Citation Nr: 1316623 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-35 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include generalized anxiety disorder, depression not otherwise specified (NOS), major depressive disorder, paranoid schizophrenia, schizoaffective disorder, and posttraumatic stress disorder (PTSD), including as due to military sexual trauma (MST). REPRESENTATION Veteran represented by: James G. Fauzone, Esq. ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the RO. Of preliminary importance, the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). VA is obligated to construe communications from the Veteran "in a liberal manner for purposes of determining whether they raise issues on appeal." Robinson v. Mansfield, 21 Vet. App. 545 (2009). The Veteran has claimed service connection for various psychiatric disorders since his discharge from active service, to include a nervous disorder, PTSD, and an acquired psychiatric disorder including anxiety disorder, depression and paranoid schizophrenia. Hence, the Board will adjudicate the Veteran's claim of service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, depression NOS, major depressive disorder, paranoid schizophrenia, schizoaffective disorder, and PTSD due to MST, accordingly. The Veteran indicated in a VA Form 21-4138, Statement in Support of Claim, received in March 2010, that he wished to withdraw his separate claim of service connection for PTSD due to MST. However, as the issue has been recharacterized to include any and all psychopathology present, the Board finds that withdrawal of this issue is unnecessary at this time. The Board remanded the case to the RO in February 2012 for additional development of the record. In March 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). After review of all reports, the Board finds the VA examination reports and the VHA opinion in compliance with 38 C.F.R. § 3.159(c)(4), that is, sufficient competent medical evidence to make a fully informed decision on the claim. The Veteran was provided a copy of the VHA opinion and afforded the opportunity to submit additional evidence and argument. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT The currently demonstrated schizoaffective disorder is shown as likely as not to have had its clinical onset during the Veteran's period of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a schizoaffective disorder is due to disease or injury that was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1113, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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). To the extent that the action take hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. Merits of the claim Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain specific conditions are considered chronic diseases under VA Law. These include psychoses. 38 U.S.C.A. § 1101; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Where a chronic diseases is shown to be chronic in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Where a Veteran served continuously for ninety (90) or more days during a period of war or peacetime service after December 31, 1946, and if psychosis is manifest to a compensable degree within one year from the date of the Veteran's 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). To establish service connection for a chronic disease, it is not required that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in light of subsequent developments it may gain considerable significance. 38 C.F.R. 3.307(c). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) apply to psychoses. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). The presumption of soundness is a presumption that the Veteran was in sound condition upon entrance into service, except as to defects, infirmities, or disorders noted at that time. See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). The presumption of soundness only attaches where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that demonstrates that the injury or disease preexisted service and that it was not aggravated by such service. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Post-service medical evidence/opinion can rebut the presumption of soundness. See Harris v. West, 203 F. 3d. 1347 (Fed. Cir. 2000). The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. See 38 U.S.C.A. § 1111; 38 C.F.R. 3.304(b); Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's February 1972 service entrance examination showed a normal psychiatric evaluation. The Veteran denied having or having had any psychiatric symptoms upon entry into service. In August 1972, the Veteran was admitted to the hospital for ethanol abuse and was diagnosed with depression secondary to problems in adjustment within the marital relationship and characterological lack of impulse control. A December 1972 clinical record from base psychiatry indicated findings of significant psychomotor retardation, suicidal ideation, with affectual retardation and depression. The report references a story of a tumultuous marriage with a wife who had a paranoid break, and a history of authority problems as a juvenile. The practitioner noted the Veteran had made a poor service adjustment and diagnosed him with immature personality, existing prior to service. A January 1973 Medical Board Report reflected a primary diagnosis of immature personality disorder manifested by impulsivity, extremely poor judgment, emotional outbursts, and impulsive behavior under relatively minor personal stress. The Medical Board determined that the Veteran's condition existed prior to enlistment and was not aggravated by service. The VA treatment records, dating from 2007, include findings of generalized anxiety disorder, depressive disorder NOS, chronic schizoaffective disorder, major depressive disorder versus schizoaffective disorder, alcohol dependence, and PTSD. Significantly, a March 2008 VA mental health progress note recorded the Veteran's statements that he was abused and molested during his childhood and raped during his military service. The Veteran reported that his wife knew about the military rape and was prepared to join him for joint therapy sessions. The Veteran underwent a VA examination in October 2012. The examiner diagnosed schizoaffective disorder and declined to make a diagnosis of PTSD. The examiner opined as follows: Whether or not the Veteran's significant psychiatric troubles in the military reflected an aggravation of his pre-existing condition or acute reaction to MST cannot be concluded without resorting to speculation. It must be noted that there would likely have been substantial dysfunction regardless of the claimed military trauma, given the Veteran's family history and documented pre-existing symptoms. The examiner stated that the Veteran had a pre-existing disorder, but did not provide any basis for that conclusion. Furthermore, the examiner concluded that "there would likely have been substantial dysfunction regardless of the claimed military trauma," but was unclear as to whether his military experience specifically, would have been a factor in this dysfunction. The RO obtained a VHA opinion in March 2013. The examiner opined that "it [might] be reasonably concluded that it [was] as least as likely as not that the Veteran's current schizoaffective disorder had its clinically evident onset during the Veteran's period of active service." The examiner also opined that the Veteran's PTSD diagnosis was less likely than not due to the alleged MST or other incident of service. On this record, the Board finds that the presumption of soundness under 38 U.S.C.A. § 1111 is not rebutted in this case. As noted, to rebut the presumption there first must be clear and unmistakable evidence that the claimed disability existed prior to service and then clear and unmistakable evidence that the disability was not aggravated by service. Although the Medical Examination Board determined that the disability existed prior to service, this is not clear and unmistakable evidence sufficient to rebut the presumption of soundness. Additionally, to the extent that the VA examiner opined that it was more likely than not that the Veteran's disorder began prior to service; this statement does not convey the requisite degree of medical certainty that would be necessary to rebut presumption of soundness on the basis of clear and unmistakable evidence. Moreover, the VHA examiner opined that the Veteran's schizoaffective disorder as likely as not had its onset during his period of service. To the extent that there is no clear and unmistakable evidence sufficient to rebut the presumption of soundness, the Veteran is presumed sound upon entry into service and the claim must be addressed on the basis of service incurrence. The Board has considered the entire record and finds the evidence to be in relative equipoise in showing that the current schizoaffective disorder as likely as not had its clinical onset during the Veteran's period of active service. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). ORDER Service connection for a schizoaffective disorder is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs