Citation Nr: 1312052 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 08-09 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a psychiatric disability, diagnosed as schizophrenia. 2. Whether the Veteran is competent for Department of Veterans Affairs (VA) benefits purposes. REPRESENTATION Appellant represented by: Michael Miskowiec, Attorney WITNESS AT HEARING ON APPEAL Appellant's Mother ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from April 1986 to April 1992. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which denied service connection for paranoid schizophrenia and posttraumatic stress disorder (PTSD). Although the Veteran's claim has previously been identified and developed as two separate claims of entitlement to service connection for PTSD and for schizophrenia, based on the description of his symptoms the medical evidence of record overwhelmingly establishes that his psychiatric disability is most accurately diagnosed as paranoid schizophrenia. A claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issue on appeal to most accurately reflect the diagnoses of record. The case was previously before the Board in March 2009, when it was remanded for additional development. The requested development has been completed and the case was returned to the Board. In April 2011, the Board rendered a decision on the Veteran's claim. In June 2012 the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the case. In August 2008, the Veteran's mother testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claims folder. The issue of whether the Veteran is competent for VA benefits purposes is raised by the record and is inextricably intertwined with the issue of service connection and the payment of benefits derived therefrom. Accordingly this issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service treatment records do not reveal any complaints of, treatment for, or diagnosis of schizophrenia, or any other psychiatric disorder during service. 2. The Veteran has a current diagnosis of schizophrenia. 3. The Veteran's mother reports a history of bizarre behavior dating back to the Veteran's separation from service. 4. A copy of a letter mailed from the Veteran to his mother during service reveals some delusional content. 5. A forensic psychiatric medical opinion indicates that the Veteran's schizophrenia became manifest during active service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have been met. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1131, 1137 (West 2002& Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, 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 order to establish service connection for a claimed disorder, the following must be shown: (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); see also Pond v. West, 12 Vet App. 341, 346 (1999). Psychoses may be presumed to have been incurred during active military service if the psychosis becomes manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder not otherwise specified; schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and, substance-induced psychotic disorder. 38 C.F.R. §3.384. Following the point at which it is determined that all relevant evidence has been obtained, it is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429, 433 (1995); see Elkins v. Gober, 229 F. 3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997) (and cases cited therein); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley v. Brown, 5 Vet. App. 155, 161 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995); see also Pond v. West, 12 Vet. App. 341, 345 (2000). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's mother and representative contend that he currently has a psychiatric disorder, predominantly diagnosed as schizophrenia, which was first manifest either in service or within one year of his discharge from service. The Veteran has provided no written contentions or testimony on his own behalf during the course of this appeal. VA initially scheduled a psychiatric examination for the Veteran in August 2007, but his mother cancelled the examination, indicating that his mental illness was too severe and prevented him from leaving his home to attend the examination. In compliance with the Board's March 2009 remand, correspondence was sent to the Veteran in May 2009 again notifying him that a VA examination was scheduled for June 2009. Later that same month, the Veteran's representative wrote, again asserting that the Veteran's severe schizophrenia prevented him from attending the VA examination. The representative requested VA examine the Veteran at his home. VA regulations do not provide for psychiatric examinations administered at the homes of claimants. Unfortunately, VA was unable to accommodate the Veteran's representative and mother's request to do so. The Board is cognizant and sympathetic of his mother's contentions that his schizophrenia prevents the Veteran from attending such examinations. However, his failure to cooperate with VA has made it impossible to obtain the evidence. If a Veteran desires help with his claim, he must cooperate with VA's efforts to assist him, to include reporting for scheduled examinations. See 38 U.S.C.A. §§ 5103A, 5107; also see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[t]he duty to assist is not always a one-way street."). When a claimant, without good cause, fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. Moreover, the Board notes that the Veteran did report for VA compensation examinations in July 1992 and May 2000, dates later than the date his mother alleges was the onset of his psychiatric disorder. Therefore, the Board is now compelled to adjudicate the Veteran's claim based on the existing record. See 38 C.F.R. § 3.655. Service treatment records do not reveal any treatment for, or diagnosis of, any psychiatric disorder during active service. Separation examination of the Veteran was conducted in March 1992. He reported a history of frequent trouble sleeping, depression or excessive worry and nervous trouble. However, the accompanying separation examination report shows that clinical psychiatric examination was normal. In March 1993 an examination of the Veteran was conducted with respect to reserve affiliation; on the report of medical history he again reported a history of nervous trouble, but it was described as tension and stress and was not considered disabling. Likewise, there is no evidence that the Veteran sought treatment for such complaints at any time during his service. There is no evidence indicating in-service treatment for any diagnosed psychiatric disorder or within one year of the Veteran's discharge from service. In May 2000, a VA Persian Gulf Registry examination of the Veteran was conducted. This examination report does not indicate the presence of any psychiatric symptoms. However, in May 2000 private psychiatric evaluation of the Veteran was conducted with respect to referral for involuntary psychiatric hospitalization. The examination report reveals that the Veteran was exhibiting delusional behavior. He had become obsessed with a female neighbor and was accused of stalking her. He exhibited the delusional belief that she was his long lost twin sister. The indicated diagnosis was psychotic disorder, not otherwise specified. June 2000, hospital records reveal inpatient treatment with a diagnosis of delusional disorder. The Veteran exhibited the same delusional thought pattern with respect to his belief that he had a "long lost" twin sister that his mother kept secret from him. A February 2003 psychiatric assessment indicates a diagnosis of psychosis with differential diagnoses of bipolar disorder and schizophrenia. Private medical records reveal that the Veteran was hospitalized for inpatient psychiatric treatment from October to November 2006 with a diagnosis of paranoid schizophrenia. The discharge summary indicates that the Veteran's first psychotic break was in 1991 during service, but this was reported by his mother. The history of his symptoms was reported as his becoming fixated on a girl he had not seen since elementary school. Initially, the delusions were reported as her being his twin sister, and then developed into her being his long lost love. Records from the Social Security Administration, confirm the diagnosis of schizophrenia, and document a series of legal difficulties resulting from his delusional and obsessive symptoms. The Veteran's mother testified at a hearing before the undersigned. She testified that the Veteran's letters from Kuwait during service made no sense, and that that his best friend advised her that something was wrong with the Veteran as soon as he returned home. She further testified that the Veteran treated her differently shortly after his discharge and that he gradually exhibited more and more bizarre and paranoid behavior, often involving the police, 911 calls, and the previously mentioned woman that the Veteran had not seen since elementary school. Further, she provided a copy of a letter the Veteran wrote to her while he was still in service. This letter does show that the Veteran began to exhibit an unusual interest in the woman who he referred to as an "old school sweetheart that I've lost track of over the years . . ." Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Board acknowledges that the Veteran's mother is competent to give evidence about what she observed; i.e., that the Veteran's letters from Kuwait made no sense, and his change in behavior on separation from service that became increasingly bizarre and paranoid. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). In 2011, a private psychiatrist prepared a forensic psychiatry record review of the Veteran's service treatment records, the other medical evidence of record, the mother's statements, and review of copies of the letters written by the Veteran during service. After a full review, the psychiatrist indicated that the Veteran's current diagnosis was paranoid schizophrenia. Further, the report indicated, based on the mother's reports and the evidence contained in the letters posted during service, that the Veteran had schizophreniform disorder during service which subsequently developed into paranoid schizophrenia. The report specifically relied upon the delusional and obsessive thoughts expressed in the letter with respect to a woman that the Veteran had not seen since elementary school. The Veteran has a current diagnosis of paranoid schizophrenia. Contemporaneous medical diagnoses of a psychiatric disability date from 2000 which is eight years after separation from service. However, the Veteran's mother is competent to report that she observed the Veteran's delusional behavior upon his separation from service. Her testimony about the Veteran's delusional behavior is supported by the copy of the letter that he wrote to her while he was still in service. A psychiatrist has reviewed all this evidence and expressed the opinion that schizophreniform disorder first manifested during service and developed into the currently diagnosed paranoid schizophrenia. The preponderance of the evidence is not against the claim. Accordingly, service connection for a psychiatric disability, diagnosed as schizophrenia, is warranted. ORDER Service connection for a psychiatric disability, diagnosed as schizophrenia, is granted. REMAND The record contains a December 2011 state court order which appoints the Veteran's mother as his guardian/conservator because of the severe impairment resulting from his service-connected paranoid schizophrenia. With the grant of service connection, the issue of whether the Veteran is competent for VA benefits purposes is raised by the record and is inextricably intertwined with the issue of service connection granted above and the payment of benefits derived therefrom. Accordingly, the case is REMANDED for the following action: Provide the necessary notice and then adjudicate the issue of whether the Veteran is competent for VA benefits purposes, including whether appointment of a fiduciary is necessary. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs