Citation Nr: 1320301 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-16 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, schizoaffective disorder, and obsessive compulsive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to May 1979 and from January 1984 to March 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Portland, Oregon, that, in pertinent part, denied service connection for an acquired psychiatric disorder. In March 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded the matter in September 2011 for further evidentiary development. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDING OF FACT The initial manifestations of the Veteran's diagnosed schizoaffective disorder occurred during his active service. CONCLUSION OF LAW A schizoaffective disorder was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Legal Principles It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence in the record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence of record shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, application of 38 C.F.R. § 3.303(b) is only triggered if the disability in question is one that is listed as a chronic disability under 38 C.F.R. §§ 3.307, 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Certain chronic diseases, including psychosis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The term "psychosis" includes schizoaffective disorder and schizophrenia. 38 C.F.R. § 3.384 (2012). Service connection may 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) (2012). III. Background The Veteran contends that his current psychiatric disability had its onset in service or is otherwise etiologically related thereto. In this regard, there is evidence of a current psychiatric disability in this case. When the Veteran underwent medical examination in connection with his claim in January 2012, the examiner diagnosed schizoaffective disorder, depressive type. That diagnosis was repeated on subsequent VA and private psychiatric examinations. Thus, as the evidentiary record clearly shows a current psychiatric disability, the Board will now consider in-service incurrence. The Veteran's service treatment records (STRs) do not reflect any complaints or findings of any psychiatric disorder. He does not argue the contrary. Rather, he states that he did not understand the symptoms he was experiencing (hearing sounds and seeing images) in service and thought they were normal occurrences. He says he did not feel it was necessary to seek out medical care. Post-service private treatment records and records from the Social Security Administration (SSA) dated from 2004 to 2006 documented findings of schizoaffective disorder, paranoid schizophrenia, bipolar disorder, obsessive compulsive disorder, adjustment reaction with anxiety and depression, rule out major depressive disorder with psychosis, rule out bipolar or hypomania, and family history of schizophrenia. These records include a September 2004 psychiatric evaluation report which reflects that the Veteran stated that had hallucinations which he believed began years ago, although he was unsure of the exact date of onset. The psychologist listed diagnoses of schizoaffective disorder, Asperger's disorder with obsessive compulsive traits, and rule out bipolar II disorder. In a May 2006 statement, the Veteran indicated that during service in the National Guard in 1979, he suffered from hallucinations and was diagnosed with anxiety. He also stated that he suffered from depression from January 1984 to March 1985 which is during his second period of active service. In a May 2006 treatment note private physician Dr. R. Gross listed a notation of VA "psychosis"- aggravated. The aggravating factor was not referenced. Treatment notes from that provider showed complaints of paranoia, hallucinations, suicidal ideation, mood swings, anxiety, irritability, and obsessional rituals. At the March 2011 hearing before the undersigned, the Veteran denied having sought treatment for any psychiatric disorder during service. He testified that his psychiatric disorder, claimed as PTSD, began during service when he began having problems with his feet and that he first sought psychiatric treatment in 2004. Pursuant to the Board's September 2011 remand, the Veteran underwent a VA mental disorders during which the examining psychiatrist diagnosed schizoaffective disorder, depressive type. He noted that the Veteran was first evaluated by a mental health professional in June 2004 on self-referral because of depression, suicidal ideation, and auditory hallucinations. A diagnosis of schizoaffective disorder was noted in the private treatment records. Upon completion of a mental status examination, the examiner indicated that the Veteran was first identified as manifesting psychotic symptoms in 2004. Based on his treating psychiatrist's notes, and information from the interview, the examiner opined that there is no question that he suffers from a psychotic disorder, i.e. schizoaffective disorder, depressive type. The examiner noted that the STRs were closely examined and there was absolutely no documentation of visual hallucinations, or for that matter, any psychiatric symptoms. Nevertheless, the examiner felt that it was quite apparent that the Veteran did experience visual perceptual disturbance that was first experienced while on active duty. The examiner provided a detailed explanation as to why he found the Veteran's history of experiencing hallucinations to be reasonable/credible. The examiner then explained that the occurrence of these symptoms would have been at about age 20-21, which is the age range when psychotic features frequently first manifest. The Veteran then manifested auditory hallucinations and clear evidence of a psychotic disorder when finally evaluated in 2004. On these bases, the examiner opined that it is at least as likely as not that the Veteran first experienced psychotic symptoms (visual hallucinations) while on active duty and that those symptoms were the first expression of an ongoing psychotic disorder that progressed to the present. In April 2013, the Veteran submitted a Mental Disorders Disability Benefits Questionnaire completed by his treating private psychiatrist Dr. Gross which reflects a diagnosis of schizoaffective disorder. Dr. Gross indicated treatment of the Veteran in 2004 and indicated that he had persistent paranoid ideation, delusion and hallucinations partially improved by high dose medication. The Veteran told him that he had visual hallucinations and paranoia during service at approximately age 20-24 and that he was so paranoid as to not share his symptoms with anyone, including his doctors and superiors. Dr. Gross opined that it is more likely than not that the Veteran first experienced his psychosis and illness of schizoaffective disorder while on active duty and that these illnesses progressed to the present time. IV. Analysis VA must consider all favorable lay evidence of record. 38 U.S.C.A. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has considered the lay evidence submitted by the Veteran in the form of his correspondence to VA and testimony before the Board. In this regard, the Board also accepts that the Veteran is competent to report complaints of having hallucinations during and after his service. Furthermore, lay assertions 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 subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Although there is more than a 9-year gap between the Veteran's discharge from service and when the available post-service records first reflect complaints and treatment of the Veteran's schizoaffective disorder, the record contains two competent medical opinions of record, one from the VA examiner and private psychiatrist Dr. Gross, who both opined that the Veteran first experienced psychotic symptoms during his service and related his schizoaffective disorder is related to his active service. There is no contrary opinion of record. In addition, the Veteran is competent to observe the presence of hallucinations during and after his service and the Board finds that his credible and consistent account of an onset of his psychiatric disorder during his service, to be probative evidence in support of his claim. In summary, the Board, in reviewing the record in its entirety, finds that the lay and medical evidence has demonstrated that the Veteran's schizoaffective disorder is related to his service. Service connection for a schizoaffective disorder, is warranted. The claim, therefore, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). In summary, the Board, in reviewing the record in its entirety, finds that the lay and medical evidence has demonstrated that the Veteran's schizoaffective disorder is related to his service. Service connection for schizoaffective disorder is warranted. The claim, therefore, is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). ORDER Service connection for a schizoaffective disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs