Citation Nr: 1314474 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 12-05 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case was subsequently RO in Seattle, Washington. In the Veteran's VA Form 9, Appeal to the Board of Veterans Appeals, he indicated that he wished to testify at a hearing before the Board by video conference at his local RO. In February 2013 correspondence from his attorney, the Veteran's request for a hearing was withdrawn due to terminal illness. As such, the Board finds that there is no hearing request pending at this time. See 38 C.F.R. § 20.702(e) (2012). The Board notes that additional medical evidence was submitted after the last supplemental statement of the case. However, in letters dated in January 2013 and February 2013, the Veteran's attorney waived the right to have this evidence reviewed in the first instance by the RO. Therefore, there is no prejudice in proceeding with adjudication of the case. The Board also notes that the Court of Appeals for Veterans Claims has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the claim on appeal has been characterized to include any psychiatric disorder. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has a current psychiatric disorder, diagnosed as schizophrenia, that is related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, a psychiatric disorder, diagnosed as schizophrenia, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2012). In the decision below, the Board has granted the Veteran's claim for a psychiatric disorder, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as psychoses, may be also be established on a presumptive basis by showing that it manifested itself to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, in the present case, there is no diagnosis or other documentation of psychosis within one year after discharge from active service or at any point after service. Accordingly, a presumption of service connection for psychosis is not for consideration. See 38 C.F.R. §§ 3.307 and 3.309(a). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a psychiatric disorder. While the Veteran's service treatment records are negative for psychiatric treatment or complaints, there is nonetheless evidence supporting the in-service incurrence of his current schizophrenia. The Veteran's entrance examination showed no psychiatric abnormalities, but at the time of his discharge in June 1975, he was not recommended for reenlistment. There are no intervening service treatment records addressing psychiatric symptomatology. However, in January 2010, a formal finding was issued by the RO indicating that only partial service treatment records were available. Given the absence of the full service treatment records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record contains four lay statements supporting the in-service incurrence of his condition. In January 2009, the Veteran's older brother, S.C. (initials used to protect privacy), submitted a letter stating that the Veteran earned A's and B's in high school and played all major sports. He participated on winning teams and was awarded junior varsity and varsity letters. S.C. noted that the Veteran was well-liked and well-adjusted prior to service, but afterwards, he indicated that the Veteran returned home introverted. It was hard to communicate with him, he could not hold a job, and relied on family members for help. S.C. stated that the Veteran spent ten years completing a two-year college program. He was slow in his thinking, was paranoid, and confused. He also had delusions and breakdowns, which required hospitalizations. In November 2012, the Veteran's younger brother, E.C., submitted a letter stating that, prior to service, the Veteran was well-liked and worked hard, as evidence by him mowing 25 to 30 lawns and other employment. He was a three-sport athlete and was an A/B student. E.C. reported thinking of the Veteran as his idol. However, after his return from service, the Veteran had a lot of difficulty communicating. He was a heavy drinker and drug-user and was obsessive. He could not keep a job. E.C. reported that his family was well known in the community and that the Veteran had a lot of good opportunities, but could not make use of them. E.C. got him a job, but on one night, the Veteran felt that everyone was talking about him, so walked out and set off all of the alarms off in the store. He could not finish anything he attempted. E.C. stated that his brother was "somebody you would expect to do more than what he's done with his life." In January 2013, the Veteran's step-mother submitted a letter stating that, as a teenager, the Veteran was hard working and a good athlete. She noted that he was a good student and wanted to go to college. She also described him as a sweet and loving brother who taught his younger siblings how to hunt and fish. She characterized him as a "dear peacemaker." She indicated that she and her husband encouraged him to volunteer for military service in hopes of helping him ensure the possibility of a college education. She stated that he returned from service as a different person and believed that her son was never the same again. In January 2013, J.C. submitted another letter. He stated that, while he was in the Navy, the Veteran told him that he felt his shipmates would kill him and feared that he would not make it out of the Navy. He felt singled out and persecuted often based on his sexuality. The Veteran appeared stressed out and told J.C. that he felt as if he was losing his mind. He reported seeing faces and thinking they were vampires with ghoulish faces and large canine teeth. He told his brother he would try to go out places, but would become frightened and return back to the ship. The Veteran also reported seeing a fly on one occasion that kept growing bigger and bigger until it blocked the hatch door on the ship. He was frightened and crawled back into his rack to sleep. The Veteran further reported that, while shipmates talked about feeling lost at sea, he felt that the ship would be all right because he was there. He reported to J.C. that he felt he was special and that God would protect them because of it. Finally, J.C. recounted an incident in which the family went on a vacation to Nevada. The Veteran believed that the Reno mob was after the family to kill them. As a result, they had to return home early from vacation. The Board finds that these statements are supportive of the in-service incurrence of the Veteran's disease. These lay witnesses are competent to describe the Veteran's symptoms prior to service and subsequent thereto. See, e.g., Ascherl v. Brown, 4 Vet. App. 371, 376 (1993) (holding lay witnesses are competent to provide testimony of no psychiatric symptoms before service, psychiatric symptoms in service, and symptoms after service sufficient to substantiate a claim of service connection.) The Board also finds the lay evidence credible. In determining whether statements submitted by lay individuals are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran's assertions and those of his family regarding his symptoms in service and thereafter have been consistent throughout the appeal. The fact that the Veteran was not recommended for reenlistment at the conclusion of service further supports the lay allegations. There is simply no reason to doubt the credibility of these statements other than a lack of contemporaneous medical evidence documenting such symptoms. However, the Board may not reject the credibility of lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). As such, the Board finds that the lay witnesses are both competent and credible regarding the Veteran's psychiatric symptomatology in service and thereafter. As for nexus evidence, the file contains the opinions of four different psychiatric specialists that support the claim. Significantly, there is no evidence to the contrary. In October 2008 and December 2008, a VA psychologist, Dr. W., attributed the Veteran's schizophrenia to service. In the October 2008 record, Dr. W. found, "though [the patient's] schizophrenic break occurred in 1989, it is likely that [the patient's] symptoms and problems are connected with stressors experienced while in the military, as [the patient] describes paranoid thought process while in the military, and has ongoing rumination and obsessive thought patterns about stabbings in general." Dr. W. found that, while it may be difficult to discern whether the Veteran's symptoms are better associated with a diagnosis of posttraumatic stress disorder (PTSD) versus schizophrenia, schizophrenia was ultimately identified as the diagnosis. The Veteran's repeated thoughts associated with stressful experiences were primarily associated with his disturbed thought processes about stabbing others. His symptoms of avoidance were also likely associated with a history of paranoia and schizophrenia. Dr. W. concluded that there was a "likely connection between the Veteran's schizophrenia and stressors experienced while in the military. This includes [the patient's] descriptions of ordered time off while in the military due to 'nervous breakdown,' as well as persistent rumination and thoughts related to stabbings." In December 2008, Dr. W. found that the Veteran's examples of problems suffered in the military were consistent with schizophrenia originating while in service. Those problems included angry outbursts, negative thought rumination about "not being honorable," grandiose thinking, and paranoid ideas. The Veteran also described a specific example of referential illusion of overinterpreting meanings in different actions, such as believing that there were some hidden signals occurring when people would rub their fingers under their noses. In February 2010, a VA chief of mental health, Dr. J., diagnosed the Veteran with chronic paranoid schizophrenia and determined that it was "as likely as not that the current symptoms are directly related to his active tour of duty." Those symptoms included intrusive thoughts of stabbings, irritability, anger, a fear of riding on buses, and ideas of reference including a belief that he served with David Eisenhower, the son of General Eisenhower. In May 2011, a former Army psychiatrist and current Board certified private psychiatrist, Dr. T., diagnosed the Veteran with schizophrenia and determined that the Veteran's "psychological symptoms started while on active duty in the United States Navy. It is my opinion that the Veteran's psychotic illness had its onset in service. I based this opinion on my examination of the Veteran and my experience as a military physician." Dr. T. stated that he treated numerous young men like the Veteran in service and was involved in medical boards of individuals with similar conditions. He also made line of duty determinations. His experience found that schizophrenia normally has its onset during a transition period in a person's life, such as the rigors of military service. He stated that one of the key indications regarding onset of schizophrenia is the type of obsessions experienced. Dr. T. noted that it is normal for a patient's life-long obsessions to involve events that occurred at the onset of the disease. In this case, the Veteran's obsessions involving stabbings were a "clear indication" that the onset of his disease was during his military service. In the report, Dr. T. indicated that he had conducted a formal psychiatric evaluation, reviewed the claims file, and conducted a personal interview in reaching his conclusion. In November 2012, a private psychologist, Dr. M., also diagnosed the Veteran with schizophrenia and determined that the "record is conclusive regarding the onset of [the Veteran's] schizophrenia-that it began during the time he was on active duty; that the symptoms he was experiencing during active duty are equivalent to those he experiences today; and, that because of his schizophrenia, he has had total occupational and social impairments." Dr. M. indicated that, in reaching this conclusion, he had carefully reviewed the entire claims file. As noted above, there is no opinion of record that weighs against the claim. Further, the Board notes that a medical opinion formed on the basis of the Veteran's reported medical history cannot be rejected without the Board first finding that the Veteran's allegations are not credible. Coburn v. Nicholson, 19 Vet. App. 427, 432 (2005); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding the Board cannot determine that a Veteran's statements lack credibility merely based on a lack of such documentation in the service treatment records). Again, the Board finds no reason here to doubt the credibility of the statements made by the Veteran and his family. In light of the foregoing, the Board finds that the evidence is at least in equipoise to show that the Veteran has schizophrenia that is related to his period of active service. Accordingly, entitlement to service connection for schizophrenia is warranted. The Board acknowledges that the Veteran has been intermittently diagnosed with other psychiatric disorders, including posttraumatic stress disorder (PTSD), depression, attention deficit disorder, post organic delusional disorder, dysthymia, bipolar disorder, and anxiety. However, the benefit sought on appeal is granted in a manner consistent with the fact that the preponderance of the evidence shows that the proper diagnosis for the Veteran's current psychiatric disorder is schizophrenia. For example, the October 2008 and December 2008 VA psychologist considered a diagnosis of PTSD, but explained why such a diagnosis is not appropriate. Each of the above providers instead diagnosed the Veteran with schizophrenia that they believed was related to his military service. ORDER Service connection for schizophrenia is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs