Citation Nr: 1324501 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 94-39 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esquire WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1973 to July 1976. This appeal to the Board of Veterans' Appeals (Board) arises from a rating decision of the New Orleans Regional Office (RO) of the Department of Veterans Affairs (VA). In June 1996 a Board hearing was held at the RO before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. Additional hearings were held before Judges who are no longer at the Board. As such, the remaining Judge that has held a hearing on this issue will enter a decision on this matter. The case was initially remanded in July 1997 and then initially denied by the Board in July 2004. The case was subsequently subject to September 2005, October 2008 and December 2009 Joint Motions for Remand by the parties, which resulted in remands to the Board by the Court of Appeals for Veterans Claims (Court). Most recently the Board denied the appeal in April 2012, but in August 2012, that decision was also subject to a Joint Motion for Remand. In February 2013, the Board sought a Veteran's Health Administration (VHA) opinion, which was received in April 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is more likely than not the Veteran's schizophrenia had its onset during service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, schizophrenia was incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.384 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Finally, a psychosis, if manifested to a compensable degree within the first post-service year, warrants service connection. 38 C.F.R. §§ 3.307, 3.309(a). Schizophrenia falls within the "psychosis" category. 38 C.F.R. § 3.384. The Veteran's service treatment records, including his separation examination report, show no treatment for any psychiatric complaints, nor do they show onset of any psychiatric symptoms or diagnosis of a chronic psychiatric disorder during his period of active duty. The Veteran's service personnel records reflect that he was counseled on numerous occasions for unsuitable behavior from September 1975 to May 1976, including lack of motivation, failure to comply with a verbal order, rank not on uniform, missed formation, requiring constant supervision to get the job done, not wanting to assume a job as a jeep driver, AWOL from driver's training and disorderly conduct. It was noted that he received a field grade Article 2 on June 5, 1976, with punishments of forfeiture of $50 pay for 2 months, restriction to Camp Humphreys for 15 days and 15 days extra duty. Later in June 1976 action was initiated to discharge the Veteran under the expeditious discharge program based on lack of motivation and poor attitude. The Veteran voluntarily consented to the discharge and separated from service on July 6, 1976. His service was characterized as honorable. Per the Veteran, his history prior to his 1992 claim included Valium and cocaine use and heavy drinking, which began in 1973 or 1974. During service, he developed intolerance for noise. Following discharge, he lived with his sister in San Francisco, where he reportedly experienced nervousness and was prescribed tranquilizers. Six years after service, the Veteran moved to Houston, Texas; he was reportedly homeless during most of his time in Houston. In November 1989 he moved to Louisiana to live with his sister. In Louisiana, he felt depressed and would sometimes hear a voice in a dream and wake up crying. He found himself sad and tearful at times during the day as well. Following the move, he worked for four months in a canning company but then quit because the work was too heavy and noisy; he has not worked since. His sister has provided lay evidence essentially confirming the Veteran's contentions regarding his post-service experiences. The date of the Veteran's original schizophrenia diagnosis is not clear in the records, but the evidence suggests that it was prior to December 2001; a treatment note from December 2001 includes a reference to a prior diagnosis of schizophrenia. Following a psychiatric evaluation in March 2002, an examiner diagnosed the Veteran with schizophrenia, undifferentiated, in partial remission. Following a July 2010 VA examination, the Veteran was again diagnosed with schizophrenia. Although that examiner provided an opinion that the disorder began during military service, in November 2010 the examiner penned an addendum, citing a February 2009 VA examination report, that the Veteran's "mental difficulties are not caused by military service." The Board relied on that November 2010 addendum in its April 2012 denial of the Veteran's claim. For the reasons discussed in the August 2012 Joint Motion, the Board has determined that the medical opinions of record at the time of its April 2012 decision (including the July and November 2010 reports, a December 2011 VHA opinion, and prior medical opinions) are not probative, and thus are insufficient to adjudicate the claim. Based on that determination, the Board, in February 2013, sought a VHA opinion to determine that nature and etiology of the Veteran's psychiatric disorder. In an April 2013 VHA opinion, from a VA staff psychiatrist, addressed the Veteran's military and psychiatric history, as well as the characteristics and natural progression of schizophrenia (including its prodromal stage), and opined that it was at least as likely as not that the Veteran's schizophrenia began during active duty. The reviewer determined that there was little doubt concerning the Veteran's schizophrenia diagnosis, as the diagnosis was made and affirmed by many consecutive psychiatrists. He pointed out that schizophrenia does not have a "well-defined and demarcated point of onset," but rather that it is a disorder that unfolds over the course of many years. Prior to the point where an individual will meet the diagnostic criteria for schizophrenia, that person demonstrates signs and symptoms during a "prodromal" stage, which can later, following a diagnosis, be looked to as the beginning of the disease process. The doctor acknowledged that there was a lack of psychotic symptoms during the service period or shortly thereafter in the medical and service records, but noted that such a lack of records for the early phase of schizophrenia is actually the expectation. What he was able to cite was a pattern of diminishing occupational functioning in the Veteran's service records, which, he opined, was consistent with prodromal schizophrenia. The doctor stated that it would be unreasonable to expect a contemporaneous identification of the onset schizophrenia symptoms; the prodromal period "really can only be accurately identified as such after the final diagnosis of schizophrenia is made." Based on the service personnel records and the statements of the Veteran and his family, the examiner opined that the Veteran's in-service actions were consistent with prodromal schizophrenia, which should be considered part of the same disease process as the current schizophrenia diagnosis. As discussed in the April 2012 Board decision, there is nothing in the record to detract from the credibility of the Veteran's sister. Although the Board, in that same decision (which has, for other reasons, been since vacated by the Court) that the Veteran's reports of in-service psychiatric treatment and symptoms to not be credible, such a finding has no impact on the doctor's opinion, as he specifically cited in-service behavioral infractions identified in the service records, and the reports by the Veteran's sister concerning his post-service behavior, as evidence of the in-service onset of prodromal schizophrenia. The Board finds that the recent expert opinion that the Veteran's schizophrenia, in its prodromal stage, had its onset during service, to be factually accurate, fully articulated, and based on the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). This opinion puts the evidence in relative equipoise, and with resolution of reasonable doubt in the Veteran's favor, the claim is granted. ORDER Service connection for schizophrenia is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs