Citation Nr: 1320551 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-03 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for schizoaffective disorder, claimed as schizophrenia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty for training with the Army National Guard from April 1988 to September 1988 and on active duty with the United States Army from July 1989 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for a schizoaffective disorder, also claimed as schizophrenia. The Veteran has offered conflicting statements concerning the onset of his acquired psychiatric disability, reporting in his September 2008 claim that his condition began in 1997. In his claim for disability benefits from the Social Security Administration, he reported that his disability first began in 1996. However, in his January 2010 substantive appeal, he claimed that he noticed symptoms of his disability within six months of separation from service. The Veteran has also claimed at various times that he developed his current acquired psychiatric disability because he witnessed the death of a fellow service member in an accident, because of "intelligence information" he was exposed to during service, because he was "trained to kill", and because of the pressures of military discipline. 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 Savage v. Gober 10 Vet. App. 488, 495-97 (1997); 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. Savage, 10 Vet. App. at 495-96; see 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). Certain chronic diseases, including psychoses, 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. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board notes that psychoses are defined as mental disorders characterized by gross impairment in reality testing as evidence by delusions, hallucinations, markedly incoherent speech, or disorganized and agitated behavior, usually without apparent awareness on the part of the patient of the incomprehensibility of this behavior. Dorland's Illustrated Medical Dictionary 1573 (31st ed. 2007). In the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as " the DSM-IV "), psychoses are classified as psychotic disorders, which include schizoaffective disorder and schizophrenia. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed., 1994). 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). In the instant case, as the Veteran has a current diagnosis of schizoaffective disorder, at issue is whether this disability had onset in service or was caused by the Veteran's active military service. The Veteran's service treatment records are negative for any complaints of or treatment for an acquired psychiatric disability. At the Veteran's separation examination in November 1992, no psychiatric disability is noted. He also denied symptoms such as frequent trouble sleeping, depression, excessive worry, loss of memory, or nervous trouble of any sort on a Report of Medical History completed at the same time. Post service, the earliest documented manifestation of the Veteran's current acquired psychiatric disability is an arrest in March 1995 by the Grandview Police Department. According to police reports, the Veteran pulled a fire alarm at a local elementary school, forcing an emergency evacuation of the building. His action was witnessed by a police officer on scene, who promptly arrested the Veteran. The Veteran attempted to flee. He was pursued by police and when apprehended, violently resisted arrest, resulting in injury to several police officers. It was believed that he was under the influence of alcohol and/or drugs at the time of the incident. As the prison doctor, as well as the Veteran's family, suspected that his behavior was the result of an ongoing mental illness, the Veteran was referred for psychiatric evaluation. Records from Baptist Medical Center show that the Veteran was admitted in early April 1995 for psychiatric evaluation following his March 1995 arrest. At the time of admission, the Veteran reported that he had been hearing voices for the past ten months. He claimed that he pulled the fire alarm because the voices in his head were telling him to "set the children free." He also admitted to using alcohol and marijuana at the time of the incident. The Veteran's family reported that over the past weeks to months, the Veteran's actions had been bizarre and unlike his normal behavior, making them concerned that he was becoming mentally ill. In March 2009, the Veteran's mother, H.H., submitted a letter in which she reported that she and other family members had observed a significant change in the Veteran's behavior after he returned to Kansas City following separation from service. Following this first hospitalization in April 1995, VA and private treatment records reflect ongoing treatment for schizoaffective disorder, complicated by the Veteran's substance abuse and poor medication compliance. He has also been receiving disability benefits from the SSA for a psychotic disorder since 2001. However, none of the Veteran's treatment providers has offered an opinion concerning the etiology of his schizoaffective disorder and it is unclear from the record when the Veteran's disability first developed. The Veteran's report in April 1995 that he had been hearing voices in his head for ten months would place onset of his condition within one year of service, but given the inconsistencies in his statements and his long history of psychosis, the Veteran does not appear to be a reliable historian. The Veteran's family observed changes in the Veteran's behavior at some point following his return home and before his March 1995 arrest, but exactly when the Veteran's behavior began to noticeably deteriorate is unclear from the record. Accordingly, the Board finds that referral for a VA psychiatric evaluation is required. The examiner is asked to opine whether it is at least as likely as not that the Veteran's schizoaffective disorder had onset in service or within one year of service or if the condition was caused by, or is otherwise related to, the Veteran's active military service. Accordingly, the case is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA examination of his acquired psychiatric disability. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The examiner is asked to opine whether it is at least as likely as not (fifty percent or greater) that the Veteran's schizoaffective disorder or other acquired psychiatric disability had onset in service or within one year following separation from service or was caused by, or is otherwise related to, the Veteran's active military service. A complete rationale for these opinions should be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. Additionally, the examiner is also reminded to consider the Veteran's lay statements regarding the nature and onset of his disability. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. The Veteran's claims folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).