Citation Nr: 1321907 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 05-04 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from April 1962 to May 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The case was brought before the Board numerous times, most recently in December 2012, at which times the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The preponderance of the evidence of record indicates the Veteran's psychiatric disability, variously diagnosed, is related to military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, variously diagnosed, have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The VA has statutory duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In light of the favorable action taken by the Board, any defects with respect to the duties of notice or assistance are non-prejudicial. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for psychoses may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, although there are medical opinions indicating the Veteran likely first developed a psychotic disorder at the age of 18 or 19 (i.e., while on active duty), the first medical evidence after service that reflects a diagnosis of psychotic disorder is not until decades after service. There is insufficient evidence indicating a psychotic disorder to a degree of 10 percent or more disabling within one year from the date of separation from service. Thus, the Board concludes the presumption is inapplicable here. The Veteran claims various in-service stressors responsible for his acquired psychiatric disorder. He indicates he was racially discriminated by Caucasian Marines in various ways. Specifically, he indicates he was assaulted by two Caucasian military policemen while hanging out with other African American friends in North Carolina. He indicates his Captain hit him in the head with a rifle for not cleaning his weapon well enough. Overall, he indicates he was treated differently. He further indicates while in Camp Lejeune, he was sent on temporary missions to Cuba and Panama via the USS Shreveport. Therein, he indicates he was shot at by snipers, witnessed a friend be decapitated by a helicopter blade, and almost fall out of a helicopter himself while he was trying to get his weapon. In a later March 2007 statement, the Veteran clarified that he is not sure if the fellow Marine was decapitated by the helicopter blade or was just badly injured. In any case, the Veteran did not recall his name. The Veteran's service treatment records do not confirm any in-service mental health complaints, treatment, or diagnoses. His personnel records do confirm he was reprimanded numerous times for disobeying orders, falling asleep at his post, not getting a haircut within regulation, and leaving ammunition in his locker. He was discharged "under honorable" conditions. Despite extensive efforts by the RO, none of the Veteran's in-service stressors could be objectively confirmed. His personnel records do not confirm any overseas or foreign service. Although the USS Shreveport did travel to Cuba and Panama during the Veteran's military service, there is no objective evidence that the Veteran was on board the ship at those times. In an effort to confirm his statements, the Veteran also submitted lay statements from family and friends detailing the Veteran's change in mood and character after service. Most significantly, a fellow serviceman indicated in a March 2007 statement that he was with the Veteran in 1975 when they were in North Carolina and military policemen pulled them over, drew their guns and ordered them down on the ground calling them racial slurs. The statement further states the military policeman threatened to kill them if they could and drop them in a ditch. After the incident, the serviceman indicates the Veteran stopped going into town and became more isolated. Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. This claim is complicated because it is clear after service the Veteran had a lengthy history of polysubstance abuse, to include cocaine. From 1986 to 2001, the Veteran was in and out of hospitals due to his cocaine dependence. While he was also diagnosed with other psychiatric problems, these records seem to relate the psychiatric condition(s) to his drug abuse. For example, the Veteran was hospitalized in May 1994 where he was diagnosed with alcohol dependence, cocaine dependence, polysubstance abuse, and depression, not otherwise specified. He was admitted for "detox" and feelings of depression and low self-esteem, which intensified with drug and alcohol abuse. At that time, his military service was not mentioned at all. Rather, the Veteran indicated he was emotionally neglected as a child. The Veteran was also hospitalized in September 2000 and December 2000 where he was hearing voices and exhibited other psychotic symptoms. These symptoms were attributed to his drug abuse. He was specifically diagnosed with affective disorder "related to a long history of polysubstance abuse" in December 2000. The Veteran denied combat exposure at that time, but did mention the helicopter decapitation incident, being fired upon in Cuba, racial discrimination, and general incidences of degradation. He was described as angry and guarded with both suicidal and homicidal ideation. Also in December 2000, another VA psychiatrist diagnosed the Veteran with major depression, posttraumatic stress disorder (PTSD), and cocaine dependence. The psychiatrist also indicated "rule out psychotic disorder not otherwise specified." No specific military trauma was noted. Rather, the Veteran focused on family members who were shot and killed in the past. In January 2001, the Veteran underwent a PTSD evaluation at the VA. The examiner at that time did not feel the Veteran met the criteria for PTSD, but rather felt the Veteran was grieving family member deaths. The Veteran underwent a VA examination in March 2001 where the examiner noted the Veteran's long history of hospitalizations and outpatient care for a variety of problems including polysubstance abuse, depression, and a psychotic disorder. The Veteran did not even remember details of 1976 to 1981 due to his drug dependence. At that time, the Veteran claimed various in-service stressors, to include being attacked by military policeman with pistols, being shot at in Cuba, but being ordered not to shoot back, and witnessing a friend's beheading from a helicopter blade. He also noted various family members being shot to death. At that time, the examiner found the Veteran's reported history so incoherent that a battery of tests was performed. These tests were also found invalid. Ultimately, the examiner diagnosed the Veteran with paranoid schizophrenia, depression, and a history of polysubstance abuse. The examiner explained that the Veteran was extremely hostile and paranoid making the diagnostic picture extremely difficult. The Veteran underwent a general medical VA examination in April 2001. Although psychiatric testing was not the focus, the examiner did opine that there was no evidence the Veteran's drug problem was caused by or exacerbated by his military service. Within the claims folder and Virtual VA, there are over 700 pages of ongoing VA outpatient treatment records from 2001 to 2012 indicating ongoing psychiatric treatment for a variety of disorders. The Veteran's diagnoses have differed significantly. The one relative constant, however, is a diagnosis of some sort of psychosis, either an unspecified psychotic disorder or schizophrenia. Polysubstance abuse and specifically cocaine dependence is also mentioned consistently throughout time. It appears the Veteran's drug addiction has been in remission since 2001. In March and April 2001, the Veteran was mainly diagnosed with depressive disorder, personality disorder (such as antisocial personality disorder) and a history of polysubstance abuse. Thereafter, the Veteran's diagnosis of psychosis or psychotic disorder is consistent. In contrast, whether the Veteran has PTSD has been hotly contested from one physician to the next. For example, in June 2006, a VA outpatient treatment record reflects a diagnosis of PTSD, depressive disorder, and psychosis with a GAF score of 45. The examiner notes the two military policemen assault incident as well as other similar racial discriminatory events. In contrast, a private March 2007 assessment notes the diagnosed psychotic disorder since approximately 1992, but could not confirm a diagnosis of PTSD finding too many "irregularities" with the Veteran's claimed stressors. The private examiner found no objective confirmation of the reported stressors, whether the Veteran was actually stationed on the USS Shreveport, and whether he actually had overseas or foreign service. In fact, the Veteran contradicted his story with regard to the helicopter decapitation story indicating he was not sure if the fellow serviceman was decapitated or just badly injured. The record also contains two statements dated in January 2008 and January 2009 from the Veteran's regularly treating VA psychologist. Therein, the VA psychologist indicates the Veteran does meet the criteria for PTSD and depression related to in-service events, specifically the mistreatment of African Americans in Camp Lejeune. The psychologist also explained that the severity of his PTSD is affected by his current psychosis. The VA psychologist explained that the most common age of onset for psychosis occurs around the age that the Veteran was in the military service and reports these stressful events as happening. "This means that [for the Veteran] these incidents could at least as likely as not have hastened [the Veteran's] Psychosis, NOS, because these incidents happened at a vulnerable time for him." Regardless of the contributory role of these events, the VA psychologist further opined that the Veteran's psychosis "likely exacerbates the level of PTSD symptomatology." For these reasons, the Veteran's VA psychologist opined that his PTSD, psychosis, and depression are attributable to the Veteran's military service. The Veteran was afforded a VA examination in January 2009 where the examiner diagnosed the Veteran with PTSD, psychotic disorder, and cocaine/cannabis dependence, in sustained remission. With regard to etiology, the examiner found it at least as likely as not that the diagnoses were related to his various claimed stressors, to include the temporary assignments on the USS Shreveport to Cuba and Panama, being hit in the head by his Captain, drug abuse, and racially charged in-service events. The Veteran was afforded another VA examination in August 2010 where the examiner noted the Veteran's various claimed stressors and contentions. Overall, the examiner declined diagnosing the Veteran with PTSD. Rather, the examiner diagnosed the Veteran with cocaine dependence, psychotic disorder, and antisocial personality disorder unrelated to the reported in-service stressors. Interestingly, however, the examiner also noted, "it is unclear whether the psychosis pre-dated the substance dependence [i.e., during service] or whether it is the result of long-term use of cocaine and other drugs." In an addendum August 2010 opinion, the examiner further indicated that while it is possible the in-service personal assault described by the Veteran could have occurred, the Veteran's response was that of rage and not fear. Consequently, the examiner did not find the Veteran met the criteria for PTSD. Most recently, the Veteran was afforded yet another VA examination in January 2013. The examiner diagnosed the Veteran with psychotic disorder, alcohol dependence, cocaine dependence, and antisocial personality disorder, but declined diagnosing the Veteran with PTSD. The examiner noted the Veteran's claimed in-service stressors, to include racially charged personal assaults. The examiner did not find objective evidence sufficient to substantiate the Veteran's claimed stressors or other symptomatology that would warrant a diagnosis of PTSD. Significantly, the January 2013 examiner also noted the Veteran's rage and anger versus fear. The examiner further noted the Veteran's cocaine dependence and alcohol dependence are in full remission, but are likely the cause of the Veteran's current symptoms of psychosis, including paranoid ideation and hallucinatory activity. The examiner further opined, "it is less likely than not that the Veterans psychosis is causally or etiologically a result of the Veteran's military service." In short, the medical evidence shows varying diagnoses of polysubstance abuse, psychotic disorder, schizophrenia, affective disorder, depression, PTSD, and antisocial personality disorder. It is clear the Veteran had a lengthy history of cocaine abuse, which some examiners attribute as the cause of his current psychotic symptoms whereas other examiners seem to imply the psychotic symptoms pre-dated substance abuse and likely started when he was 18 or 19 years old (i.e., while he was on active duty). The RO made extensive efforts to objectively confirm any of the Veteran's claimed in-service stressors, but to no avail. Even so, the Veteran did supply a fellow serviceman's statement substantiating one assault by two military policemen and racially charged attacks on the Veteran. Some examiners found the Veteran's reported stressors sufficient to produce PTSD whereas other examiners could not render the PTSD diagnosis. The Veteran is competent to describe in service accidents and duties performed. With regard to PTSD specifically, however, credible supporting evidence is required showing that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Lay evidence may be sufficient where the stressor is related to the Veteran's fear of hostile military or terrorist activity. Id. § 3.304(f)(3). The same verification is not needed, however, for other psychiatric diagnoses. During the pendency of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The provisions of this amendment apply to applications for service connection for PTSD that, among others, were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Accordingly, the provisions apply to this case. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by adding a new paragraph (f)(3), which reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.... Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3) (2011)). Initially, under the amended 38 C.F.R. § 3.304(f)(3), the stressor claimed must include "fear of hostile military or terrorist activity," which is defined as follows: [T]hat a veteran experienced, witnessed or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness or horror. 38 C.F.R. § 3.304(f)(3) (2011). The Veteran did indicate circumstances of being shot at by snipers in Cuba, but his presence in Cuba could not be confirmed. Thus, the Board finds his statements are not "consistent with the places, types and circumstances" of his service. Id. Again, there is conflicting medical evidence whether the Veteran has PTSD specifically. In contrast, the medical evidence is very consistent that the Veteran has some sort of psychotic disorder. Some examiners feel the psychotic disorder is attributable to his long-standing substance abuse, and other examiners opined that the psychotic disorder pre-existed the substance abuse and began during military service. The Board finds particularly persuasive, the 2008 and 2009 opinions from the Veteran's regularly treating psychologist who opined that the Veteran's psychoses likely began when he was in the military because that is the most common age for psychosis to begin. The VA psychologist further noted that stressful incidents can likely trigger psychotic disorder, which is what he opined likely happened in this case. While it is not as clear whether the Veteran's symptoms warrant a diagnosis of PTSD, examiners seem to indicate his psychotic disorder would heighten any perceived in-service stressor. In light of the medical evidence in this case as described above, the Board finds the evidence is at the very least in relative equipoise. As such, service connection is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs