Citation Nr: 1318705 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 07-37 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES Entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD) and schizoaffective disorder. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from August 1988 to August 1992. This appeal comes to the Board of Veterans' Appeals (Board) from two rating decisions dated June 2006 and November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Board notes that when a veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for PTSD and schizoaffective disorder as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In a July 2011 decision the Board remanded the issue of service connection for an acquired psychiatric disability, to include PTSD, in order to obtain the Veteran's records from the Social Security Administration (SSA). These records were obtained and associated with the claims file, and as such the Board finds the remand orders were complied with and adjudication may proceed. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that although the Veteran was previously represented by a private attorney and a service organization during the period on appeal, both previous representatives have withdrawn their representation and the Veteran is currently unrepresented. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The weight of the evidence establishes that the Veteran currently has an acquired psychiatric condition of schizoaffective disorder which was aggravated by his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric condition, to include schizoaffective disorder, have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for an acquired psychiatric condition, to include PTSD and schizoaffective disorder. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes the Veteran's claim for service connection for a schizoaffective disorder was previously denied in a January 2008 rating decision. The Veteran did not file new evidence or a notice of disagreement within one year and the decision is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. However, at the time of the determination the RO had only a portion of the Veteran's service treatment records. Since that time, the claims file contains a more complete copy of the Veteran's service treatment records. Therefore, new and material evidence is not required, and the Board will conduct a de novo review of the Veteran's claim. 38 C.F.R. § 3.156(c). Service treatment records were reviewed and do not establish the Veteran received any psychiatric treatment during military service. At his April 1988 enlistment physical the examiner indicated the Veteran's psychiatric condition was normal, and assigned the Veteran P-1 on the PULHES scale. Because no psychiatric condition was noted on the entrance examination the Board finds the presumption of soundness applies. 38 U.S.C.A. §§ 1111, 1132. The Veteran was also found to have normal psychiatric condition at his August 1992 separation physical. Service treatment records do contain evidence of alcohol abuse by the Veteran during military service. In May 1989 the Veteran was disciplined for drunk and disorderly conducted of a nature to bring discredit to the armed forces. In August 1990 he was accepted into a residential alcohol treatment facility during his active military duty. Under VA regulations in order for the presumption of soundness to be rebutted the record must contain clear and convincing evidence both that the condition pre-existed his military service and was not aggravated by his military service. 38 U.S.C.A. §§ 1111, 1132; Wagner v. Principi, 270 F.3d 1089, 1096 (2004). As will be discussed below, the Board finds that while the record contains clear and convincing evidence that his schizoaffective disorder pre-dated his military service, the weight of the evidence does not establish by a clear and convincing standard that his condition was not aggravated by his military service. Despite the lack of evidence of a psychiatric condition in the Veteran's service treatment records, throughout the period on appeal the Veteran has consistently reported experiencing symptoms of schizoaffective disorder, including auditory and visual hallucinations, since he was approximately 12 or 13 years old. The Veteran has consistently reported this history of his condition both to the VA and to physicians during the course of treatment. For example in his October 2011 written statement the Veteran asserted he had been suffering from schizoaffective disorder since his teens. Similarly, in his October 2005 psychology assessment at a VA facility the Veteran reported hearing voices since he was 13. Additionally, the record contains the August 2006 written statement of a childhood friend of the Veteran's asserting the Veteran appeared to experience audio and visual hallucinations during high school. As such, despite the presumption of soundness the Board finds there is clear and unmistakable evidence, including the Veteran's own consistent admissions, that his current psychiatric condition pre-dated his military service. The Board will now turn to a discussion of whether the Veteran's condition was aggravated by his military service. The Board notes that the record establishes the Veteran served at least part of his active military duty in a submarine. Several years after his military service, in October 2005, the Veteran was assessed by a VA psychologist. The Veteran reported hearing voices since he was 13 and he continued to hear these voices during his service in the Navy. The Veteran reported he started drinking heavily when the voices got worse. For example, he described hearing voices telling him white people wanted to kill the Indians. He reported also getting more upset when he observed a friend kill himself while in the Navy. The Veteran reported he was given psychiatric medication for the first time at the beginning of this year and reported the voices are less now, but are not gone. The Veteran reported last hearing the voices three days ago. The psychiatrist noted the Veteran had psychosis which clearly seemed to have been present prior to the Veteran's alcohol and meth use after service. She opined the Veteran had schizoaffective disorder and alcohol dependency, and ruled out PTSD due to seeing his friend shoot himself in the navy. The medical evidence of record during the period on appeals continues to reflect the Veteran had a current psychiatric disorder. In 2006, the Veteran attended a weekly PTSD support group lead by a VA psychologist. In July 2006 this psychologist submitted a written statement in which she opined the Veteran was diagnosed with schizophrenia a "long before" his time in the Navy, but despite his condition he was found fit for service in 1988. The psychologist continued: "It is my clinical opinion that his military service greatly exacerbated his schizophrenia." She explained before military service he was functional, although impaired, and was able to graduate from high school and work summer job as a records clerk. She also opined the Veteran had PTSD from several traumatic events in his life, but most of all from witnessing suicide during service. As such, the Board finds this letter provides evidence is support of the Veteran's claim for service connection. The record also includes the medical opinion of a second VA physician who opined the Veteran's current condition was related to his military service. In January 2011 this physician opined the Veteran had schizoaffective disorder. He also opined the Veteran's condition pre-existed his military service, but was aggravated by his active duty service in the Navy due to the Veteran's prolonged confinement in submarine during service. In June 2011 this physician again opined the Veteran currently had schizoaffective disorder which was aggravated by his military service, providing additional probative evidence in support of the Veteran's claim. As such, the Board finds the evidence of record does not establish the Veteran's pre-existing schizoaffective disorder was not aggravated in service by clear and convincing evidence. 38 U.S.C.A. § 1111. As such, the presumption of soundness is not rebutted, and the claim becomes one for service connection. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). As such, service connection may be established if there is 1) medical evidence of a current disability; (2) 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 present disability. As discussed above, the Board finds the medical evidence of record establishes the Veteran is currently diagnosed with schizoaffective disorder. The medical evidence also establishes that the Veteran's military service, including his time confined in a submarine, served to aggravate his current condition. Therefore, the Board finds the requirements for service connection have been met. As such, the Board finds the Veteran's claim for service connection for an acquired psychiatric condition, to include schizoaffective disorder, is granted. In regards to the Veteran's claim for PTSD, the Board finds that both the conditions of PTSD and schizoaffective disorder are evaluated under the same symptoms and criteria in VA regulations. See 38 C.F.R. § 4.130, Diagnostic Codes 9211 and 9411. The Board notes throughout the period on appeal the Veteran has complained of nightmares and social isolation, among other symptoms, due to his psychiatric conditions. Because service connection for schizoaffective disorder has been granted based on these symptoms there is no basis for further pursuit of a separate claim for service connection for PTSD based on these same symptoms. Duties to Notify and Assist The Veteran's claim for service connection is granted. This is a full grant of all benefits sought on appeal. In light of this result, a detailed discussion of VA's various duties to notify and assist is unnecessary (because any potential failure of VA in fulfilling these duties is harmless error). ORDER The Veteran's claim for service connection for an acquired psychiatric condition, to include schizoaffective disorder, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs