Citation Nr: 1322085 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-29 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In connection with his appeal, the Veteran testified at a video-conference hearing in June 2012 before the undersigned Veterans Law Judge. A copy of the transcript is of record. In September 2012, the Board remanded the Veteran's claim for further development and, in May 2013, the Board obtained an expert medical opinion through the Veterans Health Administration (VHA). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records pertinent to the present appeal that were considered by the agency of original jurisdiction (AOJ) in the February 2013 supplemental statement of the case. FINDING OF FACT Resolving all doubt in favor of the Veteran, schizophrenia and PTSD are related to his military service, to include in-service sexual trauma. CONCLUSION OF LAW Schizophrenia and PTSD were incurred during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for schizophrenia and PTSD herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as psychosis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. According to 38 C.F.R. § 3.384 , the term "psychosis" includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder, not otherwise specified (NOS); schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by- case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999). When the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). However, in July 2010, the evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed. The new regulations provide that 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. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010); 38 C.F.R. § 3.304(f)(3). Additionally, if a PTSD claim is based on claimed in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (Court) held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1R, Part IV, Subpart ii, Section D, Chapter 17, which address PTSD claims based on personal assault, are substantive rules that are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). (The Board notes that the aforementioned are the current provisions related to PTSD claims based on personal assault). M21-1R, Part IV, Subpart ii, Section D, Chapter 17 states that, in cases of assault, development of alternate sources for information is critical. There is provided an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, military or civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. Id. In addition, 38 C.F.R. § 3.304(f)(4) provides that behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor. The Court in Patton stated that such changes in behavior should be examined and clinically interpreted to determine whether they constitute evidence of "(v)isits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment." It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion can also serve as the credible supporting evidence of the reported stressor. Patton at 280. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD. In this regard, he claims that he has variously diagnosed mental disorders as a result of his military experience. Furthermore, he states that he was not diagnosed with a mental disorder, including schizophrenia, prior to his military service. In fact, he alleges he suffers from PTSD due to military sexual trauma (MST). Specifically, in a December 2005 statement, the Veteran described an in-service incident in which he was grabbed by 5 or 6 men, taken at gun point to a deserted field, and forcibly raped. He also stated these men threatened his life. Additionally, the Veteran submitted another statement in July 2006 from members of his family attesting to the Veteran's behavior after his military service, including crying and his reports he "experienced many terrible incidents." The Veteran's August 1968 entrance examination does not note a diagnosis of any acquired psychiatric disorder, to include schizophrenic reaction, paranoid type. However, the March 1969 Medical Board decision determined the Veteran was diagnosed with schizophrenia in May 1967 at Harbor General Hospital in Torrance, California, (the Board notes that such records are unavailable) and he was discharged due to this mental health disorder. The Medical Board considered the Veteran's behavior during service as relating to his schizophrenia, including his charge of being absent without leave (AWOL). In July 1978, the Veteran was provided a VA compensation examination in connection with his initial claim for service connection for schizophrenia. He was diagnosed with a nervous disorder. The Veteran's VA treatment records from 1999 to September 2012 show diagnoses of PTSD due to MST, psychosis, and depression. The first indication of the Veteran's report of MST was in October 2002, and he was specifically diagnosed with PTSD due to MST in January 2005. His private treatment records from Dr. J.O., dating from March 2005 to June 2009 also indicate the Veteran is receiving treatment for PTSD due to MST. The Veteran's VA treatment records, as most recently as September 2012, indicate that he is on medication specifically for his PTSD. Additionally, the Veteran's VA physician has submitted statements in March 2005, September 2007, June 2009, and October 2012 diagnosing the Veteran with PTSD due to MST. In October 2012 the Veteran's VA physician stated that the Veteran was under his care for treatment of severe PTSD due to MST. He stated that the Veteran experienced depression, irritability, anger, flashbacks, intrusions, recollections, nightmares, hallucinations, sleep disturbances, among other symptoms. He also indicated that the Veteran avoided news or reports related to sexual assault and violence, and he had hypervigiliance when he was not home. He stated that, when the Veteran first reported his sexual assault during military service, he was diagnosed with schizophrenia and that was a misdiagnosis as his symptoms should have been diagnosed as PTSD. He also stated that, since PTSD is characterized by an inability to recall all or most of the trauma, it makes it very difficult if not impossible for the Veteran to write a detailed stressor letter. The Veteran has reported that he was re-assaulted on several occasions and his commanding officers refused to respond to his reports. Ultimately, the Veteran felt that he had no choice but to go AWOL. It was stated that, to avoid charges being filed, the military agreed to discharge the Veteran honorably if he did not say anything about the sexual attacks and, thus, the military did not document it. The Veteran was afforded a VA examination in December 2012. The VA examiner diagnosed psychotic disorder not otherwise specified and depressive disorder not otherwise specified and stated that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV. The examiner noted that the Veteran reported that, prior to entering military service, he never had any mental condition. He also observed that the Veteran's reported stressor of being gang raped several times during his military service. Following a review of the record and an interview with the Veteran, the examiner noted, prior to entering the military, documentation suggested that the Veteran appeared to suffer from symptoms of a psychotic disorder although the Veteran refutes such claim. He further stated that there is no clear and unmistakable evidence of the Veteran's psychiatric disorder prior to entering the military. His rationale was that there was no documentation in the Veteran's file from Harbor General Hospital dated May 1967 supporting the diagnosis of Schizophrenia, acute, undifferentiated type. (The Board notes that such records are unavailable). The only documentation found was the reference to the document in the psychiatric examinations completed by the Army while the Veteran was in service. The Veteran currently refutes that he had a psychiatric diagnosis prior to entering the military. The VA examiner stated that the Veteran's in-service assault was undocumented and his subsequent AWOL was difficulty to use as a marker as there is documentation that suggests that there were four other soldiers who received punishment on the same day for the same offense. The examiner noted that such appeared to have been a pattern of behavior at that time in that particular training environment. He further observed that the Veteran's reliability/behavior prior to such time was questionable as he self-referred to medical providers complaining of "head pain and syncope" in November 1968. The VA examiner found that the only clear documentation was that the Veteran was discharged from the military secondary to a psychiatric diagnosis of schizophrenia, paranoid type. In this regard, the Veteran first presented to mental health providers in January 1969 complaining of insomnia, auditory and visual hallucinations, confusion, concrete thinking, and paranoid ideation. He was hospitalized and subsequently placed in a medical holding company prior to his discharge in May 1969. There was no documentation of a sexual or other type of assault. He was assess, diagnosed with a pre-existing psychiatric disorder, and discharged honorably. Based on available information, the VA examiner stated that the Veteran currently meets the diagnoses of psychotic disorder NOS and depressive disorder NOS. He further indicated that there was no enough information available to establish the diagnostic timeline for either diagnosis. While the documentation supports a pre-existing psychotic disorder with an accompanying mood disorder, the Veteran refuted such assertion. The examiner concluded that it remained unclear whether the Veteran's current psychiatric symptoms were pre-existing, directly related, or casually related to his active duty service. He further indicated that he could not resolve such issue without resorting to mere speculation. The VA examiner also stated that the evidence available does not support the Veteran's assertion of an in-service sexual assault. In this regard, he indicated that there is no clear supporting documentation and the Veteran's AWOL activity is not enough to support his claim based on documentation of several other soldiers' adjudication for the same offense at the same time in January 1969. The examiner concluded that, as such was the Veteran's only reported stressor, he does not meet the criteria for a diagnosis of PTSD. He further stated that, if the Veteran's claim of an in-service assault cannot be supported, it brings into question his current claim of ongoing psychotic disorder based on his reports that he only hears the voices of his attackers. It is supported that at some time in the Veteran's life, he was diagnosed with a psychotic disorder. However, the presence of an ongoing psychotic issue cannot be resolved without resorting to mere speculation. In light of the conflicting evidence regarding whether the Veteran has a diagnosis of PTSD and the December 2012 VA examiner's indication that he could not render an etiological opinion without resorting to speculation, the Board sent the Veteran's claims file for a VHA expert medical opinion, which was rendered in May 2013. The examiner was first asked to identify all of the Veteran's acquired psychiatric disorders that meet the DSM IV criteria. In this regard, the examiner stated that there was clear evidence that supports a diagnosis of schizophrenia, which includes an in-service diagnosis and subsequent recurrent episodes of psychosis with symptoms of auditory and visual hallucinations and paranoid delusions. He stated that there was also significant documentation of ongoing PTSD symptoms and, while he could not personally evaluate the Veteran, he concluded that, based upon several mental health professionals' reported evaluations, the Veteran's symptoms are consistent with a diagnosis of PTSD secondary to military sexual trauma. The VHA medical expert also stated that, despite the fact that a military physician documented that the Veteran was admitted to a private hospital in May 1967 and diagnosed with schizophrenia, there is no substantiating record from Harbor General Hospital included in the claims file, it was not ascertained in the Veteran's entrance medical examination, and the Veteran denied any previous hospitalization. Therefore, he indicated that he could not state that the Veteran clearly and unmistakably had a preexisting diagnosis of schizophrenia prior to joining the military. Additionally, there was no evidence of preexisting PTSD prior to his military service. The examiner further stated that it was clear that the Veteran was admitted to inpatient mental health treatment during his military service and was diagnosed with schizophrenia. He opined that, based upon his review, it is also as likely as not that the Veteran had military sexual trauma while in the service and has developed secondary PTSD. The VHA medical expert further stated that it was at least as likely as not that the Veteran's PTSD was the result of his alleged in-service assault and that going AWOL could be interpreted as an avoidance symptoms of the PTSD, but also may have been related to fear of ongoing risk for further assault as the Veteran reported to his practitioner. He stated that he did not find any evidence of the Veteran being treated for psychosis within one year of service, but there was significant evidence of treatment for psychosis during the years since service. After a careful review of the Veteran's claims file and by granting the Veteran the benefit of the doubt, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as schizophrenia and PTSD, is warranted. As an initial matter, the Board finds that there is no clear and unmistakable evidence that the Veteran had a preexisting acquired psychiatric disorder. In this regard, every Veteran 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; 38 C.F.R. § 3.304(b). While the March 1969 Medical Board decision determined that the Veteran was diagnosed with schizophrenia prior to service, it was not noted at the time of the Veteran's August 1968 entrance examination, there are no substantiating records from Harbor General Hospital, and the Veteran has denied any preexisting psychiatric diagnosis. Moreover, it was determined by both the December 2012 VA examiner and the May 2013 VHA examiner that there was no clear and unmistakable evidence that the Veteran had a preexisting psychiatric disorder. Thus, the Board finds that there is no clear and unmistakable evidence that the Veteran had a preexisting psychiatric disorder and, therefore, he is considered sound at the time of his entrance into the military. Additionally, there is evidence of a current acquired psychiatric disorder. In this regard, the Veteran's treatment records reflect ongoing diagnoses of PTSD and schizophrenia and the May 2013 VHA medical expert confirmed that the Veteran met the DSM IV criteria for such diagnoses. While the December 2012 VA examiner diagnosed psychotic disorder NOS and depressive disorder NOS, and the Veteran's treatment records show additional diagnoses of psychosis and depression, the May 2013 medical expert opinion only found sufficient evidence to provide diagnoses of PTSD and schizophrenia pursuant to the DSM IV. In reaching such conclusion, he considered the full record and noted the recurrent episodes of psychosis, which he appears to attribute to such diagnoses. Furthermore, despite the varying diagnoses, the probative medical opinion from the May 2013 medical expert only links PTSD and schizophrenia to the Veteran's military service. In this regard, the Board notes that the December 2012 VA examiner stated that he could not opine on the etiology of the Veteran's acquired psychiatric disorder without resorting to mere speculation. Medical opinion based on speculation, without supporting clinical evidence, does not provide the required degree of medical certainty and would be of no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Therefore, such opinion lacks probative value. In contrast, the record is replete with diagnoses of PTSD due to MST. Moreover, the highly probative May 2013 VHA opinion relates the Veteran's schizophrenia and PTSD to his military service, to include in-service sexual trauma. Therefore, resolving all doubt in favor of the Veteran, the Board finds that service connection for such acquired psychiatric disorders is warranted. ORDER Service connection for schizophrenia and PTSD is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs