Citation Nr: 1310480 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 05-32 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to August 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In September 2012, the Board remanded the issue of whether new and material evidence had been submitted to reopen the claim for service connection for posttraumatic stress disorder (PTSD) to the RO for additional development. The case has been returned to the Board for further appellate review. Upon further review, the Board finds that the appeal stems from the September 2003 rating decision in which service connection for PTSD was denied. The Veteran filed a claim for service connection PTSD in October 2002, and the September 2003 rating decision reflects the denial was based on the RO's determination that there was no diagnosis of PTSD. In October 2003, the Veteran submitted additional evidence pertaining to his mental health symptoms and treatment. The evidence included Court documents, dated in September 2003, reflecting a diagnosis of PTSD, and a psychiatric evaluation report associated with the Court's Order for Treatment reflecting a probable diagnosis of psychotic disorder, not otherwise specified, and possible schizophrenia, paranoid type. It was noted that he had been before the Court a few months earlier on a "danger to self-petition," that he had been living with his mother for the past year, since separation from service, and that he had been increasingly agitated, verbally aggressive, and suicidal. Although the RO considered the Veteran's October 2003 correspondence as a new claim, these records were associated with the claims file within one year of notice of the September 2003 rating decision and are new and material evidence, particularly because the denial of service connection was based on an absence of a diagnosis of PTSD, and precluded the September 2003 rating decision from becoming final. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the evidence is new and material, and is considered as having been filed in connection with the October 2002 claim. Although the issue of entitlement to service connection for schizoaffective disorder was the subject of a separate denial in a July 2009 rating decision, in view of the pending claim and Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the issue as reflected on the title page. FINDING OF FACT The Veteran has schizophrenia that manifested to a compensable degree within one year of his separation from active military service and there is no affirmative evidence that this chronic disease is not service connected. CONCLUSION OF LAW The criteria for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.384, 4.130, Diagnostic Code 9204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, for certain chronic diseases, such as psychoses, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a prescribed period following discharge from service; the presumptive period for psychoses is one year. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Schizophrenia is a psychosis for these purposes. See 38 C.F.R. § 3.384 (2012). Regulations also provide that 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The application of the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). Under such circumstances, in order to rebut the presumption of soundness, VA is required to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. The examination report at service entrance in August 2000 is unavailable, and although service treatment records reflect the Veteran's report of having been diagnosed with PTSD prior to service, a psychiatric disorder was not noted at service entrance. Rather, a September 2000 Medical Screening to determine suitability for an overseas, remote duty, or operational assignment notes no "Mental health or behavior conditions (e.g., depression, adjustment/personality disorder, ADD/ADHD)." Equally important, other than a differential diagnosis of PTSD ("R/O Posttraumatic Stress Disorder") in an October 2001 service treatment record, the service records are negative for a diagnosis of a psychiatric disability. Although complaints of psychiatric symptoms were noted during service, the Veteran was consistently determined to be fit for duty, to include in October 2001, November 2001, and July 2002. Both a July 2002 service treatment record and his DD Form 214 reflect the reason for separation was due to a personality disorder, not a psychiatric disability. The Board notes that a personality disorder is not a disease within the meaning of applicable legislation for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Although post-service medical records note a history of psychiatric treatment prior to service entrance, to include a September 2003 private report indicating inpatient treatment for depression prior to service, and a May 2007 VA treatment reflecting a history of psychiatric symptoms since childhood, there is not both clear and unmistakable evidence that a psychiatric disability existed prior to service entrance and that a psychiatric disability was not aggravated during service. In fact, the July 2010 VA examiner stated that it is impossible to determine whether or not the Veteran's psychotic symptomatology was present prior to service entrance. Therefore, the presumption of soundness at service entrance is not rebutted, including for schizophrenia. Thus, this is a claim for direct service connection. See Gilbert, 26 Vet. App. at 48. With respect to direct service connection for a psychiatric disability, service treatment records include an October 2001 mental health evaluation report noting as follows: History of Present Illness: The patient reported that he wanted help because he was having "flashbacks" and reactions to loud noises where he was feeling out of control. He stated that at the age of 17, he was shot 6 times by a supposed friend who was thought to want to steal his car. The patient had joined the Navy because, "if I didn't do something, life wasn't worth living." The patient denied SI/HI today and denied ever making a suicide attempt in the past. He was told his maternal grandfather had committed suicide before the patient was born by jumping off a bridge. The patient had been in counseling on and off since the age of 8 to 18. The patient had grown up with a physically abusive stepfather who was an alcoholic and drug addict, who had been a pimp. The stepfather was currently in jail. He had been diagnosed bipolar and schizophrenic. The patient's mother had been in counseling off and on for 10 years in her attempts to deal with her relationship with her husband, and at one time had been on Prozac. For the last 6 months the patient endorsed poor sleep, sometimes sleeping too much, sometimes experiencing middle insomnia. He added that he could sleep "standing up," and would feel overwhelmingly tired at various times during the day. He was told that he snored. He stated that he ate well and was able to do his job. He sometimes had headaches, but he denied being in any physical pain today. His last drink was 2 weeks ago-9 beers. He had a time of heavier drinking when he was 17, drinking daily, getting drunk 2x/wk, drinking 11 cans of beer. He denied passing out or blackouts. He had 3 DUIs, and all were dismissed, but the last DUI was reduced to "implied consent." He denied smoking or chewing. He denied any NJP's and reported his last eval as 3.8. It was noted that he decided to join the military around the time he had been shot and received his 3rd DUI, and that the Navy recruiter had taken the time to help him. The impression entered is as follows: Diagnostic Assessment: Axis I: R/O Posttraumatic Stress Disorder Alcohol Abuse Polysubstance Abuse in Sustained Full Remission per history Axis II: No Diagnosis-Antisocial Traits Axis III: Headaches, R/O Sleep-related breathing disorder Axis IV: Victim of violent crime, chaotic childhood, ACA Axis V: GAF = 58 It was determined that he was fit for duty and responsible for his behavior. Personnel records reflect a Captain's Mast in November 2001 for failure to obey orders or regulations and unauthorized absence. The penalty imposed was 7 days of extra duty and limitation to the ship. A November 2001 mental health service treatment record notes that the Veteran wanted to complete his enlistment, hoped to work in the medical department, and would be attending stress management classes after Thanksgiving. It was noted that he denied neurovegetative symptoms, as well as suicidal and homicidal ideation, and mental status was noted to be unchanged. The assessments were occupational problem - resolving, and alcohol abuse in early partial remission. Exposure to routine military stressors was noted, and a Global Assessment of Functioning (GAF) score of 65 was entered. It was determined that he was fit for duty and responsible for his behavior. A July 2002 mental health service treatment record reflects complaints of increased unhappiness-"depression," regarding being on the ship. Complaints about his work duty were noted to include not ever being good enough, being told he was worthless, being unable to get out of deck duty, and being unable to go to "A" school because of his disciplinary history. It was noted that he expressed increased concern about his increasing depression and frustration. On mental status examination, he was noted to be neat and cooperative with unimpaired speech. His mood was reported to be down and tense, and affect was noted to be slightly constricted - mildly dysphoric and tense. Thought process was logical and linear, and impulse control and insight and judgment were noted to be intact. The impression was occupational problems/rule out personality disorder with antisocial and narcissistic features. It was determined that he was fit for duty and responsible for his behavior. Another service treatment record dated later in the month of July 2002 reflects a recent period of unauthorized absence for several days. It was noted that upon return, he had missed his ship's movement and stated he would 'hang' himself if he returned to his ship. A history of having been harassed by others on the ship was detailed as follows: They knew he was sensitive about guns, and that he feared them. One time while he was in berthing, a shipmate on the watch pointed his gun at the patient. Incidents similar to the gun pointing one, had occurred frequently. During another incident, when the patient was in his rack, several shipmates locked him into his rack, causing him to be fearful and claustrophobic. On examination he was noted to be neatly groomed and cooperative. His speech was unimpaired. His mood was distressed, and affect was noted to be somewhat constricted - mildly dysphoric and tense. It was reported that although he denied suicidal and homicidal ideation, he indicated that he was suicidal in the context of remaining on the ship. His thought process was logical, linear, and goal directed. The diagnoses were occupational problem and alcohol abuse in early partial remission. A GAF score of 48 was entered. It was determined that he manifested a long-standing disorder of character of such severity as to interfere with serving adequately in the Navy. Separation for unsuitability was recommended. An August 2002 service treatment record notes that he was doing well, working as a dorm cleaner, and had received an outstanding on his uniform inspection. On examination he was noted to be neatly groomed and cooperative. His speech was unimpaired. His mood was relaxed, affect was full range and appropriate to thought content. He denied any neurovegetative symptoms while on shore, other than being a 'little tired' in the context of wanting to get out of the Navy. It was noted that although he denied being suicidal or homicidal, he remained convinced that he would become suicidal in the context of remaining on the ship. His thought process was logical, linear, and goal directed. Impulse control, insight and judgment were noted to be adequate. Separation for unsuitability was recommended. Although the examination report at separation in August 2002 is unavailable, on an August 2002 dental health questionnaire at separation he indicated that he had or had had nervousness. A July 2003 VA treatment record reflects a diagnosis of schizophreniform disorder. As noted previously, psychoses manifesting to a compensable degree within one year after separation are included as presumptive chronic diseases. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Also as noted previously, the September 2003 Court Order for Treatment reflects a diagnosis of probable psychotic disorder, not otherwise specified, and possible schizophrenia, paranoid type. It was noted that he had been before the Court a few months earlier on a "danger to self-petition," that he had been living with his mother for the past year, since separation from service, and that he had been increasingly agitated, verbally aggressive, and suicidal. Although the Veteran's psychiatric symptoms have been variously diagnosed, to include as substance-induced psychosis, an August 2003 VA examination report notes similarity between the symptoms of methamphetamine intoxication and paranoid schizophrenia. The examiner concluded that although the Veteran could not be properly evaluated due to his intoxication and amphetamine use, he may have a combination of schizophrenia and methamphetamine-induced psychosis. Consistent with the conclusion reached by the August 2003 VA examiner are VA treatment records. For example, a May 2009 VA treatment record notes a history of psychosis, variously diagnosed as drug-related versus schizophrenia. Significantly, inpatient records, dated in July 2009, reflect the Veteran's history of being delusional even in the absence of substances, and note the following: This young male is by definition a Schizophrenic. Since he has a component of hypomania, hypereligiosity and at times depression, is seen as Schizoaffective bipolar type but his could be due to the inte[]nse use of substances in the past with organic damaging effect on his neurones, rather than a bipolarity standing by itself. The need to treat the aff[]ective component seems to necessitate this classification. The Axis I diagnoses entered were schizophrenia, chronic, undifferentiated, and mood disorder due to substances. VA inpatient records in February 2007 note the Veteran's mother believed the psychiatric problems started when he had a "break" during service. A July 2007 VA treatment record shows a diagnosis of schizophrenia, and a Social Security Administration determination reflects disability due to schizophrenia. The July 2010 VA examination report notes the Veteran meets the criteria for a diagnosis of a psychotic disorder, not otherwise specified, and although the examiner opined that the psychotic disorder is not related to service, the examiner also stated that it is impossible to determine whether or not the Veteran's psychotic symptomatology was present prior to service entrance, the competent medical evidence establishes that schizophrenia manifested within the initial year after separation. In summary, a psychiatric disorder was not noted at service entrance and there is not clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. The evidence shows that the Veteran was diagnosed with a psychosis in July 2003, which was within one year of his separation from active military service. Additionally, the psychosis was manifest to a compensable degree at that time as the disorder at least required medication. See, e.g., 38 C.F.R. § 4.130 (Diagnostic Code 9204) (2012). Moreover, there is no affirmative evidence that this chronic disease is not service connected. Accordingly, service connection is warranted for a psychosis under the presumptive service connection provisions for chronic diseases. See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Given the varying diagnoses throughout the record, the Board finds that the service-connected disorder is best characterized as schizophrenia. ORDER Service connection for schizophrenia is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs