Citation Nr: 1313897 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 08-34 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression with psychosis, anxiety, and schizoaffective disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his friend ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active military service from May 1976 to August 1976 and March 1980 to March 1983. The Veteran also had service in the Army National Guard with a period of active duty for training (ACDUTRA) in June 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In connection with this appeal the Veteran, his spouse, and his friend testified at a hearing before the undersigned Veterans Law Judge at the RO in March 2011. A transcript of the hearing is associated with the claims file. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. In June 2011 and October 2012, the Board remanded this matter for additional development which has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The case has now been returned to the Board for appellate consideration. FINDING OF FACT The Veteran's schizoaffective disorder had its onset during active service. CONCLUSION OF LAW Schizoaffective disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's 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 light of the full grant of the benefit sought on appeal, any error in providing appropriate notice or assistance would be harmless error. Analysis In order to establish service connection for the claimed disorder, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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. The law provides that a veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). VA amended 38 C.F.R. § 3.304(b), effective May 4, 2005, to reflect a change in the interpretation of 38 U.S.C.A. § 1111 by the Federal Circuit and VA's General Counsel, and the regulation now states that to rebut the presumption of soundness, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). The Court has held that regulations concerning presumptive service connection, the presumption of soundness and the presumption of aggravation, were inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). Certain presumptions, including the presumption of soundness (38 U.S.C.A. § 1111; 38 C.F.R. § 3.304) and the presumption of aggravation (38 U.S.C.A. § 1153; 38 C.F.R. § 3.306), apply only to periods of active military service. At the outset, the Board notes that the evidence is unclear whether the Veteran's psychiatric disorder pre-existed service. However, the period of service at issue in this matter was during ACDUTRA. As noted above, the presumption of soundness and the presumption of aggravation are inapplicable to such a claim; therefore, the Board will not discuss whether the Veteran had a preexisting disorder. In this case, the record shows that the Veteran currently has an acquired psychiatric disability. Although both the December 2011 and November 2012 VA examiners indicated that the Veteran did not meet the criteria for a PTSD diagnosis under the DSM-IV, they both diagnosed him with schizoaffective disorder. Accordingly, Hickson element (1) is met. With respect to element (2), in-service disease or injury, the Board notes that numerous service treatment records dated in June 1994 reflect that the Veteran was on ACDTURA as there were constant references to "AT." In particular, one such record showed that the Veteran was relieved from ACDUTRA and returned to home station. Additionally, these records showed that the Veteran was extensively treated during this period and noted a diagnosis of acute psychosis for which he was ultimately discharged. Therefore, the Board finds that Hickson element (2) is satisfied. With respect to crucial Hickson element (3), medical nexus, the question presented, i.e., the relationship, if any, between the Veteran's currently diagnosed psychiatric disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Pursuant to the Board's October 2012 remand, the Veteran was provided an examination in November 2012. Upon review of the claims folder and evaluation of the Veteran, the examiner indicated agreement with the December 2011 VA examiner's findings that the Veteran's schizoaffective disorder likely had its onset during service. She indicated that the Veteran's disorder during service was not a brief reactive psychosis but was of a more prolonged psychotic disorder. The examiner also noted that the Veteran's service treatment records showed that he had a personality disorder, which she opined may have contributed to his psychosocial problems beginning in service. Therefore, inasmuch as the Veteran has been diagnosed with schizoaffective disorder, which medical professionals have linked to his in-service notations of psychosis, the Board finds that there is sufficient evidence to grant the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for schizoaffective disorder is granted. ORDER Service connection for schizoaffective disorder is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs