Citation Nr: 1338981 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 04-28 713A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to a rating in excess of 20 percent disabling for a left (non-dominant) pectoralis major injury. 3. Entitlement to a rating in excess of 10 percent disabling for right (dominant) knee patellar tendonitis. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from March 1987 to June 1989. This case initially came before the Board of Veterans' Appeals (Board) from a September 2003 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA), in Atlanta, Georgia. That decision denied a reopening of a claim for service connection for an acquired psychiatric disorder as well as denying increased ratings for left shoulder and right knee disabilities. In December 2007, the Board reopened the claim for service connection for a psychiatric disorder and remanded the reopened claim for additional development. The Board also remanded the claims for increased rating claims as a statement of the case (SOC) had been issued. In June 2012, the Veteran perfected timely substantive appeal of each of those claims following the issuance of an SOC in May 2012. The claims for a rating in excess of 20 percent disabling for a left (non-dominant) pectoralis major injury and for a rating in excess of 10 percent disabling for right (dominant) knee patellar tendonitis are addressed in the REMAND appended to this decision and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT The medical evidence of record is in at least equipoise as to whether the initial manifestations of the Veteran's schizoaffective disorder occurred during his active military or within a year of his service discharge. CONCLUSION OF LAW The criteria for service connection for schizoaffective disorder are met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.384 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants the claim for service connection for an acquired psychiatric disorder. In view of the Board's decision to grant the Veteran's claim, a discussion of VA's duties to notify and assist in regards to that claim is not necessary, since further action to address the duty to notify or assist as to the claim for service connection would not be in the Veteran's interest. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Applicable Law Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases, such as psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). 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 if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); psychoses are qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Schizoaffective disorder is defined as a psychosis. 38 C.F.R. § 3.384(e). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Facts and analysis Service treatment records and personnel records disclose that the Veteran violated provisions of the Uniform Code of Military Justice several times during his service, and was treated for alcohol abuse beginning in September 1988. In April 1989, the Veteran underwent a mental status evaluation. That evaluation disclosed normal behavior, unremarkable mood or affect, and normal thought content. No psychiatric disorder was diagnosed at the time of the Veteran's service separation examination. Following his June 1989 service discharge, the Veteran was treated at least three times in 1989 for a left shoulder injury incurred in service. No provider assigned a diagnosis of a psychiatric disorder. In October 1990, 16 months after his service discharge, the Veteran sought evaluation for his left shoulder again, and the provider noted that the Veteran reported he was hearing voices. In November 1990, less than 17 months after his service discharge, the Veteran required psychiatric hospitalization. He was found to have experienced a brief psychotic episode. The subsequent record is replete with evidence that the Veteran has been treated for chronic psychiatric disorders since November 1990. In the report of a March 1991 examination conducted for Social Security Administration purposes, the provider noted that the Veteran reported that his problems had increased in severity during the past year. That period would include a portion of the presumptive period, one year, which elapsed in June 1990, one year following the Veteran's service discharge. The Veteran was afforded VA psychiatric examination in 2012. The examiner noted the Veteran's treatment for alcohol abuse in service, arrests for public intoxication beginning in 1990, and the Veteran's continued treatment for substance abuse, as well as the Veteran's treatment for psychiatric disorders beginning in November 1990. However, he ultimately concluded that the Veteran did not manifest a psychiatric disorder in service or a psychosis within one year following service discharge. After that examination was conducted, the Veteran submitted more than 200 pages of additional clinical evidence. The additional evidence includes a November 2013 favorable medical opinion from F.L., MD. Dr. L.'s 2013 opinion discusses clinical and evidence and lay statements submitted since the 2012 VA examination, and medical literature. Dr. L. concluded that the Veteran's abuse of alcohol during his military service and continuing thereafter was an attempt to self-medicate the prodromal symptoms of his psychosis. Dr. L. concluded that the Veteran's behaviors during service, including suspiciousness and paranoia, were manifestations of the onset of a psychiatric disorder. Dr. L. discussed lay statements submitted by the Veteran and D.D. (a family member). D.D. related that the Veteran was greatly changed when he returned home following his service discharge in June 1989, and had bizarre behaviors. D.D. stated that the behaviors which culminated in the Veteran's 1990 hospitalization for psychiatric treatment has begun many months prior to that hospitalization. The May 2012 VA examination report is unfavorable to the Veteran's claim. The November 2013 report from Dr. L is clearly favorable to the claim. Dr. L. presented a lengthy summary of the Veteran's in-service history, his post-service continuation of alcohol abuse, and Social Security Administration records, to support his conclusion that the Veteran's psychosis was first manifested as early as 1988, while the Veteran was still in service. Neither report is any more probative than the other. Both reports involved an interview of the Veteran and a review of the complete claims and included rationale for their opinions. The Board finds that Dr. L.'s November 2013 place the favorable medical opinion at least in equipoise with the unfavorable opinion. Since the evidence is in equipoise, reasonable doubt is resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Service connection for schizoaffective disorder is warranted. ORDER The appeal for service connection schizoaffective disorder is granted. REMAND The examiner who conducted a May 2012 VA examination of the Veteran's left shoulder described portions of the Veteran's range of flexion and abduction of the left shoulder, but did not address all motion of the left shoulder, such as ability to elevate the left shoulder, one of the criteria specified in the rating schedule under 38 C.F.R. § 4.73, Diagnostic Code 5303, used for evaluation of left pectoralis major muscle injury, such as whether elevation of the left shoulder was affected or whether the left muscle injury was moderate or severe. A more complete examination in needed. The examiner who conducted the 2012 VA examination of the Veteran's right knee stated that the Veteran had essentially full range of motion of the right knee, no pain with range of motion, and no instability. However, and rather oddly, the Veteran was unable to apply pressure to the right knee, unable to step up, or bear weight on the right knee other than walking. He also used a cane at times to assist him with ambulation. The examiner did not reconcile the noted right knee functional losses with the findings noted on examination of the knee, which were arguably normal. The examiner did not discuss the significance of the functional impairments of the right knee or explain whether those functional losses or the objective findings of abnormality on radiologic examination were related to the service-connected right (dominant) knee patellar tendonitis. A more complete description of the Veteran's current right knee functional impairment and medical opinion as to the causation of those impairments is required. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request the complete records of treatment of the Veteran's right knee at East Alabama Health Center prior to and following May 2010 patellar tendon repair, to include reports of any radiologic or magnetic resonance imaging (MRI) examinations of the right knee in 2009 and 2010, pre-surgical history and physical examinations, and the like. 2. Current VA treatment records, including from May 2012 to the present, and records of treatment of the right knee from January 2009 to May 2010, and all available summaries of interpretations of radiologic examinations of the left shoulder, left clavicle, and right knee should be associated with the claims file, including from June 1989 to the present. 3. After the above development has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected left shoulder and right knee disabilities. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should review all pertinent evidence of record, including the reports of radiologic examination of the left shoulder since the Veteran's 1989 service discharge, and the reports of private 2010 right knee surgery. Then, the examiner should address the following: a. Identify all orthopedic pathology related to the Veteran's service-connected right knee patellar tendinitis. b. Conduct all testing required to determine the Veteran's current right knee functional loss and the causation of such functional loss. c. State whether the Veteran's right knee disability is manifested by any painful flare-ups, and, if so, their frequency and duration. Specify whether any flare-ups are accompanied by any additional limitation of motion. Any determination should be portrayed in terms of the degree of additional range of motion loss. State whether the Veteran uses an assistive device for ambulation. d. State whether there is evidence of instability OR subluxation. And, if so, whether the instability or subluxation is slight, moderate, or severe. e. Identify all sign of muscle injury at the service-connected left pectoralis major. f. Describe the Veteran's ability to elevate and abduct the left arm, to swing it back and forth, and provide objective measurement of restrictions, such as inability to lift objects above a certain weight. Describe whether or not each of the cardinal signs and symptoms of a muscle disability is shown, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. g. State whether the Veteran's left pectoralis major shoulder disability is manifested by any painful flare-ups, and, if so, their frequency and duration. Specify whether any flare-ups are accompanied by any additional limitation of motion or other functional loss. h. State whether there is an impact on other muscles or muscle groups. i. State whether the overall degree of injury to the affected left shoulder muscle group would be considered moderate, moderately severe, or severe. 4. Then, the claims on appeal should be readjudicated. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise 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). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs