Citation Nr: 1325205 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 05-05 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychotic disorder and psychosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1988 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Service connection for acute psychotic episodes and marital problems was denied therein. The Veteran appealed this determination. In July 2008, October 2009, August 2011, and August 2012, the Board remanded this matter for additional development. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," which includes this development. Of note is that the Board has recharacterized this matter as indicated above for the reasons specified herein. The issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for Gulf War syndrome was again raised by the Veteran in March 2009. As indicated in the Board's remands, there is no indication that is has been adjudicated yet by the Agency of Original Jurisdiction (AOJ). It therefore is referred to the AOJ, which is the RO here, for appropriate action. FINDING OF FACT The preponderance of the evidence supports a conclusion that the Veteran's current psychotic disorder not otherwise specified (NOS) and psychosis NOS is related to his in-service incident resulting in a diagnosis of acute psychotic episodes. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychotic disorder and psychosis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.384, 4.130, Diagnostic Codes 9201-9211 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating entitlement to VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159. Discussion of these duties is not necessary because service connection for a psychotic disorder and psychosis is granted herein. It follows that any errors committed regarding these duties were harmless. Any errors committed with respect to ensuring at least substantial compliance with the Board's remands also were harmless for this same reason. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), aff'd Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). II. Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a); 38 U.S.C.A. §§ 1110, 1131. To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr, 21 Vet. App. at 303. Service connection also may be established for any disease diagnosed after discharge when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). A psychosis is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Psychosis includes brief psychotic disorder and psychotic disorder NOS. 38 C.F.R. §§ 3.384, 4.130, Diagnostic Codes 9201-9211. For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. Id. Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). If certain requirements are met, service connection is presumed for chronic diseases. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service must have been for 90 days or more either during a period of war or after December 31, 1946. 38 U.S.C.A. § 1112(a); 38 C.F.R. § 3.307(a)(1). Manifestation of the chronic disease, though not necessarily diagnosis, also must have been to a compensable degree within one year from the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. §§ 3.307(a)(2-3), (c). Affirmative evidence rebutting in-service incurrence or aggravation of a chronic disease must be taken into consideration even if the aforementioned requirements are met. 38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). Secondary service connection means that a current non-service-connected disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, there must be a current disability proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). Compensation is paid only for the degree of disability over and above the baseline plus natural progression. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 439. There must be a permanent worsening beyond natural progression of the disorder, rather than temporary or intermittent flare-ups. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant thus prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Two points are noteworthy at the outset. First, this matter originally included the issues of service connection for posttraumatic stress disorder (PTSD), major depression, and adult anti-social behavior. The Board found that new and material evidence had not been submitted to reopen the claim for service connection for adult anti-social behavior in July 2008. Service connection for major depression was denied by the Board in August 2011. However, service connection for PTSD was granted by the RO in an April 2011 rating decision. An evaluation of 50 percent was assigned effective July 23, 2003, and a 70 percent evaluation was assigned effective February 11, 2009. Separately diagnosed psychiatric conditions can be service connected. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). That the Veteran is service connected for PTSD does not preclude him from obtaining service connection for another psychiatric condition, in other words. Yet psychiatric conditions cannot be separately evaluated unless they result in different psychiatric manifestations. Id. Evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Even though service connection is granted herein for a second psychiatric condition, the RO may determine that the Veteran's PTSD evaluations encompass it as well. The symptoms of all of his psychiatric conditions were found to be interrelated upon VA medical examination in October 2012. Second, referenced above was that this matter has been recharacterized from one concerning acute psychotic episodes and marital problems to one concerning psychosis. The Veteran's original claim was concerning a nervous disorder. The RO characterized it as a claim for service connection for acute psychotic episodes and marital problems based on his service treatment records, which are discussed in more detail below. This characterization persisted in the instant claim. A claim must be construed liberally to include claimed and currently diagnosed psychiatric conditions. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the Veteran's instant claim was for all conditions previously denied to include acute psychotic episodes and marital problems. He has not been diagnosed with acute psychotic episodes since service. He has been diagnosed recently with psychotic disorder NOS and psychosis NOS. Regarding marital problems, the Veteran has not been diagnosed with marital problems since service. All indications are that he divorced, or at least separated from his wife, in the 1990's. Accordingly, he could not have had marital problems thereafter to include recently. In any event, it was opined at the October 2012 VA medical examination that marital discord is not a psychiatric condition or even a symptom of any psychiatric condition but rather an issue that may be the focus of therapy. It thus is not subject to service connection. While not stated, the same applies to relationship discord such at that between the Veteran and anyone he dated recently. The Board finds, regarding the merits, that service connection for psychosis and a psychotic disorder is warranted. There can be no valid claim if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in July 2003. No diagnosis of psychosis or a psychotic disorder was made upon VA medical examinations in December 2003 and August 2005. It was noted at the former examination as well as in a September 2005 VA treatment record that the Veteran did not appear to be psychotic. By November 2005, however, VA treatment records contained a diagnosis of psychosis NOS versus major depressive disorder with psychotic features. The aforementioned recent diagnoses of psychotic disorder NOS and psychosis NOS were first made respectively in a February 2007 VA treatment record and in a February 2008 VA treatment record. Psychotic disorder NOS was diagnosed upon VA medical examinations in March 2009 and March 2011. No diagnosis of psychosis or a psychotic disorder was made at the October 2012 VA medical examination. An April 2012 VA treatment record reflects that the Veteran's psychosis NOS had resolved. In sum, the Veteran has a current disability even though it began a few years into the pendency of the instant claim and ultimately resolved. Service treatment records are silent with respect to a psychotic disorder and psychosis with the following exception. The Veteran was admitted to the hospital for acute psychosis in late July 1989. Upon his release in August 1989 five days later, his diagnosis was acute psychotic episodes (and marital problems). Two VA medical opinions have been rendered regarding whether or not the Veteran's current disability is related to this in-service incident. Factors in assessing a medical opinion include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Following the March 2009 VA medical examination, the examining psychologist opined in certain terms that the Veteran's current psychotic disorder NOS is not related to his service. This includes the aforementioned in-service incident. No rationale was provided, as noted in the Board's remands. A list of the evidence considered, to include the claims file, the examination results, and the 1994 Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) instead was provided. Despite this consideration, a rationale is crucial. Nieves-Rodriguez, 22 Vet. App. at 295; Stefl, 21 Vet. App. 120. The negative opinion therefore is not very persuasive. The psychologist who rendered this opinion rendered a second opinion in May 2009. This time, it was opined in certain terms that the Veteran's current psychotic disorder NOS is related to his service. The Board's remands once again noted that no rationale was provided. Yet the Board now notes that a rationale was provided, that his current disorder appeared to be the same as that he experienced during service. A list of the evidence considered again was provided. With this consideration and the supplied rationale, terse as it was, the positive opinion is somewhat persuasive. The Board is prohibited from rending its own opinion on medial questions. Stefl, 21 Vet. App. at 120; Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is not prohibited from pointing out support for an opinion rendered by a medical professional. It has not gone unnoticed here that the Veteran was diagnosed with acute psychotic episodes during service rather than an acute psychotic episode. Use of the plural over the singular suggests that he was expected to manifest symptoms like those he had during July and August 1989 again. This parallels the psychologist's rationale for the positive opinion, which includes the determination that the Veteran currently experiences psychotic episodes that appear the same as those he experienced during service. Of further note, the Board's remands highlighted that no explanation was given for the contradiction between the psychologist's two opinions. Such an explanation, though advisable and certainly useful, is not strictly necessary. The rationale for an opinion need not include a discussion of favorable evidence. Thompson v. Gober, 14 Vet. App. 187 (2000). There is no reason why the same does not hold true for unfavorable evidence. Weighing all the evidence, both favorable and unfavorable, indeed, is the responsibility of the RO/AOJ and the Board. Roberson v. Shinseki, 22 Vet. App. 358 (2009); Moore v. Nicholson, 21 Vet. App. 211 (2007). The psychologist was not required to explain why he changed his mind, in other words. Instead, the Board has weighed both of the opinions and determined that the positive opinion is more persuasive than the negative opinion. In addition to these opinions, the same psychologist noted following the March 2011 VA medical examination that the Veteran's psychotic disorder NOS appeared to be secondary to his PTSD. Whether the relationship was one of causation or permanent aggravation was not indicated. Further, no rationale was provided since the aforementioned was an observation and thus was not intended to be an opinion. Of import, however, is that the observation is positive evidence. It in essence bolsters the Board's conclusion that the evidence for granting service connection is more persuasive than the evidence against granting service connection. Indeed, the end result is the grant of service connection regardless of the fact that the observation concerns secondary service connection whereas the aforementioned opinions concerned direct service connection. All necessary requirements for establishing the Veteran's entitlement to service connection for a psychotic disorder and psychosis, in conclusion, have been met by a preponderance of the evidence. Service connection therefore is granted outright without the need to invoke the benefit of the doubt rule. This determination renders it unnecessary to discuss the additional applicable manners for obtaining service connection. ORDER Service connection for a psychotic disorder and psychosis is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs