Citation Nr: 1304608 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-24 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for schizophrenia, undifferentiated. 2. Entitlement to an evaluation in excess of 30 percent for anxiety disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and a friend ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A Travel Board hearing was held before the undersigned Veterans Law Judge (VLJ) in July 2012. The Board further observes that the Veteran in March 2012 filed a timely Notice of Disagreement (NOD) with the RO's April 2011 denial of an increased evaluation for service-connected anxiety disorder, and a TDIU. Hence, the RO must issue a Statement of the Case (SOC) on this matter as the next stage in the appellate process. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board presently decides the claim for service connection for schizophrenia, granting this benefit sought. The remaining issues requiring issuance of a SOC are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The competent evidence which substantiates a finding that the Veteran's diagnosed condition of schizophrenia was incurred during active military service is at least evenly balanced with that which tends to weigh against the claim. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria to establish service connection for schizophrenia are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2008). As indicated below the Board is granting the benefit sought on appeal of entitlement to service connection for schizophrenia. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) commented that competence to establish a diagnosis of a condition can exist 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. A layperson is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). However, lay testimony is deemed competent evidence with regard to matters within the purview of direct observation and firsthand knowledge, however. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. In the present case at hand, giving due consideration to the unique factual circumstances, as well as in light of prevailing applicable law and VA's duty to resolve reasonable doubt in the claimant's favor, the Board concludes that service connection is warranted. The averred theory of entitlement on the part of the Veteran is essentially that symptoms of schizophrenia had their onset during his active military service, from which he underwent separation in January 1973. The Veteran, along with several individuals who have known him for many years, steadfastly maintain that the Veteran had the beginning of schizophrenia contemporaneous with military service, regardless of the fact that initial manifestation of the condition is not directly reflected anywhere in his service treatment records (STRs). The Board regards these lay assertions from the Veteran and others as competent lay testimony of initial onset. See also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). This information, particularly when considered along with an October 2008 favorable medical opinion from a treating VA psychiatrist, ultimately warrants resolution of reasonable doubt in the Veteran's favor pursuant to 38 C.F.R. § 3.102, with result that the criteria for service connection are met. To briefly encapsulate relevant case background, the Veteran is already service-connected for an anxiety disorder, considered to have manifested soon after he underwent an abdominal surgery while in service and likely as a reaction to the underlying surgical procedure. The Veteran has since filed a new claim seeking service connection for schizophrenia as well. Initially, relevant mental health evaluations only revealed an anxiety disorder. On an August 2006 QTC independent medical examination (for VA purposes) the Veteran was diagnosed with anxiety disorder, not otherwise specified (NOS). It was further opined by the examiner that the anxiety disorder was directly related to in-service surgery conducted to alleviate a bowel disorder. Moreover, the Veteran underwent ongoing clinical evaluation and treatment by treatment providers at Durham VA Medical Center (VAMC) for anxiety and depressive disorders. On a subsequent QTC examination of November 2007, the clinical diagnosis was revised to that of schizophrenia, undifferentiated. The overall assessment further made reference to the Veteran's apparent "history of severe childhood trauma, started having paranoid ideas since 1971 when he perceived that the VA had misdiagnosed his abdominal condition as a result of which two emergency surgeries had to be done and that he almost lost his life, from that point he developed delusional preoccupations about various functions in his body, at the same time he was not able to function around other people as a result of which he got discharged from the military." Thereafter, an October 2008 letter from a VA staff psychiatrist with the Greenville, North Carolina Community Based Outpatient Clinic (CBOC) states that per telephone conversation with the Veteran, she had changed the diagnosis of the Veteran to chronic schizophrenia, paranoid type. It was noted that "[the Veteran] gives a history consistent with somatic delusions beginning while in the military predating appendectomy. Subsequent abdominal surgeries likely reinforced these somatic delusions. These delusions have decreased considerably since [the Veteran] has started antipsychotic medication.... His life reflects the course of chronic paranoid schizophrenia. He has never married, has no children and has lived in the street for years. I agree with the diagnosis of chronic paranoid schizophrenia with symptoms beginning while the Veteran was in active military service." The October 2008 lay statement from the Veteran's uncle attests to the fact that the Veteran's overall mental condition and outlook were dramatically worsened upon exit from military service, compared to that prior to service. The March 2010 lay statement from E.P., a friend of the Veteran, attests that he had known the Veteran since childhood, and recalled that after service he observed changes in the Veteran manifested by being "very unstable," having "formed a low opinion of himself" and being unable to keep jobs, as well as being "very paranoid." The author of the statement further observed that "having known [the Veteran] prior to his entry in service and closely observed him on his return and until this day, I fully feel that it is as likely as not that his entire adult life has been very adversely affected by his military career where he developed anxiety and paranoia to the extent that he cannot have a normal life." Then in August 2011, the Veteran underwent a VA Compensation and Pension examination by a psychologist, who diagnosed in relevant part, schizophrenia, paranoid type. A complete examination ensued, including with review of the claims file. The VA examiner further expressed the opinion that "the undersigned examiner is unable to determine whether [the Veteran's] schizophrenia diagnosis occurred during military service without resorting to mere speculation. There are no STRs that indicate any psychotic symptoms; however, he has consistently reported anxiety symptoms that developed after his military surgeries. The Veteran was in the military between the ages of 19-23 years, when a psychotic episode is likely to occur (mid-20s for males). However, without any medical evidence, it is again not possible to determine whether his schizophrenia diagnosis began during military service without resorting to mere speculation. Having reviewed the foregoing, the Board concludes that the evidence on the whole substantiates service connection, this notwithstanding that there is the contrary opinion on file from the August 2011 VA examination. To this effect, there is the October 2008 letter from a treating VA psychiatrist who clearly states her conclusion that in all likelihood the Veteran's symptoms of schizophrenia had their onset during, or contemporaneous with the Veteran's active military service. In so finding, this VA psychiatrist properly took into account the Veteran's competent report of in-service symptomatology, which the psychiatrist herself also viewed as credible and persuasive. The Board points out in this regard, moreover, that several other individuals who knew the Veteran have corroborated a service-related onset of symptomatology. Even the findings of the prior November 2007 VA examiner corroborate in the examiner's view a likely onset of schizophrenic symptoms in service. The Board duly notes that whereas unlike the August 2011 VA examiner, the October 2008 opining VA psychiatrist did not have the Veteran's STRs available for review, the psychiatrist providing a favorable opinion nonetheless had before her a sufficient basis in the Veteran's own assertions (deemed persuasive by the psychiatrist) to formulate a reasonably strong opinion with supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (an opining physician's review of the records from claims file, while important, is not dispositive absent review and consideration of most relevant case facts). The Board also finds the Veteran to be credible. Consequently, taking the probative October 2008 medical opinion from the VA psychiatrist, in comparison to the contrary opinion of the August 2011 VA examiner, the Board observes that the positive evidence favoring the existence of a medical nexus to military service is at least evenly balanced with that disfavoring service connection. Under such circumstances, reasonable doubt is to be resolved in the claimant's favor. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There is no doubt that further medical inquiry could be undertaken into this case, including as the Veteran has identified potential outstanding relevant VA medical records from 1975. However, the Board is satisfied at this stage that there is sufficient favorable evidence upon which to predicate a favorable disposition. Accordingly, the criteria for a grant of service connection for schizophrenia are met. ORDER Service connection for schizophrenia is granted. REMAND Records reflect that the Veteran has filed a timely Notice of Disagreement with the April 2011 RO rating decision denying an increased evaluation for anxiety disorder, and entitlement to a TDIU. In response, the Veteran was given by the RO the option of selecting between appellate review by an RO Decision Review Officer (DRO), or the traditional appeals process (an appeal to the Board). He has not yet definitively selected either option. It is therefore necessary that the Veteran is provided with a Statement of the Case on these particular issues, as the next stage in order to perfect an appeal to the Board. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 437 (1997). Accordingly, these claims are REMANDED for the following action: The RO/AMC shall issue a Statement of the Case addressing the issues of an increased evaluation for anxiety disorder and entitlement to a TDIU. Only if the Veteran submits a timely Substantive Appeal addressing these issues should they be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs