Citation Nr: 1334719 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 06-22 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1978 to August 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded in August 2009, in October 2010, and in October 2012 for further development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2013, the Veteran's representative raised the claim for a total disability rating for compensation based on individual unemployability, which is referred to the RO for appropriate action. FINDING OF FACT Schizophrenia was not affirmatively shown to have had onset during service; schizophrenia was not manifested to a compensable degree within one year from the date of separation from service; and schizophrenia, first diagnosed after service beyond the one-year presumptive period for schizophrenia as a chronic disease, is unrelated to an injury, disease, or event in service. CONCLUSION OF LAW The criteria for service connection for schizophrenia have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in June 2005 and in June 2011. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The VCAA notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of a claim). To the extent that the VCAA notice came after the initial adjudication, the procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated as evidenced by the supplemental statement of the case in May 2013. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service personnel and treatment records, VA records, and private medical records. In April 2013 the RO made a formal finding of the unavailability of the records from the Social Security Administration. As the record does not contain competent evidence, lay or medical, that links schizophrenia to service and in the absence of medical evidence suggesting such an association, but is too equivocal or lacking in specificity to support a decision on the merits, and in the absence of credible evidence of continuity of symptomatology, there is no possible association with service, and VA is not required to further develop the claim by obtaining a VA medical opinion under the duty to assist. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted 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). Service connection may also be established for certain chronic diseases, including psychoses, which includes schizophrenia, manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran was not in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a psychiatric disorder. After service, the Veteran filed a claim for service connection for a right foot condition in October 1978. This claim made no reference to a psychiatric disorder. On VA examination in January 1979, the psychiatric findings were normal. VA records show that in August 1979 a VA health-care professional noted that the Veteran did not have psychiatric symptoms, including hallucinations, anxiety, depression, improbable beliefs, or social withdrawal. In February 1981, the Veteran complained of hearing voices. He stated that he had started hearing voices while in jail from December 1980 to January 1981. There was no previous psychiatric history and the diagnosis was probable acute schizophrenic episode. In August 1985, a history of schizophrenia was noted. State records in August 1994 show that the Veteran had a history of auditory hallucinations since 1983 and a diagnosis of schizophrenia after 1983. VA records show that in 1995 the Veteran was on medication for schizophrenia. In December 1998, paranoid schizophrenia was noted. State records in August 2005 included a history of schizophrenia since 1999. In written statements dated in May and June 2005, the Veteran stated that he began hearing voices in boot camp in 1978. In July 2005, institutional records note a diagnosis of paranoid schizophrenia first observed in February 1999. Analysis On the basis of the service treatment records alone, schizophrenia was not affirmatively shown to have had onset during service and service connection under 38 U.S.C.A. § 1131 as implemented by 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not established. The Veteran is competent to describe hearing voices. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). Since the Veteran is competent to describe hearing voices in service, the Veteran's statements constitute a notation of psychiatric symptoms in service, which is indicative of but not dispositive of a chronic disease, such as schizophrenia, and the theories of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (Chronicity and continuity of symptomatology the under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a)). For the showing of a chronic disease, such as schizophrenia, in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The presence of schizophrenia is not a medical question that can be competently answered by the Veteran as a lay person based on mere personal observation, as the diagnosis of falls outside the realm of common knowledge of a lay person, that is, not capable of lay observation, without specialized education, training, or experience. 38 C.F.R. § 3.159. Also under 38 C.F.R. § 4.125, the diagnosis of schizophrenia must conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which requires medical evidence diagnosing the condition. And schizophrenia is not a type of condition under case law that has been found to be capable of lay observation. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (it is generally the province of medical professionals to diagnose or label a mental condition). As schizophrenia is not capable of lay observation under Jandreau or 38 C.F.R. § 4.125 or by case law, the disability is not a simple medical condition. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose schizophrenia. Where, as here, there is a question of the diagnosis of schizophrenia, which is not capable of lay observation under Jandreau or 38 C.F.R. § 4.125 or by case law, to the extent the Veteran's lay statements are offered as proof of the presence of schizophrenia in service, the Veteran's lay statements are not competent evidence, and the Veteran's lay statements are not admissible as evidence, that is, the Veteran's lay statements are not to be considered as competent evidence that schizophrenia as a chronic disease was present in service and the lay evidence cannot be considered as evidence favorable to claim based on chronicity. Also the Veteran's description that he began to hear voices in boot camp without further complaint, finding, history, treatment, or diagnosis lacks the combination of manifestations sufficient to identify schizophrenia and insufficient observation to establish that schizophreni was present in service. As the Veteran's lay statements are not competent evidence that schizophrenia was present in service and as the service treatment records lack the documentation to identify schizophrenia during service, chronicity in service is not adequately supported by the evidence of record. Whereas here the fact of chronicity in service is not adequately supported, service connection can be established by continuity of symptomatology. Continuity of symptomatology requires: (1) that the condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology noted in service; and (3) evidence of a nexus between the present disability and the post service symptomatology. See Walker, at 1335-36, 40 (overruling in part Barr v. Nicholson, 21 Vet. App. 303, and Savage v. Gober, 10 Vet. App. 488, 497 (1997) to extent that 38 C.F.R. § 3.303(b) was applied to diseases not listed in 38 C.F.R. § 3.309(a), while addressing the elements of continuity of symptomatology). As for post-service continuity of symptoms, that is, hearing voices, the Veteran's assertion is competent evidence of postservice continuity of symptomatology. The Board however does not find the Veteran's statement in 2005 that he began hearing voices in service, implying that the symptoms continued since service, credible because of the Veteran's own inconsistent statements, which are also inconsistent with the evidence of record, for example, on VA examination in January 1979, the psychiatric findings were normal; in August 1979 a VA health-care professional noted that the Veteran did not have psychiatric symptoms, including hallucinations; in February 1981, the Veteran stated that he began to hearing voices in December 1980 and there was no previous psychiatric history. Accordingly, the Board does not find credible evidence of post-service continuity of symptomatology under 38 C.F.R. § 3.303(b). Although service connection is not established either by affirmatively showing onset in service under 38 C.F.R. § 3.303(a) or by chronicity or by continuity of symptomatology under 38 C.F.R. § 3.303(b) on the basis of lay evidence, service connection may still be established based on an initial diagnosis after service, when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303(d). As for Veteran's assertion that schizophrenia is related to service, which is an expression of a causal relationship, the statement is an inference based on facts, that is an opinion, rather than a statement of fact. As previously explained, schizophrenia is not capable of lay observation, that is, a simple medical condition under Jandreau or 38 C.F.R. § 4.125 or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the claimed disability and service. For these reasons, the Veteran's lay opinion is not competent evidence. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim and as the evidence is not admissible, the Board need not reach the credibility under 38 C.F.R. § 3.303(d). As for Veteran describing a contemporaneous medical diagnosis or symptoms that later support a diagnosis by a medical professional, the medical evidence shows that schizophrenia was first diagnosed in 1981 which is more that one year after separation from service in 1978, and beyond the one year presumptive period for a schizophrenia as a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. As for symptoms that later support a diagnosis by a medical professional, the Veteran has not submitted any evidence from a medical professional and there is no evidence of record that schizophrenia is related an injury, disease, or event in service. As the record does not contain competent and credible evidence, lay or medical, that links schizophrenia to an injury, disease, or event in service, the preponderance of the evidence is against the claim and there is no reasonable doubt to resolve, and service connection is not warranted. ORDER Service connection for schizophrenia is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs