Citation Nr: 1333555 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 05-01 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include schizoaffective disorder. REPRESENTATION Appellant represented by: Douglas Kugal, Attorney ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The appellant served on Active Duty for Training from December 31, 1973 to February 27, 1974. This case originally came to the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As previously explained by the Board (in November 2011), the scope of the instant claim is broad, to include a variously diagnosed psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The appellant testified before a Veterans Law Judge in June 2007. A transcript of the hearing is currently associated with the claims file. The Board previously remanded the matter in September 2007. In the September 2007 remand, the Board noted that the appellant was advised that the Veterans Law Judge who chaired the June 2007 hearing is no longer employed by the Board. The Board further noted that the appellant was informed of his opportunity to have a hearing with another Veterans Law Judge, but he did not respond. The Board proceeded accordingly. See 38 C.F.R. § 20.707. The Board again remanded the matter in September 2009. When the case was returned to the Board, a medical expert opinion was obtained pursuant to 38 C.F.R. § 20.901(d) (2013). The Board then reached a decision in November 2011 denying the claim. The appellant appealed the Board's November 2011 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in July 2012 approving a joint motion for remand (JMR) by the appellant and the VA Office of General Counsel (herein after "the parties"). The parties requested in the JMR that the November 2011 Board decision be vacated, and the case be remanded back to the Board for further development and adjudication. Upon return from the Court, the Board obtained an independent medical expert opinion in May 2013 pursuant to 38 C.F.R. § 20.901(d). In light of the favorable disposition below, all notice requirements set forth in 38 C.F.R. § 20.903(a) (2013) have been satisfied. FINDINGS OF FACT The record before the Board is in relative equipoise on all material elements of the claim, to include the question of whether a current psychiatric disorder, which has been variously diagnosed as schizoaffective disorder, bipolar disorder, and schizophrenia, had its onset coincident with the appellant's period of Active Duty for Training from December 31, 1973, to February 27, 1974. CONCLUSION OF LAW The Veteran's current psychiatric disorder, which has been variously diagnosed as schizoaffective disorder, bipolar disorder, and schizophrenia, was incurred coincident with his period of Active Duty for Training from December 31, 1973 to February 27, 1974. 38 U.S.C.A. §§ 101, 1110; 38 C.F.R. §§ 3.303, 3.304; See Davidson, 581 F.3d at 1316. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant contends that service connection is warranted for a psychiatric disorder, to include schizoaffective disorder. He contends that this disorder started during his period of service, which lasted from December 31, 1973, to February 27, 1974. The Board previously denied the claim in November 2011. The Board reached this determination after evaluating the probative weight assignable to the favorable and unfavorable evidence of record. The Board ultimately found that (1) the appellant is presumed to have been sound upon entrance into active duty for training in December 1973, and the record does not contain clear and unmistakable evidence showing that a psychiatric disorder preexisted service entrance; and (2) the appellant's currently diagnosed psychiatric disorder, variously diagnosed as schizoaffective disorder, bipolar disorder, and schizophrenia, had its clinical onset after his period of active duty for training. On appeal, the parties to the JMR determined that a medical opinion (or examination) was necessary to address whether the appellant's prodromal symptoms, which the Board in November 2011 found to have credibly existed in service, ultimately developed into his currently diagnosed psychiatric illness. The parties agreed that the medical evidence of record before the Board in November 2011 was inadequate to resolve this question. After careful consideration of all procurable and assembled data, plus the concerns raised by the parties in the JMR, the Board now finds that the evidence is at least in a state of relative equipoise on all material elements of the appellant's claim. Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for injury or disease incurred while on Active Duty for Training (ADT). 38 U.S.C.A. § 101(24) (West 2002). ADT is defined as full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22). Service connection may be granted for injuries incurred while on Inactive Duty for Training (IADT), but not for disease. 38 U.S.C.A. § 101(24). IADT by comparison, is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). An appellant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). However, the Board shall give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Here, the evidence establishes the existence of a present disability. Specifically, the available medical records competently demonstrate a current psychiatric disorder, which has been variously diagnosed as including schizoaffective disorder, bipolar type; anxiety disorder, not otherwise specified (NOS); history of polysubstance dependence, currently in remission (in December 1997); schizoaffective disorder and polysubstance dependence (in October 2000); bipolar disorder, mixed, severe with psychosis; and alcohol dependency (in January 2001); major depressive disorder (MDD), recurrent, unspecified; adjustment disorder with mixed anxiety and depressed mood; and alcohol abuse (in November 2002); schizophrenia, paranoid type; adjustment disorder with mixed anxiety and depressed mood (in August 2007); schizophrenia, undifferentiated (in March 2009); and schizoaffective disorder, depressive type, by history (in April 2010). Thus, the appellant is shown to be diagnosed with a current psychiatric disorder. This fact is not in dispute. See Davidson, 581 F.3d at 1316; see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The central question in this appeal concerns whether a current psychiatric disorder preexisted the appellant's entrance into service in December 1974 or, conversely, had its onset therein. For background purposes, the Board notes that the appellant's service treatment record (STR) is not of record. His NGB Form 22 and his discharge orders, which are of record, identify the reason for his discharge as erroneous enlistment (failed to meet enlistment and medical standards). Notwithstanding the unavailability of his service records, the Board takes notice of the appellant's own statements regarding his past symptomatology. In this regard, he has consistently maintained that he experienced symptoms during (and after) his service. For instance, on his original, April 2004 service connection claim form he identified symptoms starting in basic training in December 1973. He also wrote that he started hearing voices since his discharge. Elsewhere on the form, he identified his symptoms as starting in January 1973. He also wrote an extensive testimonial statement in December 2004 describing, in pertinent part, jumping out of a window during service, which led to him being referred for counseling and then a psychiatric evaluation where he endorsed hearing voices. Likewise, at his June 2007 Board hearing, he testified that he began hearing voices and talking to himself, "acting strange," soon after starting basic training. Similarly, the appellant himself has consistently maintained that he was first hospitalized in 1977, approximately 4 years after service. The pertinent hospitalization records remain unavailable to the Board. Notwithstanding the absence of the official records, because his statements concerning his in-service and post-service symptoms are consistent throughout the record, the Board finds such assertions credible. And, because a VHA expert psychiatrist has found him competent to report his symptoms, the appellant's own statements are accepted as competent evidence for purposes of demonstrating his in-service and post-service symptomatology. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77; see also Washington, 19 Vet. App. 362. In light of this background, the Board finds that the record does not contain clear and unmistakable evidence that a psychiatric disorder preexisted the appellant's entrance into ADT. See 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Without sufficient evidence that a psychiatric disorder preexisted the appellant's service, the remaining question concerns whether the disorder was incurred during service. See Wagner, 370 F.3d at 1096. On this question the record contains conflicting medical opinions. In fact, in light of the contradictory opinions, and on the basis of the extraordinary medical complexity of the case, the Board referred the case for a medical expert opinion in February 2013. The medical expert opinion was rendered in May 2013 by Dr. W. Lawson, MD, PhD, DLFAPA. The opinion is extensive, which is reflective of the expert's thorough understanding of the case, plus the expert's detailed medical justification for the opinion. For sake of brevity, the Board will highlight those aspects of the expert's opinion that are central to resolution of this appeal. The examiner's opinion with regard to the onset of the appellant's disability was that it is reasonable to assume that the appellant's premorbid symptoms were appearing during his ADT service leading to a need for treatment, and, therefore, this period of ADT "may have" precipitated a downhill course in an otherwise mentally or developmentally compromised but stable individual. The expert restated his ultimate opinion as follows: "there is no evidence of a psychotic disorder before [ADT], convincing evidence of an emerging disorder during [ADT] that given the usual course of this type of disorder led to a hospitalization 4 years later and substantial and ongoing disability." The expert also recognized that there was some evidence of pre-service symptomatology, but determined that if symptoms were present they did not rise to the level of disability or treatment. In other words, "before the military there is no clear evidence of disability." It is "possible," according to the expert, that the pre-service symptoms could be prodromal, but "there is no way to determine if such symptoms will develop into a severe mental illness." Moreover, individuals with mental disorders such as the appellant's, have other disorders, such as attention deficit disorders and learning disabilities, which are more common in these individuals. Such disorders would not have been premorbid, do not lead to psychosis, and will not be exacerbated by stress and psychosis. Therefore, the expert concluded, it is just as reasonable to conclude that the appellant had no definitive premorbid disorder before service that would have led to psychosis. The expert determined that the appellant is clearer and more consistent about psychotic symptoms in-service. Moreover, the appellant's father reported that the appellant was "not himself" during that time period. The expert also found significant that the appellant was discharged for failing to meet enlisted and medical standards. The expert found finally important that the appellant does report that he received treatment before his hospitalization in 1977. The expert also clarified that basing a diagnosis of a psychotic disorder on the basis of hospitalization is usually not the time onset is determined. The expert explained that it is well recognized within the medical community that bipolar disorder with psychotic feature and schizoaffective bipolar disorder will on average be present 5 years before the diagnosis is made and hospitalization is necessary. The Board finds that this expert medical opinion carries determinative probative weight in this appeal. Again, it is clearly articulated, is adequately informed of the pertinent facts of the case, and is well-supported by a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304. The remaining medical opinions of record include an expert medical opinion from a psychiatrist with the Veterans Health Administration (VHA), which was obtained by the Board in March 2011. However, the more recent medical expert's opinion, from May 2013, undermines or refutes several of the medical premises of the March 2011 opinion. The Board, in its lay capacity, has no basis to resolve the conflict between these battling experts. Accordingly, both opinions will be assigned equal probative value. Consequently, the March 2011opinion cannot serve as a basis to outweigh the May 2013 expert's opinion. Finally, as previously detailed by the Board in its November 2011 decision, the Appellant was also afforded a VA examination in April 2010. The April 2010 VA examiner essentially determined that he could not reach an opinion "without resort to speculation." The Board finds that this VA examiner's opinion has little probative value and is insufficiently material to have evidentiary value in this case. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). Similarly, the record also contains a report of private behavioral health status examination performed in August 2007, but this statement has essentially no probative value as it is simply a transcription of the appellant's self-reported history unenhanced by any additional medical comment by the transcriber. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In summary, the Board finds, after resolving all reasonable doubt in the appellant's favor that the evidence is at least in a state of relative equipoise on all material elements of the claim. Accordingly, service connection is warranted, and the claim is granted. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(d); Fagan, 573 F.3d at 1287. In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. ORDER Service connection for a psychiatric disorder, variously diagnosed as schizoaffective disorder, bipolar disorder, and schizophrenia, is granted. ____________________________________________ S. C. Krembs Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs