Citation Nr: 1314915 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 03-36 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder and schizophrenia, but excluding posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from March 1990 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The case was most recently before the Board in August 2012, at which time the claim was remanded to the RO via the Appeals Management Center (AMC) for additional development. In a January 2013 supplemental statement of the case, the AMC continued the denial of the claim. The case has now been returned to the Board for further appellate review. The Board notes that the medical evidence reflects multiple psychiatric diagnoses, to include major depressive disorder and schizophrenia. Thus, the issue on appeal has been broadly construed as encompassing any psychiatric disorder other than the PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that claims for service connection for one psychiatric disorder effectively encompass claims for service connection for all psychiatric disorders). In this regard, the Board also notes that the Veteran was previously granted service connection and assigned a 10 percent rating for PTSD. In granting the claim for service connection for schizophrenia in the decision below, the Board recognizes that all psychiatric disorders, with the exception of eating disorders, are evaluated pursuant to VA's General Rating Formula for Mental Disorders. Therefore, although the claim for service connection for schizophrenia is granted, he may receive a single evaluation that encompasses the overlapping symptoms of his psychiatric diagnoses. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("[T]wo defined diagnoses constitute the same disability for purposes of [38 C.F.R. §] 4.14 if they have overlapping symptomatology."). FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, schizophrenia had its onset in service or is otherwise etiologically related to his active service. CONCLUSION OF LAW Service connection for schizophrenia is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran presently seeks service connection for an acquired psychiatric disorder. He essentially attributes his current psychiatric disorder to his service in the Southwest Asia theater of operations. He also relates his disorder to an assault he suffered while on active duty. The Veteran maintains that his psychiatric symptoms had their onset in service, have persisted since separation and are manifestations of his currently diagnosed psychiatric condition. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition, certain chronic diseases, such as psychosis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Notably, the theory of continuity of symptomatology described above only applies to the chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Initially, the Board notes that the competent evidence confirms the Veteran's diagnosis of schizophrenia, as reflected in the November 2012 VA examination report. The medical evidence dated during the pendency of the claim also reflects relevant diagnoses of depression, obsessive compulsive disorder, paranoia, agoraphobia, and anxiety reaction. Therefore, the determinative question is whether any such diagnosis is related to the Veteran's military service (or manifested to a compensable degree within one year of service). The Veteran's service personnel and service treatment records have been reviewed. He has recognized service in Southwest Asia. While negative for a diagnosed psychiatric condition, his service treatment records reflect that he sustained injuries in January 1993 when he was assaulted by multiple individuals. An August 1994 VA general medical examination report reflects the Veteran's first post-service report of experiencing stress while on active duty; he reported experiencing gastrointestinal symptomatology in service which he believed was related to stress. Post-military private medical records show as early as June 2001 that the Veteran was prescribed medications used to treat his psychiatric symptoms. In June 2001, the Veteran was seen by private psychologist C.T.F., ED.D. for a psychiatric evaluation. The examination revealed diagnosed psychiatric conditions, to include PTSD associated with military experience and rule out other psychiatric disorders. In the examination report, C.T.F. noted that the Veteran was referred by his father because he had not been able to function effectively since leaving the military. The Veteran reported having a difficult time while in the military and indicated that he felt frustrated and fearful during that time. Reportedly, the Veteran's behavior prior to entering the military was quite different from his behavior following his discharge. The Veteran also reported a history of suicidal thoughts. Additional private treatment records reflect a diagnosis of paranoid schizophrenia as early as July 2001. VA treatment records also show treatment for the Veteran's psychiatric symptomatology. Treatment records dated in June 2001 include the Veteran's report of being unable to work since his return from Desert Storm and that he experienced a history of suicidal thoughts and depression since 1995. The examiner diagnosed a psychiatric condition based on the Veteran's reports of psychiatric symptoms related to his military service and the results of a clinical examination. The record includes a December 2002 private note from the Veteran's treating psychiatrist W.R., M.D. The note documents the Veteran's reported military history, including his report of an in-service assault and essentially experiencing panic and fear during his service in Desert Storm. The Veteran was noted to have had considerable psychiatric difficulties since his return from active duty service. A mental status examination revealed psychiatric diagnoses of PTSD related to military service and depression. In a subsequent October 2003 note, Dr. W.R. stated that the Veteran's major depression is directly related to his military service. He also noted that the Veteran had a severe case of combat related PTSD with resultant major depression with psychoses. Although the Veteran was scheduled for VA examinations on multiple occasions, he failed to report to the examinations. Thus, the Board directed in the August 2012 remand that the claims file be reviewed by an appropriate VA examiner in order to obtain a medical opinion as to the nature and etiology of the claimed psychiatric disorder. In a November 2012 examination report, a VA examiner stated that she spoke with the Veteran's mother, who had been unable to get the Veteran to come in for an examination. Thus, the opinion was provided based on a review of the Veteran's medical records and the claims file. In the November 2012 report, the examiner noted that the service treatment records documented the Veteran's injuries sustained from an in-service assault and his post-service reports of psychiatric symptoms. She also noted her review of C.T.F.'s June 2001 examination report which reflected a diagnosis of PTSD. She highlighted, however, that the symptoms listed in the report would not substantiate the PTSD diagnosis; the diagnosis was also based on a stressor that was not supported by the medical records or the reported history provided by the Veteran's mother. The examiner then highlighted a report from the Veteran's mother of his long history of mental illness that began following his return from Desert Storm and his history of an in-service assault. She noted that he was diagnosed with schizophrenia around that same time. Based on a review of the record, with specific attention given to Dr. C.T.F.'s examination report, the examiner concluded that the Veteran's appropriate diagnosis is schizophrenia paranoid type. Again, the examiner highlighted the reports in the medical records from the Veteran's mother of his psychiatric symptoms since his return from the military. The examiner stated that symptoms of schizophrenia often start in early adulthood. Given this, along with his mother's description of his post-military behavior, the examiner essentially opined that it was at least as likely as not that the process of the development schizophrenia may have begun while the Veteran was in the military. In addition to the evidence detailed above, numerous VA and private psychiatric treatment records and psychiatric assessments have been associated with the claims folder. While not highlighted above, the Board has considered and reviewed these records and finds them to be generally consistent with the evidence detailed above. Given the foregoing, the Board finds that the weight of the competent evidence of record shows that the Veteran's currently diagnosed schizophrenia was incurred in active service. The Board finds that the Veteran has provided a competent and credible account of in- and post-service psychiatric symptomatology. To the extent the Veteran statements merely provide an account of symptoms within his personal observation he is competent to detail such matters. See Jandreau, 492 F.3d at 1377. In this regard, the medical records document multiple lay statements from his family that provide a generally consistent account of his psychiatric symptomatology, to include first observing such symptoms after the Veteran's separation from service. What is more, the Veteran has provided a generally consistent account of psychiatric symptomatology to medical professionals solely for the purpose of obtaining and receiving medical care. Taken together, the Board finds these factors render the Veteran's account of psychiatric symptomatology to be competent, credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006); see also Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005) (It is the Board's responsibility, as fact-finder, to determine the credibility and weight to be given to the evidence). In any service connection claim, competent medical evidence and opinions are highly probative in establishing service connection. In the present matter, the only medical opinion of record addressing the Veteran's most recent diagnosis of schizophrenia weighs in favor of the claim. In the November 2012 VA examination report, the VA examiner clarified the nature of the Veteran's current psychiatric condition and identified his current diagnosis of as schizophrenia. The examiner then essentially opined that the Veteran's schizophrenia had its onset in service. This opinion evinces reliance on relevant medical expertise, a detailed consideration and analysis of the Veteran's competent and credible account of symptomatology, and relevant medical evidence to support the provided opinion; moreover, the opinion is generally consistent with all other evidence of record, making the opinion highly persuasive and probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). What is more, the VA examiner's opinion is also supported by the October 2003 opinion of Dr. W.R., who also related the Veteran's psychiatric condition to his military service. Accordingly, the Board finds the November 2012 VA opinion to provide highly probative evidence in favor of the service connection claim. In sum, the evidence of record confirms the Veteran's current diagnosis of schizophrenia paranoid type, which the evidence shows is the best characterization of the Veteran's acquired psychiatric disorder other than PTSD. The Veteran has provided a competent and credible account of psychiatric symptomatology, to include in-service onset and continuity since separation, which is generally consistent with the objective medical evidence of record. Further, the most probative medical opinion of record relates the currently diagnosed psychiatric condition to the Veteran's period of military service. At the least, a reasonable doubt is raised as to the timing of the clinical onset of the condition or whether it is otherwise related to service. When reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran's currently diagnosed schizophrenia disorder is as likely as not related to military service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In view of this finding, the Board concludes that service connection for schizophrenia is warranted and the claim is granted. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). ORDER Service connection for schizophrenia is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs