Citation Nr: 1323141 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 07-30 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for schizoaffective disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his sister ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1972 to February 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part, denied service connection for schizoaffective disorder. In a February 2007 rating decision, the RO confirmed and continued the denial for schizoaffective disorder. In December 2007, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. The issue on appeal was previously remanded by the Board in March 2011 for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a VA examination for the Veteran's mental health condition. This was accomplished, and the claim was readjudicated in a March 2012 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Further, the most recent VA Form 21-22 in the claims file, dated May 2013, revoked the Veteran's consent to representation by Disabled American Veterans, and appointed the The Texas Veterans Commission as the Veteran's new representative. A power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1) (2012). Accordingly, as of May 7, 2013, the Veteran has been represented by the Texas Veterans Commission. FINDINGS OF FACT 1. The Veteran has a current diagnosis of schizoaffective disorder. 2. The Veteran experienced symptoms of a mental health disorder during service, including hearing voices and self-medicating with alcohol. 3. Resolving reasonable doubt in the Veteran's favor, schizoaffective disorder had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for schizoaffective disorder have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The claim of service connection for schizoaffective disorder has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations 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). The condition of schizoaffective disorder (psychosis) is considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms, and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for Schizoaffective Disorder The Veteran contends that service connection is warranted for schizoaffective disorder as it is causally related to the voices he heard during military service. Further, the Veteran asserts that he consumed large quantities of alcohol during service as a form of self-medication to silence the voices he was hearing. See April 2011 VA examination report and April 2011 addendum opinion. At the outset, the Board finds that the Veteran has a current diagnosis of schizoaffective disorder. In a December 1998 VA outpatient treatment record, the Veteran was first diagnosed with schizoaffective disorder, and the Veteran testified that he received weekly treatment at the VA Medical Center in Waco, Texas. A diagnosis of schizoaffective disorder was also confirmed in the April 2011 VA examination report. The Board next finds that the evidence is at least in equipoise as to whether the Veteran's schizoaffective disorder is related to service. Weighing against the Veteran's claim are service treatment records which are absent of any complaints, treatment, or diagnosis for a psychiatric disorder. Further, despite the Veteran's contentions that he experience schizoaffective symptoms in service and immediately following service separation, the medical evidence of record demonstrates that he first sought treatment in 1996, 21 years after service separation. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor for consideration in deciding a claim). The Board finds that this evidence weighs against a finding that schizoaffective disorder symptoms were chronic in service and continuous since service separation. Weighing in favor of the Veteran's claim for service connection is an April 2011 VA examination report and April 2011 addendum opinion. The VA examiner reviewed the claims file, conducted an in-depth interview with the Veteran, performed a mental status examination, and provided a rationale for the opinions stated. The examiner noted that the Veteran was unable to attend to his activities of daily living or manage any substantial tasks independently due to his chronic mental health disability. The diagnosis was confirmed as schizoaffective disorder with a global assessment of functioning score of 41, indicating impairment in reality testing with severe functioning impairment. In the April 2011 addendum opinion, the VA examiner was asked to provide a clear rationale and opinion as to the etiology of the Veteran's mental health disorder. The VA examiner noted that to determine the specific "cause" of the schizoaffective disorder would require mere speculation. Instead, the examiner stated that his medical opinion related to the probable onset of the mental health condition. In this regard, the examiner opined that the Veteran's schizoaffective disorder more likely than not had its onset in service. The rationale for this opinion was based on a review of the claims file, which included medical records indicating that the Veteran was first formally diagnosed with depression in 1996. During various treatment episodes from 1996 until his first known formal diagnosis of schizoaffective disorder in 1998, the Veteran received depression diagnoses from dysthymia to major depression. These records also contain documentation of paranoid ideation and the use of antidepressant, mood stabilizing, and antipsychotic medications. According to the VA examiner, the use of antipsychotic medication implied that while there was no formal psychotic diagnosis documented, the Veteran received treatment for both depression and possible psychotic symptoms when he presented for his first known treatment in 1996. The April 2011 VA examiner further noted that the claims file contained a VA treatment note, completed when the Veteran was first formally diagnosed with schizoaffective disorder and hospitalized in December 1998, in which the nurse reported that the Veteran claimed that he had been experiencing depression and hearing voices for more than 10 years. During the April 2011 VA evaluation, the examiner also stated that the Veteran denied having any significant symptoms of depression or psychosis, or any significant functional impairments during childhood or prior to military service. The VA examiner noted that this report was confirmed by the Veteran's sister during the interview. Further, the examiner stated that the records reviewed during the April 2011 VA examination indicated no pre-military symptoms or functional impairments prior to service and thus supported the Veteran's claim of no pre-military symptoms or impairments. It was noted that it was consistently well-documented throughout the claims file that the Veteran had no known history of mental health treatment while serving in the military, in spite of his allegation that he was experiencing depression, paranoid ideation, and hallucinations during this time period. The VA examiner also considered that the Veteran explained that he reported his psychotic symptoms to superior officers, and claimed that he was advised by his superiors to not report these symptoms due to the damaging impact they would likely have on his military career. Although there was no concrete verification of this other than the consistency of the Veteran's report, the VA examiner noted that the Veteran's explanation for not seeking treatment during service although misguided, appeared to be reasonable. In this regard, the examiner stated that many people do not seek mental health treatment in spite of very significant mental health symptoms due to the fears they have concerning potential professional, legal, and personal consequences. The April 2011 VA examiner further noted that the Veteran's report of symptom onset during military service was confirmed by family during the interview, who reported that upon his return from the military he was significantly changed (i.e., depressed, suicidal, abusing alcohol, verbalizing hyper-religious and paranoid thoughts, and hearing voices). The failure of the Veteran to seek treatment for his symptoms of depression and psychosis, either while in the military or immediately after his discharge, did not, according to the examiner, prove the absence of the disorder. Instead, the examiner stated that it only proved that he did not seek treatment for his mental health disorder. Further, the examiner explained that the typical age for symptom onset of schizoaffective disorder was early adulthood. This was noted as being consistent with the Veteran's age while serving in the military and thus also supported his claim of military onset of schizoaffective disorder. With regard to alcohol and drug abuse, the April 2011 VA examiner diagnosed the Veteran with alcohol abuse, remitted in a controlled environment. This, according to the examiner, indicated a history of, but not current, alcohol abuse. Based on the evidence in the claims file and the report of the Veteran and his family, the examiner opined that the onset of the alcohol abuse was most likely during military service; however, the Veteran's abuse of alcohol was viewed as an attempt to cope with and manage his symptoms of depression and psychosis. Also weighing in favor of the claim for service connection for schizoaffective disorder are the Veteran and his sister's lay statements, which the Board finds consistent throughout the record and credible. The Veteran testified at the December 2007 DRO hearing that he began to hear voices in July 1972 telling him to fire his missiles, that he told his sergeant about the voices, but was advised not to report to a doctor because that would ruin his career, and that he reported hearing voices at his November 1974 separation examination. The Veteran's sister has also stated that he did not appear to have mental health symptoms prior to entering service. See December 2007 DRO hearing transcript at pgs. 7-8; see also April 2011 VA examination report. The Board finds that the Veteran and his sister's statements regarding the Veteran's mental health symptoms prior to, during, and after service separation to be credible evidence weighing in favor of the claim for service connection. The evidence of record also includes a September 2007 VA outpatient treatment record where a VA physician reviewed the Veteran's medical history and opined that "it is possible stressful experiences in the military contributed to development of [the Veteran's] current symptoms of schizoaffective disorder." The Board finds that the September 2007 VA medical opinion is of little probative value as the physician opined that it was "possible" that the Veteran's schizoaffective disorder was due to service. The Board notes that statements like this from doctors are, for all intents and purposes, inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). Opinions like this are of little probative value for or against the claim because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185, 187 (1999); (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). Moreover, VA treatment records received pursuant to the Board's March 2011 remand instructions document the Veteran's continued mental health treatment; however, they do not provide an opinion as to the etiology of his schizoaffective disorder. See VA treatment outpatient records dated February 2007 to November 2011. Upon review of all the evidence of record, both lay and medical, the Board finds the April 2011 VA examination report and addendum opinion to be the most competent and probative evidence of record on the issue of a nexus to service. The VA examiner reviewed the evidence in the claims file, including service treatment records, post-service treatment records, lay statements, and conducted a mental status examination. The examiner also provided an opinion supported by a clear and detailed rationale which specifically discussed the evidence of record. For these reasons, the Board finds that the competent, credible, and probative evidence of record is at least in relative equipoise on the question of whether the Veteran's schizoaffective disorder is related to service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for schizoaffective disorder have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for schizoaffective disorder is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs