Citation Nr: 1325093 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 06-35 279 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for schizophrenia, claimed as a nervous disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran had active duty from June 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which declined to reopen the Veteran's claim of service connection for schizophrenia on the basis that the evidence submitted was not new and material. The RO in Chicago, Illinois, currently has jurisdiction. In April 2009 and February 2012, the Board remanded the claim to obtain missing relevant records. In December 2012, the Board found that new evidence material to the Veteran's claim had been received and reopened the claim of service connection for schizophrenia. The appeal was remanded for additional development. FINDING OF FACT The Veteran's current schizophrenia is etiologically related to his active duty service period. CONCLUSION OF LAW The criteria for entitlement to service connection for schizophrenia, claimed as a nervous disorder, have been met. 38 U.S.C.A. §§ 1131, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). However, an analysis of whether VA has complied with the duty to notify and assist serves no purpose here where the Board's decision grants the full benefit sought on appeal because any notice or assistance error would be harmless and no prejudice to the Veteran could result. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009); 38 C.F.R. § 20.1102. II. Evidentiary Standards As factfinder, it is the Board's responsibility to determine the credibility and weight of the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Board will determine whether the disability claimed is the type for which lay evidence is competent and evaluate the credibility of that evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 133-437 (Fed. Cir. 2006). If lay evidence is competent and credible, its probative value will be weighed against the other evidence of record. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). When all the evidence is assembled, The Board will determine whether the evidence either supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or a preponderance of the evidence is against a claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. III. Service Connection A. Governing Law and Regulations Service connection is established where the Veteran is disabled during active service as the result of injury or disease. 38 U.S.C.A. §§ 1110; 1131; 38 C.F.R. §3.4(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). The Veteran must establish: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Morris v. Shinseki, 678 F.3d 1346, 1353 (Fed. Cir. 2012) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Further, a Veteran who has 90 days or more of service is entitled to presumptive service connection for a chronic disease listed under 38 C.F.R. § 3.309(a), including psychoses, that manifests to a degree of 10 percent or more within one year from service, absent affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. § 3.307. Schizophrenia is considered a "psychosis" for purposes of VA compensation benefits. 38 C.F.R. § 3.384. 38 C.F.R. § 3.307(b) provides that the diseases under § 3.309(a) will be accepted as chronic even where diagnosed as acute because of insidious inception and chronic development unless the disease resulted from intercurrent causes, drug ingestion, or a complication of some other condition not related to service. Where psychoses are not diagnosed during the presumptive period, the medical or lay evidence must show characteristic manifestations to a degree of 10 percent or more, followed, without unreasonable time lapse, by definite diagnosis. 38 C.F.R. § 3.307(c). Additionally, symptomatology accorded no particular significance when first observed during the presumptive period should be considered to determine whether, in retrospect, that symptomatology may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree when a psychoses, like schizophrenia, is diagnosed within a short time following the presumptive period. Id. B. Analysis The Veteran contends that his currently diagnosed schizophrenia began when he was hospitalized for psychiatric treatment for a "nervous breakdown" in 1981 or 1982, during active duty. He was discharged from active military service in June 1982. His representative contends that the Veteran's mother's testimony and the Veteran's account of receiving psychiatric treatment in South Carolina in 1982 indicate that his currently diagnosed schizophrenia existed prior to the first official diagnosis in 1985. See November 2007 Statement of Accredited Representative in Appealed Case. The Veteran's representative contends that a VA medical examiner determined that the Veteran's in-service symptomatology was the precursor to his later-diagnosed schizophrenia and that it was as likely as not that schizophrenia first manifested before June 1983 and that the extent of outpatient therapy following hospitalization described by the Veteran indicates that the acute incident documented in the service treatment records was not an isolated event. See June 2013 Informal Hearing Presentation. The representative also contends that the examiner's opinion that military service did not "cause" schizophrenia is irrelevant to the legal determination at issue in this case, as the law does not require a showing of cause-in-fact to establish service connection where disability is incurred coincident with military service under the standard outlined in 38 C.F.R. § 3.303(a). Further, the representative asserts that the evidence here establishes the onset of schizophrenia coincident with service as the examiner states that the Veteran's schizophrenia is related to the loss of the structured environment of the military upon separation, causing the Veteran to decompensate and exhibit overt psychotic symptoms. Therefore, the Veteran and his representative contend that entitlement to service connection for schizophrenia is warranted. The evidence of record clearly establishes a history of treatment for a psychiatric disorder diagnosed as schizophrenia from 1985 to the present. See, e.g., January 2013 VA examination report; VA treatment records dated from May 1985 to March 2013; and May 2006 Social Security Administration psychiatric evaluation report. Therefore, the evidence shows the existence of a currently diagnosed psychiatric disorder of schizophrenia, and the first element required to establish service connection is established. In January 2013, the Veteran was provided with a VA examination and a supplemental medical opinion was obtained in March 2013 to allow for review of the newly obtained records of the Veteran's psychiatric hospitalization during service. A diagnosis of schizophrenia was provided under the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), with symptoms of suspiciousness, flattened affect, disturbances in motivation and mood, and persistent delusions or hallucinations. The examination report also shows a reported history of substance abuse, specifically "persistent use of marijuana laced with PCP," listed as the "sentinel event." The examiner initially provided the opinion that the Veteran's schizophrenia most likely resulted from drug use as the Veteran's reported history indicated that the initial episode of mental illness in service was precipitated by his substance abuse. The examiner also stated that the Veteran's schizophrenia, as likely as not, manifested prior to June 1983, with symptoms of agitation, talking and laughing to himself, hearing his own voice, being a loner, being neglectful of personal hygiene, and domestic problems. He explained that it is not unusual to have a prodromal, i.e., premonitory, period associated with schizophrenia. See Dorland's Illustrated Medical Dictionary 1545 (28th ed. 1994) (defining prodromal). Therefore, even though a normal June 1982 separation examination indicates recovery from drug-induced psychosis, schizophrenia nevertheless manifested prior to that time, even though no diagnosis was made until a "thought disorder or first rank symptoms" were present. In March 2013, after the records of the Veteran's in-service psychiatric hospitalization were obtained, the examiner reviewed the newly obtained records and revised the previous opinion. He found that the Veteran "functioned in a controlled environment" while in the military but ultimately "decompensated without that structure" and, combined with his illicit drug use of cocaine and marijuana, began to demonstrate overt psychotic symptoms upon discharge. Service treatment records show that the Veteran was hospitalized for psychosis in August 1980. He was brought in by two friends for unusual behavior, described as "voicing religiosity and exhibiting an inappropriate affect." The Veteran was a baker in the Marines and had reportedly been awake for more than 48 hours preparing for a special dinner. His friends had taken him home that afternoon, but he would not sleep and was reportedly walking around naked and repeating situationally inappropriate religious references. A negative history of drug use was reported. The emergency department record notes describe the condition as a situational reaction. The Veteran knew his location, but not his identity or the date or time. The initial impressions listed in the emergency department notes are possible paranoid schizophrenia or an acute paranoid episode due to stress and/or lack of sleep. An intake evaluation report notes that the Veteran did not remember the two days prior to his admission. He did not remember taking drugs, but reported using drugs in the past. He was diagnosed with acute psychosis. Nursing notes from the next day show that he reported "minimal use of marijuana." The Veteran complained of lack of sleep and reported working for about 26 hours straight with only one hour of sleep. He also felt dizzy prior to admission. An abbreviated clinical record from the Veteran's second day of hospitalization show that he again reported marijuana use and described feeling dizzy and not being able to "think right" prior to admission. There was evidence of audio and visual hallucinations, psychomotor agitation, and mild confusion on admission. The physician reviewed the patient's treatment history, noted his improved condition and recommended a return to full duty with a diagnosis of an acute psychotic episode (toxic) and marijuana abuse with possibility of PCP. Though the Veteran reported repeated drug testing during psychiatric hospitalization in service, the complete report of doctor's orders shows routine lab work only and the lab reports of record do not indicate positive results for illegal drug use. It is also not clear from these records what constituted the basis for the physician's suggestion of possible PCP use that is only noted in one abbreviated clinical record, or the basis for determining that the Veteran's psychotic episode was related to toxicity. No other records of mental health treatment are present in the file, and his June 1982 separation examination report does not note any mental health problems. The earliest records of post-service mental health treatment are dated from May 1985. VA treatment records from that date show that the Veteran sought mental health treatment for an anxious mood and auditory hallucinations. The physician determined that schizophrenia was suggested, though there was no evidence of a thought disorder. The Veteran reported a history of PCP psychosis but the physician found that he was not acutely psychotic. His mother was interviewed for information regarding his symptoms and reported a history of a nervous breakdown during service, occasional symptoms of hearing voices, frequent talk about "the army," and apparent nervousness. The Veteran also discussed his nervous breakdown in service, which he attributed to PCP use. In August 1985 the Veteran sought further treatment. He said he was talking to himself and behaving violently toward his family and repeated the history of a nervous breakdown in service. His parents reported increasingly disruptive behavior at home, including arguments and violent threats. The Veteran continued to dress in his military attire even when sleeping and was dressed in military attire at the time of treatment. Once again, he reported PCP abuse while in service. He was diagnosed with schizophrenia, chronic and undifferentiated, with acute exacerbation. He was also diagnosed with chronic undifferentiated schizophrenia by a VA examiner in June 1986. Records show that the Veteran was hospitalized for psychiatric treatment from June 1989 through the middle of July 1989 and, upon mental status examination, was found to have symptoms consistent with chronic paranoid schizophrenia, possible substance abuse, and acute exacerbation. He had been brought in by his parents for increased bizarre behaviors at home. His parents reported a history of normal behavior until he enlisted in the army and suffered a "nervous breakdown." The physician noted that the Veteran apparently recovered as he was discharged honorably in June 1982, but according to his parents he had not been "normal" since he returned from the military. The Veteran reported occasional cocaine and marijuana use. Further testing showed that the Veteran had a low IQ score and a significant thought disorder, with the latter being the more limiting factor in his ability to regulate his behavior and understand the world around him. The physician noted that the Veteran was highly concrete and needed a highly structured environment. Post-hospitalization VA treatment records from August 1989 note that he underwent psychiatric hospitalization in the military, and, "according to his parents, he has not been the same since entering the service." The treatment notes show that the symptoms requiring treatment in 1985 was characterized as an apparent relapse. Upon review of the evidence, the Board finds that it is not clear whether the Veteran's psychiatric hospitalization during service was related to substance abuse, particularly PCP use. Though the Veteran has repeatedly endorsed a history of an acute psychiatric episode in service due to PCP use, his report of repeated drug testing during his hospitalization in service conflicts with the doctor's orders and lab reports obtained during hospitalization. Therefore, due to conflicting evidence, and in consideration of the impairment of thought and memory due to schizophrenia described throughout his treatment records, the Board finds that the Veteran's statements on his in-service PCP use lack credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Consequently, as the examiner based the opinion relating the Veteran's schizophrenia to substance abuse on the Veteran's reported history, and there is no indication of the reason for the notation of possible PCP use in the service treatment records or objective evidence supporting that notation, these findings are also unreliable and, consequently, lack probative value as they are based on premises of questionable accuracy that are not corroborated by other findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (Board will consider the expert's access to the Veteran's relevant medical records, history of treating the Veteran, and knowledge of the pertinent medical literature in determining whether he was informed of the critical medical facts); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2008) (the Board may reject a medical opinion where other facts in the record contradict the facts provided by the Veteran that formed the basis for the opinion). Further, the Board agrees with the Veteran's representative that the January 2013 VA medical opinion and March 2013 supplemental VA medical opinions show that schizophrenia had its onset during the presumptive period. See 38 C.F.R. § 3.303(a); 3.307(b) (symptomatology accorded no particular significance when first observed during the presumptive period should be considered to determine whether, in retrospect, that symptomatology may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree). Furthermore, as the examiner justified that finding on the basis of reported symptoms of agitation, talking and laughing to himself, hearing his own voice, being a loner, being neglectful of personal hygiene, and domestic problems, schizophrenia was clearly manifested to a compensable degree. 38 C.F.R. § 4.130. Although the examiner also stated that "schizophrenia is a biological and neurological event that is not caused by external factors," such that schizophrenia cannot be "caused" by the Veteran's military service, this opinion misconstrues the principles of service connection, as outlined in 38 C.F.R. § 3.303(a). Unless disability resulted from willful misconduct, such as the use of alcohol or drugs, a diagnosed disability that began in service or, if a chronic disease, during the presumptive period after discharge, may be service connected without a need to establish a direct link to any particular incident, injury, or act in service is necessary. 38 U.S.C.A. § 105; 38 C.F.R. § 3.307(b). As discussed above, the evidence on any causal link between the Veteran's schizophrenia and his substance abuse is inconclusive and, furthermore, the examiner jointly attributed the onset of symptoms of schizophrenia to not only drug use but also the loss of military organizational structure upon discharge. Therefore, resolving any doubt on the relative significance of any possible drug use versus the change in the Veteran's environment in his favor, the Board finds that the Veteran's schizophrenia did not primarily result from the use of drugs and service connection is not prohibited under 38 U.S.C.A. § 105 and 38 C.F.R. § 3.307(b). See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. Lastly, the Veteran's entrance examination in May 1979 shows no notation of any psychological or psychiatric issues, the Veteran denied any history or symptoms of frequent trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble of any sort on the medical history report he completed upon enlistment, and his parents repeatedly described his behavior as normal prior to military service. Consequently, he is presumed sound at enlistment. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004); Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012); 38 C.F.R. § 3.304(b). The evidence clearly establishes a current diagnosis of schizophrenia and the evidence showing manifestation of schizophrenia to a compensable degree within one year of discharge from service is at least in equipoise. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. The preponderance of the evidence does not show that the Veteran's schizophrenia is due to drug use, including PCP. 38 U.S.C.A. § 105; 38 C.F.R. § 3.307(b). Therefore, service connection for schizophrenia is presumptively due to the service as a chronic disease manifested to a compensable degree within a year of discharge from service under 38 C.F.R. §§ 3.307 and 3.309(a) and entitlement to service connection for schizophrenia is warranted. All doubt has been resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. ORDER Service connection for schizophrenia, claimed as a nervous disorder, is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals