Citation Nr: 1332727 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 05-06 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Jonathan Greene, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. A November 2004 rating decision, in part, determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a psychiatric disability. A September 2007 rating decision, determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a low back disability. In September 2008, the Board remanded the matter for the purpose of affording the Veteran the opportunity to appear at a Board hearing, as he had requested. In October 2008, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In January 2009, the Board remanded the Veteran's the claims for further evidentiary development including to provide proper notice pursuant to Kent v. Nicholson, 20 Vet. App. 1 (2006), and to obtain VA treatment records from 1978 to 1983. In January 2011, the Board found that the instructions of the remand were substantially complied with regarding the Veteran's psychiatric claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board also found that the Veteran had submitted new and material evidence sufficient to reopen the psychiatric claim. However, the low back disability claim was remanded again because the Veteran was not provided sufficient notice to reopen that claim, and therefore, remand was required to ensure substantial compliance with the instructions of the January 2009 remand. See Stegall, 11 Vet. App. 268. The Board also remanded the reopened claim of service connection for a psychiatric claim to afford the Veteran a VA examination. In February 2012 the Board rendered a decision denying the Veteran's claim for service connection for a psychiatric disability. In December 2012, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision and remanded the case. The February 2012 Board decision had also reopened the Veteran's claim for service connection for a low back disability and remanded the claim for additional development. During the Veteran's October 2008 video hearing, the Veteran, through his representative, raised an issue of service connection for a traumatic brain injury. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, it is REFERRED to the AOJ for proper adjudication. This appeal was processed in part using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran has a current psychiatric disability variously diagnosed as schizophrenia and schizoaffective disorder. 2. A diagnosis of psychoneurosis was rendered in April 1979, less than 1 year after the Veteran separated from service. 3. The Veteran has suffered from a psychosis since service, and the April 1979 diagnosis was a misdiagnosis of the Veteran's current psychosis. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have been met. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1131, 1137 (West 2002& Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2012). This is so because the Board is taking action favorable to the Veteran by granting service connection. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92; 57 Fed. Reg. 49,747 (1992). Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Psychoses may be presumed to have been incurred during active military service if the psychosis becomes manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder not otherwise specified; schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. 38 C.F.R. §3.384. 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's November 1975 service enlistment examination report reflected that the Veteran was found to psychiatrically normal. His service treatment records are silent for treatment of a psychiatric problem. A November 1977 treatment note shows a diagnosis of post-concussion syndrome following a complaint of intermittent headaches and occasional ringing in his right ear. The only indication of a potential psychiatric problem is noted in the September 1978 Report of Medical History included in the September 1978 separation examination report in which the Veteran checked boxes indicated that he had or had had "frequent trouble sleeping" and "nervous trouble of any sort". The examiner noted nothing with respect to this reported history; psychiatric clinical evaluation on separation was "normal." The Veteran separated from service in November 1978. In January 1979 a VA Compensation and Pension examination of the Veteran was conducted. The examiner noted "no specific psychiatric complaints" but diagnosed a history of post-concussion syndrome. The Veteran was referred for a special neurology examination which was conducted in April 1979. The Veteran reported multiple diffuse neurologic symptoms which he indicated had been present for the last 2 1/2 years. After neurologic examination, the diagnosis was "psychoneurosis." This diagnosis is within one year of service separation. There is no question that the Veteran has a current psychiatric disability. The considerable volume of medical evidence of record reveals that, dating from a period of psychiatric hospitalization in May 1986 until the present, the Veteran has been diagnosed with a psychosis. The diagnoses have varied over the years to include atypical psychosis, schizoaffective disorder, and schizophrenia. The record reflects that the Veteran has been hospitalized at least six times for recurring psychotic breakdowns manifested by hallucinations. In a February 1990 intake evaluation, the Veteran indicated that he experienced some problems with auditory, tactile, and visual hallucinations, and difficulty sleeping during service. He was diagnosed with atypical psychosis at that time. The examiner indicated that the Veteran presented a puzzling picture since he was bothered by hallucinations but was able to adapt and maintain gainful employment for a number of years, which could explain his ability to continue on active duty without complaints of problems. In a December 1991 mental health narrative summary, the Veteran indicated that his psychiatric disorder began while he was in service. He was diagnosed with schizophrenia, paranoid type at that time. VA treatment records dated to March 2011 indicate that the Veteran continued to seek treatment for schizophrenia. A January 1993 private psychiatric examination report reflected that the Veteran provided a history of having had problems with psychotic behavior and thinking since childhood. However, this is the only record which indicates that psychiatric symptoms may have pre-existed service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The 1993 record does not arise to the level of clear and unmistakable evidence to rebut the presumption of soundness as the examination at the time of his enlistment evaluated his psychiatric system as normal; there were no findings relevant to a psychiatric disorder at the time of entrance onto active duty. Pursuant to the January 2011 Board remand, the Veteran was afforded a VA psychiatric Compensation and Pension examination to assess the nature and etiology of his disability. In a February 2011 VA examination report, the examiner noted review of the claims file. The Veteran was diagnosed with schizoaffective disorder, depressed type. The examiner then opined that it is less likely as not that the Veteran's schizophrenia had its clinical onset in service, was aggravated by active duty, or is related to active duty. The examiner reasoned that while the service records note some concern of nervousness, the Veteran was never treated and the nature of his nervousness was never discussed or explained in the September 1978 Report of Medical History. The examiner also noted that the April 1979 diagnosis of "psychoneurosis" is a term that is extremely vague and does not generally entail psychotic symptoms. The examiner pointed to a January 1979 Compensation and Pension examination report where there was no mention of any psychiatric concerns. In June 2013, a private psychiatric evaluation of the Veteran was conducted. The examiner reviewed the evidence of record and conducted an interview with the Veteran. The diagnosis was schizoaffective disorder with chronic paranoid schizophrenia also being a strong possibility. The psychiatrist indicated that Veteran experienced psychotic symptoms during or shortly after service and that the diagnosis of psychoneurosis made in April 1979 was vague and incorrect. The psychiatrist specifically indicated that the Veteran's psychosis was manifest to a degree of 10 percent as of April 1979. Both the January 2011 VA examination report and the June 2013 private psychiatric evaluation report appear to be equal in probative weight. Each examiner fully reviewed the record, interviewed the Veteran, and provided rationale for the medical opinion provided. To the extent that these reports are essentially equal in weight and probative value the Board must resolve any doubt in the Veteran's favor. U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the evidence establishes that the diagnosis of psychoneurosis in April 1979 was not entirely correct and that this diagnosis shows evidence of manifestation of a psychosis within the first year after separation from service. The Veteran has been diagnosed with a psychosis from that point until the present. Accordingly the Veteran's current psychiatric disability, diagnosed as a psychosis, is presumed to have been incurred during active military service and service connection must be granted. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. ORDER Service connection for a psychiatric disability is granted. REMAND In February 2012, the Board remanded the claim for service connection for a low back disability so that a Compensation and Pension examination of the Veteran could be conducted and a medical opinion as to the etiology of the claimed disability obtained. Later in February 2012, the Compensation and Pension examination of the Veteran was conducted. However, review of the entire record, both physical and electronic, does not show that the claim was subsequently adjudicated; there is no evidence that a supplemental statement of the case (SSOC) was issued. This must be done. Accordingly, the case is REMANDED for the following action: The RO should readjudicate the claim for service connection for a low back disability. If such action does not resolve the claim in the Veteran's favor, a supplemental statement of the case (SSOC) should be issued to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, this claim should be returned to this Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs