Citation Nr: 1322284 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-47 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Margaret Costello, Attorney-at-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from March 1977 to January 1979. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Detroit, Michigan. In the May 2008 rating determination, the RO reopened the previously denied claim of service connection and then denied the claim on the merits. In April 2010, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a September 2010 decision, the Board found that it was required to address the issue of whether new and material evidence had been received to reopen the previously denied claim of service connection regardless of the RO's actions. In its September 2010 decision, the Board found that new and material had been received to reopen the previously denied claim of service comention for schizophrenia and reopened the claim and remanded it for further action. FINDING OF FACT The evidence is in equipoise as to whether the Veteran's schizophrenia had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, schizophrenia was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, as it relates to this issue, further assistance is not required to substantiate that element of the claim. 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 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, schizophrenia, as a psychoses, is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). In particular, when the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. A review of the record reveals that on his March 1977 report of medical history, the Veteran checked the boxes indicating that he had or had had frequent trouble sleeping and depression and excessive worry. In the "note" section of the report, it was indicated that the Veteran had functional insomnia. At the time of the March 1977 enlistment examination, normal psychiatric findings were reported. At the time of a May 1977 examination, the Veteran was found to have no significant mental illness. On his May 1977 report of medical history, the Veteran checked the "no" boxes when asked if he had frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. In a treatment record dated in February, with no year supplied, it was noted that the Veteran was experiencing headaches and joint trouble. The Veteran stated that he did not think his ailments were from tension. In November 1977, the Veteran was found to have marijuana in his possession and was issued an Article 15. In February 1978, the Veteran was seen with throbbing headaches, leg pain, and sensory changes. The Veteran was again found to have marijuana in his possession in April 1978 and issued an Article 15. In June 1978, the Veteran was referred for substance abuse rehabilitation. In August 1978, the Veteran was found to have been successful in his rehabilitation with necessary follow-ups. In October 1978, the Veteran was subsequently declared a rehabilitative failure. It was indicated that he had not made sufficient progress toward acceptable behavior; was not functioning effectively at full duty; was not apparently free from significant alcohol-related problems and/or drug abuse; and had not demonstrated satisfactory motivation to remain free of alcohol or other drug abuse. It was also noted that he still had problems with fellow members of the Armed Forces and that his attitude was poor. On his October 1978 service separation report of medical history, the Veteran checked the "no" boxes when asked if he had frequent trouble sleeping; depression or excessive worry; or nervous trouble of any sort. At the time of the Veteran's October 1978 separation examination, the normal psychiatric findings box was checked. On the report itself, "Report of Mental Status Evaluation Attached" was typed, but no such document is of record. VA treatment records associated with the claims folder reveal that the Veteran sought psychiatric help beginning in July 1980. The Veteran was also treated for headaches immediately following service, with a diagnosis of tension headaches in October 1981 and a notation in an April 1982 record that the Veteran had bizarre symptoms with possible neuropsychiatric problems being noted. In November 1982, the Veteran was assessed as having amotivational syndrome. The Veteran was subsequently diagnosed with schizophrenia in April 1985. In conjunction with his claim, the Veteran was afforded a VA examination in November 2007. The examiner indicated that the claims folder was available and had been reviewed. The examiner observed that the Veteran entered service in March 1977 and was discharged in January 1979. He was noted to have had two Article 15's and was reduced in rank. The examiner observed that in an October 1978 rehab assessment report it was noted that the Veteran had great difficulty getting along with people and could not get along with his peers. The examiner also observed that there was an extensive amount of documentation in the claims files, including July 29, 1971, where he complained of headaches, joint trouble, and other somatic complaints. The examiner noted that the Veteran ended up receiving an administrative discharge for inability to adjust to service. It was indicated that after getting out of service, the Veteran ended up going to VA attempting to receive services. The Veteran was noted to have had continued difficulty adjusting after service and periodically used substances. He was identified in the early 1980's as having amotivational syndrome and by 1985 was found to be chronically psychotic and to have schizophrenic tendencies. Following examination, the examiner rendered a diagnosis of chronic schizophrenia with paranoid features. It was the examiner's impression that the Veteran had a great amount of difficulty adjusting in the military. He felt paranoid then, with difficulty adjusting. He was noted to have had a poor attitude and was unable to adjust, and was discharged for the same. The examiner noted that even after he got out of the military, within less than a year he was identified with continuing to be amotivational, having difficulty adjusting, and being paranoid. He started getting mental health soon after. The examiner stated that it was at least as likely as not that the Veteran met the criteria for chronic schizophrenia with paranoid features which course began in the military. In May 2008, the VA examiner who had conducted the November 2007 VA examination provided an addendum opinion. The examiner stated that noteworthy in the Veteran's service treatment records was a document dated 9/8/77, which indicated that the Veteran suffered from frequent trouble sleeping and depression or excessive worry, along with the Veteran having problems with substance abuse. The examiner noted that the Veteran sought out psychiatric treatment in the 1980s and was hospitalized in 1980 and diagnosed with schizophrenia, which had a known prodrome of starting much sooner. The examiner further stated that the Veteran had marked behavioral problems and social dysfunction while in the military and he did not appear to have access to clear mental health assessment in the military. He noted that after the military, it was more than obvious that the Veteran had a serious psychotic process that had been going on for some time. Therefore, it was at least as likely as not that the Veteran had a schizophrenic process that was developing at the end of his military service. He stated that while it may have not been totally clear in the documentation, there was some evidence, i.e., "frequent trouble sleeping", "depression or excessive worry", substance use, behavioral and social dysfunction, etc. In a July 2009 VA examination report, the same VA examiner indicated that the document which he originally thought was dated 9/8/77, wherein it was indicated that the Veteran had suffered from frequent trouble sleeping and had excessive worry, had a notation of a date of 3/8/77 on the back. The examiner then noted the subsequent May 1977 and October 1978 reports of medical history. He stated that he was going to seek the advice of his supervisor. In an August 2009 addendum, the supervising physician also noted the discrepancy in the records related to the 9/8/77 document. In a September 2009 VA examination report, the physician who had previously prepared all the other VA reports indicated that he had again reviewed the file and that the 9/8/77 document was really dated in 3/8/77. He stated that based upon this, a new medical opinion had been requested. The examiner indicated that what was verifiable was that the Veteran had chronic schizophrenia. He reported that this piece of evidence made it less likely than not that there was any verifiable evidence that the Veteran's schizophrenia began in the military because the data in question appeared to have been altered and was not in the doctor's handwriting who had done the documentation. The examiner stated that it was only speculation at this point as there was no verifiable evidence to date that the Veteran's schizophrenia had begun in service. The examiner indicated that while it was still at least as likely as not that the Veteran met the criteria for chronic schizophrenia, it was only speculation to state whether it began in the service as there was no other documentation in the file to confirm any evidence that it began then. In a February 2010 report, E. T., Ph.D., a private health care provider indicated that rather than re-evaluate all the Veteran's past history, she believed the November 2007 VA examiner's report clearly outlined the Veteran's medical progression. Dr. T. stated that based upon DSM-IV, the median age and onset for the first psychotic episode of schizophrenia was in the early to mid-20's for men. In 1979, the Veteran would have been 25. She noted that the Veteran indicated that prior to going into the military; he had had no mental health treatment. He had completed high school and was able to pass his initial physical and training in the military. After he was stationed in Germany, he began to have more difficulties as he had no one to talk to. That is when he began using drugs and alcohol to help him cope. Dr. T. citied to DSM-IV noting "The onset of schizophrenia may be abrupt or insidious, but the majority of individuals display some type of prodromal phase manifested by the slow and gradual development of a variety of signs and symptoms, e.g., social withdrawal, loss of interest in work or school, deterioration in hygiene or grooming, unusual behavior, outbursts of anger." She noted the entrance physical record dated March 8, 1977, and stated that she did not believe the notation of those symptoms made it any more or less likely that the Veteran would begin to develop the symptoms of chronic schizophrenia while in service, which he did. She noted that the VA examiner did not even consider the comment on the induction physical when he prepared his November 2007 report, forming the same conclusion that she had. Dr. T. indicated that the Veteran presented with classic symptomatology related to chronic schizophrenia. She noted that the symptoms had been evident ever since the Veteran had gotten out of the service. She indicated that there was history that the Veteran was having difficulties while in the military and was eventually released early because of these difficulties. She stated that based upon her clinical interview, observations, and review of extensive medical and military records, it was her professional opinion that more likely than not, the Veteran's schizophrenia was related to his military experience. She noted that in looking at the complete picture, the Veteran had not functioned well since his mid 20's and continued to have severe symptoms. It was her opinion that the Veteran's schizophrenia began, or was aggravated, during his military service. At his April 2010 Travel Board hearing, the Veteran testified that he had not been diagnosed with any mental condition prior to entering the military. He stated that at the start of his service, he was a good trooper and had good character references. He indicated that as he went along he began to have second thoughts about what he was doing because of the characters that he had to go up against, such as his superiors and others in his squad. He noted that he became suspicious and schizophrenic. The Veteran reported that he subsequently had things written down about him that he had done. The Veteran indicated that things started going downhill when he was stationed in Germany. He stated that his mind was beginning to be overburdened because he had to second think a lot of things he said and did to people. He indicated that because of his size and race he knew he was being manipulated and a burden was being placed upon him that he could not carry. The Veteran stated that he was nervous because of what he might do to someone or of what someone might do to him. He indicated that he tried to get mental health help but was denied the opportunity until he started drinking. He was seen at CDAD and initially talked candidly about his problems but asked to get out before it became too complicated. The Veteran stated that he did not trust the counselor and thought that the counselor did not trust him. He testified that he thought the counselor was racially motivated and he did not want anything to do with the counselor. He reported that the clash with other characters helped feed his paranoia because of his size and abilities. The Veteran stated that he turned to drugs to cope with some of the problems that he was having. In September 2010, the Board remanded this matter for further development. The Board noted the prior VA opinions and indicated that based upon the uncertainty of the date of the Report of Medical History, there was a possibility that the Veteran's schizophrenic process began prior to service entrance. The Board found that the issue of a pre-existing disability had been raised for which an additional medical opinion was needed. It noted that even assuming the speculative date of the Report of Medical History, the VA examiner, in November 2007 and May 2008, pointed to other factors and symptoms, to include the Veteran's substance abuse, poor attitude, and inability to adjust to military life, as well as the acknowledgement that schizophrenia has a known prodrome of starting much sooner than when it is officially diagnosed, in reaching his conclusion that the schizophrenic process developed in service. The Board indicated that this evidence raised the possibility that the schizophrenic process may have been aggravated by service. The Board found that additional opinion was required as to whether the Veteran's schizophrenia, or schizophrenic process, may have pre-existed service and, if so, whether the disability was aggravated by his active duty. The Board requested that the examiner indicate whether it was at least as likely as not that the Veteran's schizophrenia, or any schizophrenic process, existed prior to service, and, if so, whether it increased in severity during the Veteran's active military service beyond the natural progression of the disease. In February 2012, the VA examiner who had prepared all the previous reports again reviewed the claims folder. The examiner indicated that he had re-reviewed the claims folder and again noted the discrepancy in the dates in the front of the 3/8/77 document. The examiner proceeded to provide the exact same opinion, word for word, that he had supplied in September 2009. In June 2012, the same VA examiner provided an additional opinion as to the etiology of the Veteran's schizophrenia. The examiner again reported that he had reviewed the claims folder. The examiner proceeded to check the box indicating that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond the natural progression by an inservice injury, event, or illness. As to rationale to support his opinion, the examiner indicated that it had previously been noted in prior opinions that verification of the existence of schizophrenia could not be verified to have occurred in service due to lack of evidence, there was evidence of the claims folder being altered, and lack of evidence that the schizophrenia began before the military. Therefore, it was speculation that any pre-existing schizophrenia was aggravated by military service as it had already been the opinion of the examiner that the current schizophrenia beginning in military was only speculation. The examiner indicated that if there was any verified evidence that the Veteran's schizophrenia began in or before the military, he would be happy to readjust his opinion but not without evidence. The examiner then indicated that schizophrenia was known to begin in young adulthood, i.e. 20's, and some types of schizophrenia had been know to occur in the late 20's/early 30's. He stated that if one wanted to grant service connection on the basis of solid epidemiological association of age ranges then it could be considered that it was at least as likely as not that the schizophrenia had its origin in the military. The examiner stated that there was no evidence or data/evidence or epidemiological association in the claims folder that schizophrenia was developing before the military. After a review of all the evidence, the Board finds that the evidence is in equipoise as to whether the currently diagnosed paranoid schizophrenia had its onset/was incurred in service. Although the Veteran checked the boxes indicating that he had or had had frequent trouble sleeping and depression and excessive worry, with the "note" section of the report indicating that the Veteran had functional insomnia, on his March 1977 report of medical history, normal psychiatric findings were reported at the time of the March 1977 enlistment examination. Moreover, at a May 1977 examination, the Veteran was found to have no significant mental illness and the Veteran checked the "no" boxes when asked if he had frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort on a May 1977 report of medical history. Based upon the normal psychiatric finding on the March 1977 service entrance examination and the findings of no mental illness on at the time of the May 1977 examination, performed in close proximity to service entrance, the presumption of soundness has not been rebutted and the Veteran is found to have been sound condition at the time of his entrance into service. As the Board is finding that the Veteran was psychiatrically sound at the time of his entrance into service, the question is then whether the Veteran's current schizophrenia had its onset in service. Although the Board notes that there was no treatment or diagnoses of psychiatric problems in service, the Veteran's performance throughout his military career, which initially was considered exceptional, continued to deteriorate throughout his period of service, with several Article 15's being issued and the Veteran being placed in substance abuse treatment programs and subsequently being discharged as a rehabilitative failure with a notation that he had problems with fellow members of the Armed Forces and a poor attitude. VA treatment records associated with the claims folder reveal that the Veteran sought psychiatric help beginning in July 1980, with a notation in an April 1982 record that the Veteran had bizarre symptoms with possible neuropsychiatric problems being noted, and the Veteran being assessed as having amotivational syndrome in November 1982 and subsequently diagnosed with schizophrenia in April 1985. Although the Board notes that the VA examiner has provided many opinions with regard to the onset of the Veteran's paranoid schizophrenia, in his November 2007 report, the examiner observed that the Veteran had a great amount of difficulty adjusting in the military. He indicated that the Veteran was paranoid then and had a poor attitude and was unable to adjust, being discharged for the same. The examiner noted that even after he got out of the military, within less than a year he was identified with continuing to be amotivational, having difficulty adjusting, and being paranoid, and that he started getting mental health soon after. The examiner stated that it was at least as likely as not that the Veteran met the criteria for chronic schizophrenia with paranoid features which of course began in the military. Moreover, in his May 2008 addendum opinion, the examiner again noted that the Veteran sought out psychiatric treatment in the 1980s and was subsequently diagnosed with schizophrenia, which had a known prodrome of starting much sooner. He also observed that the Veteran had marked behavioral problems and social dysfunction while in the military and did not appear to have access to clear mental health assessment in the military, and that while it became more prevalent after the military, it was more than obvious that the Veteran had a serious psychotic process that had been going on for some time. Furthermore, Dr. T. in her February 2010 report, indicated that prior to going into the military, the Veteran had had no mental health treatment and had completed high school and was able to pass his initial physical and training in the military. She observed that after he was stationed in Germany, he began to have more difficulties as he had no one to talk and that he was eventually released early because of these difficulties. She stated that based upon her clinical interview, observations, and review of extensive medical and military records, it was her professional opinion that more likely than not, the Veteran's schizophrenia was related to his military experience. Moreover, both the VA examiner and Dr. T. have indicated that schizophrenia was known to begin in young adulthood, i.e. 20's, and some types of schizophrenia had been known to occur in the late 20's/early 30's. The Veteran was 25 years old in 1979. In the current case, the Board will resolve doubt in the Veteran's favor as to whether or not his paranoid schizophrenia had its onset in service. Although the Veteran's treatment records do not demonstrate treatment or findings of psychiatric problems in service, the Board finds the Veteran's statements/testimony that his schizophrenia had its onset in service are credible as they are supported by the record in that the Veteran's behavioral pattern, which was exceptional at first, markedly deteriorated, as demonstrated by way the issuance of Article 15's and the use of drugs, to the point that he was declared a rehabilitative failure in October 1978. Moreover, while the VA examiner's opinions are conflicting, both the VA examiner and Dr. T. have pointed to factors other than the March 1977 enlistment report of medical history as evidence of the onset of the Veteran's schizophrenia in service. As the Board is finding that the Veteran was sound at the time of his entrance into service, the medical opinions relating the Veteran's current paranoid schizophrenia, if not in favor of the Veteran, are at least in equipoise, and as such must be resolved in the Veteran's favor. The Board has found the Veteran's statements that he had paranoid symptoms in service credible and that the medical nexus between the current paranoid schizophrenia and service is at least in equipoise. For these reasons, and resolving reasonable doubt in favor of the Veteran, service connection is warranted for paranoid schizophrenia. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for schizophrenia is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs