Citation Nr: 1336141 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 04-04 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for schizophrenia. 2. Entitlement to service connection for headaches. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1974 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for headaches and denied reopening service connection for schizophrenia, respectively. Both of these issues were last before the Board in August 2012, at which time two separate decisions-one which reopened and remanded the schizophrenia claim, and the other which denied the headaches claim-were issued. (Separate decisions were issued as the Veteran was represented by a private attorney at that time only on the psychiatric disability claim. Since then, however, the Veteran has submitted a new power of attorney form, VA Form 21-22a, which appoints the above-noted representative as the representative for both claims.) With respect to the schizophrenia issue, the Board reopened the claim of service connection for schizophrenia in its August 2012 decision and remanded that claim for further development. That development having been completed at this time, the claim has been returned to the Board for further appellate review. With regards to headaches claim, following the Board's denial of that issue in August 2012, the Veteran appealed that issue to the United States Court of Appeals for Veterans Claims (Court). During the pendency of that appeal, the Veteran and the Secretary for the Department of Veterans Affairs jointly agreed to remand the headache issue for further development. The Court remanded the August 2012 Board decision-only with respect to the headache issue-by way of an April 2013 Court order. (The issue of service connection for headaches is addressed in the remand that follows the decision below.) FINDING OF FACT It is as likely as not that the Veteran's schizophrenia had its onset during the Veteran's brief period of military service. CONCLUSION OF LAW The Veteran likely has schizophrenia that is the result of disease or injury incurred during active military service. 38 C.F.R. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b) only applies to the list of chronic diseases/disabilities recognized by VA as being chronic and those chronic diseases/disabilities are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). As the Board noted in its previous May 2008 denial of service connection, the record demonstrates that the Veteran had a 1978 acute schizophrenic episode while he was incarcerated, and that since that time he has received fairly consistent treatment throughout his period of incarceration with the Kansas Department of Corrections for some type of schizoaffective disorder or schizophrenia. The Board additionally notes that the Veteran has been incarcerated near continuously since 1975. The Veteran last submitted a claim to reopen service connection for schizophrenia in February 2011. By an August 2012 Board decision, the Board found that new and material evidence had been received since the last final decision which would potentially substantiate the Veteran's claim. Such evidence at that time specifically included a September 2010 VA psychiatric examination report, in which the examiner stated that the Veteran's "primary psychological symptoms are that of chronic paranoid schizophrenia." In that examination report, the examiner additionally noted that the Veteran had had continuous treatment for chronic paranoid schizophrenia since he has been incarcerated, though it was noted that the Veteran's schizophrenia was most likely genetic and biochemical in nature and did not appear to have any relationship to trauma or military service. However, on the basis of the examiner's statements that the Veteran had been treated since incarceration, the Board requested a new VA examination. In August 2013, another VA examiner reviewed the claims file, and opined that the Veteran's schizophrenia was at least as likely as not manifested during his military service or to an degree of 10 percent or more within one year of discharge from service. That examiner noted the other examiner's observations that the Veteran "has been treated pretty much continuously for psychosis since being incarcerated and that his symptoms of insomnia were related to his chronic paranoid schizophrenia." He noted that within months of discharge from service, the Veteran is shown by the evidence of record to have been incarcerated. He further noted that the Veteran's service treatment records document that he was suffering from insomnia during military service. He further stated that-- Based on current understanding of the course of schizophrenia, it is entirely possible that during the time of his military service, he was in the "prodromal phase" of schizophrenia. This is the initial phase of the condition that is marked by deterioration in functioning, decreased cognitive and behavioral performance, mood disturbance, sleep disturbance, impaired socialization, etc. Evidence indicates that he was complaining of sleep impairment and his marked failure to adapt to military life demonstrates significant deteriorations in functioning (as compared to some reports of adequate pre-service functioning). Moreover, within a few months/years of his discharge, it is documented that significant psychotic symptoms were present, indicating that he had entered the "acute phase" of schizophrenia. This further suggests that he may have already been experiencing prodromal phase symptoms by the time he was in the military. . . . Therefore, based on these observations, available records, and [] clinical expertise, the Veteran's schizophrenia (with insomnia) is as least as likely as not manifested during military service or to a degree of 10 percent or more within one year of discharge from service. Based on the foregoing evidence, the Board finds that service connection for schizophrenia is warranted on the evidence of record at this time. The evidence of record is clear that the Veteran currently has a diagnosis of chronic paranoid schizophrenia. That diagnosis has been linked to his documented sleep impairment and impaired behavioral functioning documented during military service. The most recent VA examiner noted that such symptoms were initial manifestations of the disease, which manifested during military service in the prodromal phase, and that they progressed to a diagnosable degree within a few months or years of his discharge from service, when he finally entered the acute phase of the disorder. While the Board acknowledges that both the September 2010 and August 2013 examiners' opinions noted that the actual etiology of the Veteran's schizophrenia was either genetic or biochemical in nature, the Board finds that such findings are not dispositive. The relevant question in this case is whether the Veteran's schizophrenia began in or is related to military service. In this case, as the August 2013 examiner's opinion suggests, the Veteran's symptoms noted during military service were as likely as not representative of the prodromal phase of schizophrenia. Although it may be hard to accept that the examiner could, without more information, identify such a short period of military service as the time frame for the onset of prodromal symptoms of schizophrenia, the Board finds that the examiner's statements cause the record on this point to be in relative equipoise. See 38 C.F.R. §§ 3.102, 3.303. In so finding, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for schizophrenia is granted. REMAND In a March 2013 Joint Motion for Remand, the Veteran and the Secretary agreed that both of the opinions provided by a VA examiner regarding the etiology of the Veteran's headaches, in October 2010 and September 2011, were not adequate. The Board was instructed to obtain another VA examination to address whether the Veteran's headaches began in or were otherwise related to military service. Therefore, the Board must remand the headaches claim at this time in order to afford the Veteran such a VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). (The Veteran and his representative have explicitly asked that the VA examination provided to the Veteran be performed by an examiner other than the October 2010/September 2011 examiner. The Board notes that the Veteran is currently incarcerated; the AOJ, however, is to work with the Veteran's representative and the Kansas Department of Corrections to the extent possible to schedule the Veteran for a VA examination, and if possible, with a different VA examiner.) Ongoing treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any treatment or evaluations he may have had for his headache disorder, which is not already of record, including any ongoing treatment he may have received for his headaches with the Kansas Department of Corrections. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Thereafter, schedule the Veteran for a VA examination in order to determine the onset of any headache disorder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted, and the results reported in the record. For any headache disorder found, the examiner should indicate whether it more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service in 1974. The examiner must specifically discuss the Veteran's lay evidence regarding continuity of symptomatology and chronicity of his symptoms during and after service. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. The examiner should also discuss any other relevant and pertinent medical evidence in the record, including the noted "vague complaints" in service, as well as the post-service complaints of headaches following a head injury while incarcerated, as noted in the October 2010 examination report. The examiner should also discuss the October 2010 examiner's statement that the Veteran's in-service headaches and post-service headaches "could be related." If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If an examination cannot be conducted because of the Veteran's circumstances, a clinician should be asked to review the record and provide the opinions requested.) 3. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for headaches. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs