Citation Nr: 1312265 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 05-17 417A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to November 1990. She served with the National Guard from September 1991 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for schizophrenia. This case was previously before the Board in April 2008, January 2011 and again in October 2012, and was remanded on each occasion for additional development of the record and/or to ensure due process. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder 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. FINDING OF FACT There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has an acquired psychiatric disability that is etiologically related to military service, or that schizophrenia was present within one year of her separation from service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include schizophrenia, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in numerous letters, including in September 2002, March 2004, May 2008, February 2011 and August 2012. The claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. The Board notes the service treatment records are not in the claims folder, and only a few personnel records have been obtained. VA has made numerous attempts to obtain the service treatment records. In March 2004, the VA made a formal determination the Veteran's service records were unavailable, and listed the efforts they had made to retrieve those records. An August 2012 determination also listed the actions that had been taken to procure the service treatment records as well as other records. In cases such as these, the VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. The Veteran's representative argued that sufficient efforts have not been made to obtain those records; however, the Board finds that sufficient efforts have been made. VA contacted the Veteran numerous times, most recently in January 2013, to request that she complete authorization forms to obtain pertinent records. The Veteran did not respond. Information and evidence that have been associated with the claims file include some service personnel records, Social Security Administration records, and private and VA medical records. The Board acknowledges the Veteran has not been afforded a VA medical examination to obtain an opinion regarding the etiology of any psychiatric disorder. The Board points out VA examinations have been scheduled on two occasions, and the Veteran failed to report for either one. Following her failure to report for a VA examination in May 2011, she was contacted by a veterans service officer (VSO) in June 2011. The Veteran stated she would not go to the VA for any examination since she had her own physician. When it was explained to her that a VA examination was required, she asserted she did not know where the Cleveland VA medical center was and that it was too far to travel. The VSO then asked her if there was another VA medical center she would prefer to go to. The Veteran reiterated that she would not go to the VA for any examination. The Board also notes that a VA examination was scheduled for December 2012. The VA sent the Veteran a letter that month advising her of the date of the examination, but she again failed to report for the examination. Since she failed to provide good cause for such failure to report, the Board will adjudicate the claim based on the evidence of record. See 38 C.F.R. § 3.655 (2012). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Essentially, all available evidence that could substantiate the claim has been obtained. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Psychoses is included in 38 C.F.R. § 3.309(a). Where a veteran served 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In a May 1992 memorandum from the Chief, Personnel Actions of the Arizona Army National Guard, it was indicated the Veteran was suspected of fraudulent entry by deliberate misrepresentation, omission and concealment of a bar to reenlistment from prior military service. A report of separation and record of service document shows the Veteran was discharged from the National Guard due to erroneous enlistment. The Veteran was admitted to a private facility in May 1993 and reported she felt desperate that day because she had no money or food to care for her children. She stated she had been an inpatient for two weeks at a hospital in Toledo, Ohio. She claimed the reason for that hospitalization was to prove her sanity so she could gain custody of her children. She also alleged she was evaluated in service. The diagnosis on discharge was schizo-affective disorder, bipolar type. The Veteran was hospitalized at the Arizona State Hospital from June to November 1993. The hospital records indicate Child Protective Services had been involved with her since November 1990. She related she was paranoid about her co-workers in the Army, and maintained that one sergeant winked at her and tried to get her in the corner. She also alleged she had been raped many times since she was 13 years old. The diagnosis was schizoaffective disorder, bipolar type. Social Security Administration records show the Veteran reported her disabling condition was "mental deficiency, schizophrenia phobia" and was a lifetime illness. VA outpatient treatment records disclose that in April 1999, the Veteran reported her condition started with a psychosis in 1992. It was also noted she had been hospitalized for two weeks in 1984 and this might have been related to a divorce. The Veteran was seen by a private psychologist in March 2000. She again referred to being hospitalized for two weeks in Toledo and said she was in shock from her divorce. She asserted she saw two psychiatrists while in service. The Veteran asserts service connection is warranted for a psychiatric disability. She claims that while she was in service, two of her superiors sent her to a psychiatrist for treatment. She insists this happened once in Germany, sometime between 1987 and 1988, and again in 1990 when she was stationed at the Aberdeen Proving Grounds. She alleges that on both occasions, the psychiatrist said she could not work due to her personality disorder. The Board acknowledges there is some indication in the claims folder that the Veteran had psychiatric problems prior to service. She has also maintained she received psychiatric treatment twice during her period of active duty. The Board points out that the initial indication of any treatment following service was in May 1993, more than two years after her discharge from service. At that time, she provided conflicting information concerning her past psychiatric history. She both denied any past psychiatric history and referred to treatment in 1984. It is significant to point out, however, that she made no mention of any treatment in service. The Board also notes the Veteran has failed to report for two VA psychiatric examinations which were ordered for the purpose of obtaining a medical opinion as to the etiology of her disability. There is simply no competent evidence of record linking her psychiatric disability to service, or that schizophrenia was demonstrated within one year of her separation from service. The Board acknowledges the assertions of the Veteran that she has a psychiatric disability, to include schizophrenia, that is related to service. She is competent to report she has psychiatric problems. Lay persons are competent to provide opinions on some medical issues; however, the specific issue in this case, a psychiatric disability, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). There is no competent evidence linking any current psychiatric disability to service, or that it was manifested within one year of her discharge from service. Under the circumstances, the Board concludes the medical findings of record are of greater probative value than the Veteran's allegations regarding the onset of her psychiatric disability. The Board finds, accordingly, that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include schizophrenia. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an acquired psychiatric disability, to include schizophrenia is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs