenia and anti-social personality disorder. 2. Entitlement to special monthly pension based on need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Douglas E. Sullivan, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to October 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina and in June 2009 by the VA RO in Decatur, Georgia. The Veteran testified during a hearing before the undersigned Veterans Law Judge in October 2012. A transcript of the hearing is of record. The Board observes that the Veteran filed a claim for special monthly pension based on need for regular aid and attendance of another person or by reason of being housebound due to his psychiatric disabilities. At the time the Veteran filed that claim he was not service connected for any psychiatric disability. During the hearing the Veteran testified as to how his schizophrenia affects his ability for self-care and that it essentially renders him housebound. In the decision below, the Board is granting entitlement to service connection for paranoid schizophrenia. Therefore, the Board infers a claim for special monthly compensation based on need for regular aid and attendance of another person or by reason of being housebound due to his paranoid schizophrenia. Accordingly the issue of entitlement to special monthly compensation based on need for regular aid and attendance of another person or by reason of being housebound has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to special monthly pension based on need for regular aid and attendance of another person or by reason of being housebound 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 paranoid schizophrenia had its onset during active military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, paranoid schizophrenia 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. Duty 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 paranoid schizophrenia in December 2006. He contends that he began to have symptoms of schizophrenia and an antisocial personality disorder during active military service. 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 Board observes that the VA examiner in August 2007 determined that that the Veteran does not have paranoid schizophrenia, but a substance-induced psychotic disorder. In support of his opinion of the new diagnosis, the examiner noted that there was no data to support absence of illicit substance (preferably three to six months of cocaine) and then a re-evaluation for his primary psychotic symptoms. However, private psychiatric evaluations received after the August 2007 VA examination reveals that the Veteran was provided with a diagnosis of paranoid schizophrenia absent of any illicit substance. See letters dated in August 2007 and August 2007 from private psychiatrists. Furthermore, a forensic psychiatric evaluation report dated in February 1999 considered the Veteran's illicit drug use and determined that it was not possible to state definitely whether the Veteran's psychotic symptoms are primarily the result of a disease such as schizophrenia or the result of his prolonged and heavy use of cocaine. He explained that it is estimated that approximately half of the people who are diagnosed with schizophrenia also abuse substances at some point during their illness and several research studies have shown that many schizophrenics use stimulants as self-medication in an attempt to control some of their more aversive symptoms. Based on the foregoing, the Board finds that the evidence is at least in equipoise on whether the Veteran has a current diagnosis of paranoid schizophrenia. The Veteran testified that he first started having symptoms of his schizophrenia during military service and this was manifested in disciplinary actions during military service for personal hygiene problems and failure to report to the ship in a timely manner. Hearing Transcript at 2. A review of the Veteran's service treatment records reveal that the Veteran was not diagnosed with or treated for a psychiatric disorder during military service. However, the Veteran's service personnel records document that in October 1968 the Veteran had an unauthorized absence and he missed the sailing of his ship. A March 1968 performance evaluation shows that the Veteran's personal hygiene had made him unpopular with his shipmates causing him to drawback further into himself. He displayed no desire to learn and he had to be constantly prompted to get to work. The evaluation also noted that the Veteran constantly failed to carry out instructions. The Veteran's service records reveal that he was not recommended for reenlistment in October 1969 due to sub-standard performance and his inability to adapt to military service. The first medical evidence of treatment for or a diagnosis of a psychiatric disorder (where he was diagnosed with paranoid schizophrenia) was in a June 1993 psychological evaluation for Social Security Disability benefits, approximately 24 after discharge from military service. With respect to the issue of whether the Veteran's current diagnosis of paranoid schizophrenia is related to active military service, the Board observes that the record contains a positive private medical opinion. Specifically, a private psychiatrist in September 2007 provided the opinion that based on the totality of the evidence available to him; the Veteran probably had symptoms of psychiatric illness, which contributed to his difficulties in the military. The Board notes that the Veteran provided the psychiatrist with a copy of his service records documenting the problems he had during military service. The psychiatrist explained that it is plausible that the Veteran's problems in the military may have been a function of his current psychiatric disorder. The psychiatrist noted there has been ample evidence of early childhood onset for schizophrenia even without overt symptomatology in comparison with the normal population, with observed delays in neurological development. He concluded that the problems the Veteran described in organizing his thoughts and behavior, poor hygiene and difficulty adhering to military structure seems to be consistent with the kinds of negative symptomatology that is seen in patients with a thought disorder in a prodromal phase. The Board finds that this opinion is probative as the private psychiatrist provided a clear explanation based on an evaluation of the Veteran and a review of some of the Veteran's service records. 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). Furthermore, the claims file does not contain any medical opinion to the contrary. 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 paranoid schizophrenia 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 paranoid schizophrenia was incurred during active military service and entitlement to service connection for a paranoid schizophrenia is warranted. ORDER Entitlement to service connection for paranoid schizophrenia is granted. REMAND After a review of the record, the Board finds that a remand is necessary for further development with respect to the remaining issue on appeal. In this regard, the Board notes that the Veteran was not provided with a VA examination that evaluates all of his disabilities considered for pension purposes to determined whether he is housebound for VA purposes or in permanent need for regular aid and attendance. Accordingly, the Board finds that the Veteran should be provided with such VA examination in order to properly adjudicate the claim. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran an appropriate VA examination to determine whether he is housebound for VA purposes or is in permanent need for regular aid and attendance. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should identify any and all pathology the Veteran manifests, and document all symptomatology to facilitate appropriate evaluation of same. The examiner is directed to offer the following opinion: is it at least as likely as not (i.e., a 50 percent or more probability) that the Veteran's disabilities (including: paranoid schizophrenia, allergic rhinitis, chronic obstructive pulmonary disease, status post gunshot wound with abdomen scar, dermatitis, bronchitis, and any other conditions objectively shown to be impairing of functioning) render him essentially helpless with respect to self-care and/or render him housebound. The examiner should provide an explanation for all conclusions reached. 2. Upon completion of the foregoing, readjudicate the Veteran's claim of entitlement to a special monthly pension based on need for regular aid and attendance of another person or by reason of being housebound, 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). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs