Citation Nr: 1338174 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-25 711 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Evelyn D. Beacham, Attorney WITNESSES AT HEARING ON APPEAL Appellant and L.T. ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Appellant served honorably in the Army National Guard from December 1992 to February 1996-including various periods of active duty for training (ACDUTRA), one of which was from February to June 1993, and various periods of inactive duty for training (INACDUTRA). She did not serve on active duty. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Service connection for a mental condition was denied therein. The Appellant appealed this determination. In July 2013, the Board recharacterized this matter as one of entitlement to service connection for an acquired psychiatric disability, which comports with the mandate that VA construe psychiatric claims liberally to encompass all such disorders either claimed or diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board then remanded this matter to accord the Veteran an opportunity to testify before Veterans Law Judge (VLJ) at the RO. In compliance with this remand, the Appellant and her mother L.T. testified at a hearing before the undersigned VLJ held at the RO in August 2013. Adjudication accordingly may proceed if otherwise in order. 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). No reason is found to delay adjudication further. The Board may review the additional evidence submitted at the aforementioned hearing in the first instance because the Appellant submitted a waiver of her right to initial review by the RO. 38 C.F.R. § 20.1304(c) (2013). The determination made herein is based on review of her paper claims file and Virtual VA electronic claims file. This matter has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The Appellant's acquired psychiatric disability, which is comprised only of paranoid type schizophrenia, was incurred during ACDUTRA. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, specifically paranoid type schizophrenia, have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.103, 3.159, 3.303, 3.304, 3.307, 3.309, 3.384, 4.125, 4.130, Diagnostic Codes 9201-9211 (2013). 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 a claimant 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 herein because service connection for an acquired psychiatric disability, specifically paranoid type schizophrenia, is granted by this decision. It follows that any errors that were made regarding these duties were harmless. Any errors that may have been committed with respect to the August 2013 hearing also were harmless for this same reason. 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). II. Service Connection Active military, naval, or air service includes active duty, any period of ACDUTRA during which a disease or injury resulting in disability was incurred or aggravated, and any period of INACDUTRA during which an injury but not a disease resulting in disability was incurred or aggravated or an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurred. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA means full time duty for training purposes performed by Reservists and National Guardsmen. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). This typically refers to the two weeks of annual training (AT), often referred to as summer camp, which each Reservist or National Guardsman must perform each year. Biggins v. Derwinski, 1 Vet. App. 474 (1991). Only a veteran is eligible for service connection. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). A veteran is a person who had active military, naval, or air service and was discharged under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). Service connection means that an injury or disease resulting in disability was incurred during active military, naval or air service, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 101(16), 1110; 38 C.F.R. §§ 3.1(k), 3.303(a). To establish service connection, there thus generally must be (1) a current disability, (2) incurrence or aggravation of an injury or disease during active military, naval, or air service, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Service connection may be established for a disease in a variety of additional manners. For any disease that is diagnosed after discharge, service connection is established if it was incurred during active military, naval, or air service. 38 C.F.R. § 3.303(d). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronicity means that the disease was chronic during active military, naval, or air service and manifested at some point, however remote, thereafter without an intercurrent cause. 38 C.F.R. § 3.303(b); Barr, 21 Vet. App. at 303. Continuity of symptomatology after active military, naval, or air service is required if the disease is noted during such service but is not chronic or where the determination that it was chronic then is questionable. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Service connection is presumed for chronic diseases in certain circumstances [38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), (c)], but only in active duty and not ACDUTRA and INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins, 1 Vet. App. at 474. 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, the claimant is afforded the benefit of the doubt. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant 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). Given the evidence in the current appeal, the Board finds that service connection for an acquired psychiatric disability is warranted. 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 Appellant filed the instant claim in July 2008. Treatment records regarding her from N. Hospital dated from 2006 to 2009 do not contain a precise diagnosis. However, they do mention depression, paranoia, and psychosis. J.S., a staff psychiatrist at N. Hospital, further indicated that paranoid type schizophrenia had been diagnosed in an August 2011 letter. The Appellant, in sum, currently has an acquired psychiatric disorder. Acknowledgement is given to the Appellant's March 2009 statement indicating that she has a diagnosis of schizoaffective disorder. As there is no indication that she has a medical background, she is a lay person. A lay person is competent to diagnose a disability only when the lay person can identify it, is reporting a contemporaneous medical diagnosis, or describes symptoms supporting a later medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Flat feet, a dislocated shoulder, certain skin ailments, tinnitus, and varicose veins are examples of disabilities a lay person is competent to identify. Jandreau, 492 F.3d at 1372; Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Charles v. Principi, 16 Vet. App. 370 (2002); Falzone v. Brown, 8 Vet. App. 398 (1995). None of these circumstances exists here. Schizoaffective disorder is not a disability simple enough for a lay person to identify. Indeed, psychiatric diagnoses must be made pursuant to the Diagnostic and Statistical Manual of Mental Disorders (DSM). 38 C.F.R. § 4.125(a). It is impossible that the Appellant was reporting symptoms supporting a later medical diagnosis of schizoaffective disorder since no symptoms were referenced in her statement. Finally, it does not appear that she was reporting a contemporaneous medical diagnosis. The aforementioned contemporaneous treatment records, the only medical evidence available other than J.S.'s letter, indeed do not contain a diagnosis of schizoaffective disorder. A psychosis is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Psychosis includes schizophrenia. 38 C.F.R. §§ 3.384, 4.130, Diagnostic Codes 9201-9211. As such, the Appellant is entitled to service connection if her current acquired psychiatric disability comprised solely of paranoid type schizophrenia is related to an injury or disease incurred during active military, naval, or air service, became chronic during such service, or through not chronic was noted during such service with continuity of symptomatology thereafter. Service treatment records during her ACDUTRA period from February to June 1993 are silent for psychiatric problems. However, service treatment records dated in July 1995 are not. Corresponding service personnel records reveal that the Appellant was on AT from the 8th to the 22nd of that month. It follows that she was on ACDUTRA at the time notwithstanding the finding that she was on INACDUTRA made in an August 1995 Statement of Medical Examination and Duty Status. During her AT, service treatment and personnel records document the following. On July 14, the Appellant sought treatment for chest and abdominal pain. She was given intravenous (IV) fluids for dehydration although a final diagnosis was not made. She was observed to be "spacing out" on the 17th. After being referred for treatment, she conveyed her belief that her telephone calls were being monitored and that she was being persecuted. She denied problems at home. An initial diagnosis of depression with possible paranoia was made, and the Appellant was referred for further treatment. However, she left before this further treatment could be provided. She subsequently talked to several individuals. They noted that she related many problems. In particular, she hated being in the field, could not sleep, was too hot, wanted to go home, nobody liked her, and everyone was plotting against her. The Appellant also talked to a chaplain who thought she should be discharged. She left the field early on July 19. The rest of her AT was unremarkable. At some point shortly thereafter, likely in August 1995, the Appellant recounted that she had "experienced a terrible thing." She noted that people treated her different than usual and that she felt her food, drink, and IV had drugs in it which gave her diarrhea. It is undisputed in light of the aforementioned that the Appellant manifested psychiatric problems during ACDUTRA. There is some dispute regarding whether or not they were incurred during her ACDUTRA or preexisted her ACDUTRA. August 1995 treatment records from T. Infirmary show that she reported being depressed for approximately three years. This corresponds to around August 1992, prior to beginning her service. However, she denied depression and other psychiatric problems as well as was found to be psychiatrically normal at her December 1992 entrance examination. The presumption of soundness, under which sound condition is presumed except as to defects recorded upon such an examination, applies to active duty and not ACDUTRA or INACDUTRA. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A finding of preexisting psychiatric problems notwithstanding the examination therefore is possible. Nevertheless, the evidence against preexisting psychiatric problems is more persuasive than that for such problems. The Appellant's denial in this regard at the entrance examination is more reliable than her admission in the aforementioned treatment records. Indeed, the examination was during the period just prior to her service whereas the treatment records are simply her recollected history of this period. Rucker v. Brown, 10 Vet. App. 67 (1997); Curry v. Brown, 7 Vet. App. 59 (1994). Her denial further is consistent with the observations of her family whereas her admission is inconsistent with these observations. The aforementioned treatment records show that the Appellant's husband reported that her behavior was paranoid and bizarre only after she returned from ACDUTRA. Her sister essentially reported the same in a statement dated in June 2009 and received in August 2009. L.T. also essentially testified to the same at the August 2013 hearing. Incurrence of psychiatric problems during the Appellant's ACDUTRA, rather than aggravation of such preexisting problems, in sum, is at issue. Acknowledgement is given to the contrary conclusions on the August 1995 Statement of Medical Examination and Duty Status and on an August 2005 Report of Investigation that the Appellant's psychiatric problems were not incurred in the line of duty but rather existed prior to her ADCUTRA and were not aggravated by her ACDUTRA. No unreasonable or unjust treatment or conditions were identified that could have given rise to these problems. Thus, it was found on the basis of August 1995 statements from the individuals she talked to that "potential or existing problems in her personal life may very well be the cause" of these problems. These statements do not support such a finding, however. The Appellant did not mention any potential or existing personal life problems in her statement or when she was treated. Most of the other statements do not either. The statement from C.H. does note that she responded when asked what was wrong that "it is kind of personal." However, this is an expression of her unwillingness to discuss what she believed to be private instead of an admission of personal problems. The statement of J.R. further does note that the Appellant related having personal problems made worse by being on AT, while the statement of O.C. notes that she believed her problems would be solved if she went home. No specific personal problems were referenced. The statements thus appear to signify problems like feeling persecuted that were felt to be private and would be alleviated by returning home. With respect to chronicity, the psychiatric problems incurred by the Appellant during her ACDUTRA were not characterized as chronic. Indeed, she was seen only once and did not follow through with further treatment during her ACDUTRA. There are no service treatment records of subsequent periods of ACDUTRA and INACDUTRA. No basis accordingly exists for concluding that chronicity exists. As such, continuity of symptomatology must be considered. The August 1995 treatment records from T. Infirmary reveal that the Appellant came home from ACDUTRA believing that her husband was cheating on her and using drugs, that everyone was a ghost, and that the government is conspiring against her. That she reported depression is reiterated. Diagnoses of psychosis not otherwise specified and anxiety/depression with suicidal ideation were made. Other August 1995 treatment records from T. Infirmary associated with the Appellant's service treatment records document a diagnosis of neurotic depression. A June 2009 letter from the Social Security Administration (SSA) indicates that, while the original award letter is not available, she was approved for disability in January 1997 under a code that includes schizophrenic, paranoid, and other psychotic disorders. As set forth above, 2006 to 2009 N. Hospital treatment records mention depression, paranoia, and psychosis. Such a record dated in December 2006 notes that the Appellant has been on medication since 1995. The August 2011 letter from N. Hospital staff psychiatrist J.S. reflects a diagnosis of paranoid type schizophrenia. Finally, the statements of the Appellant's family are reiterated. It is clear based on all this evidence that she persistently has manifested psychiatric symptoms ever since her ACDUTRA. At least some of these symptoms, particularly paranoia but also depression to a more limited extent, have remained the same. Continuity of symptomatology exists, in other words. That these symptoms were attributed to different diagnoses over time is of no consequence. VA indeed specifically has recognized this possibility with psychiatric disabilities. 38 C.F.R. § 4.125(b). One medical opinion additionally exists. N. Hospital staff psychiatrist J.S. opined in the August 2011 letter that the Appellant's paranoid type schizophrenia as likely as not began during her ACDUTRA. Factors in assessing a medical opinion include the qualifications and expertise of the examiner, the scope of the examination, the accessibility of pertinent evidence, 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). None of these factors is problematic here. A psychiatrist such as J.S. undisputedly has the requisite qualifications and expertise to render the aforementioned opinion. J.S. described the Appellant as an active client, and thus it is presumed that J.S. had undertaken an adequate examination of her. J.S. also indicated having reviewed some of the pertinent evidence, namely the Appellant's service treatment records and treatment records from N. Hospital. That not all of the pertinent evidence was reviewed is of no import since there is no indication of an inaccurate factual premise. Indeed, the rationale provided by J.S. for the opinion was that the symptoms the Appellant exhibited in July 1995 during her ACDUTRA are the same as those she exhibits now. It follows that J.S. correctly found continuity of symptomatology. Ambiguous language lastly was not used in the opinion, and uncertainty otherwise is not apparent. Given the foregoing, the Appellant's current acquired psychiatric disability of paranoid type schizophrenia is related through continuity of symptomatology to the psychiatric problems incurred during her ACDUTRA. She thus had active military, naval, or air service, which qualifies her as a Veteran eligible for service connection. Paulson v. Brown, 7 Vet. App. 466 (1995). This benefit is established based on the preponderance of the evidence. It accordingly is granted without the need to afford the Appellant/now Veteran the benefit of the doubt. ORDER Service connection for an acquired psychiatric disability, specifically paranoid type schizophrenia, is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs