Citation Nr: 1339634 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 09-44 891 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for schizophrenia. 2. Entitlement to a rating greater than 10 percent prior to May 26, 2010, and greater than 20 percent as of May 26, 2010, for chronic lumbosacral strain with degenerative joint disease (low back disorder). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his brother ATTORNEY FOR THE BOARD Rutkin, J.M. INTRODUCTION The Veteran served on active duty from October 1971 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran and his brother testified at a hearing before the undersigned in April 2012. A transcript is of record. The issue of entitlement to a higher rating for the Veteran's low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's schizophrenia did not manifest during active service or within one year of separation, and was not otherwise caused or aggravated by a disease, injury, or event in service. CONCLUSION OF LAW The criteria for entitlement to service connection for schizophrenia have not been satisfied. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Due Process A. Duties to Notify and Assist VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied. See 38 U.S.C.A §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). With regard to the duty to notify, a February 2008 letter notified the Veteran of the elements of service connection, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). Concerning the duty to assist, the Veteran's service treatment records, service personnel records, and VA examination reports and treatment records are in the claims file. The Veteran also identified VA treatment at the Temple, Texas VA Medical Center (VAMC) and Big Spring, Texas VAMC. The RO received negative responses when it requested these records in February 2004 and August 2008. The Veteran was informed of the negative response in a January 2006 letter and provided an opportunity to submit these records himself. An October 2008 letter also informed the Veteran that a negative response from the Central Texas Health Care System included records from the Waco, Texas VAMC from January 1990 to December 1990 (Waco VAMC records dated in 1986 are in the file). The September 2009 statement of the case similarly notified the Veteran of the negative responses from the Waco and Big Spring VAMC's. As it otherwise appears that the Veteran's complete VA treatment records from 1973 to 2008 are in the claims file, further efforts to obtain records from the above-mentioned facilities would be futile, given the negative responses indicating that they do not exist. See 38 C.F.R. § 3.159(c)(2). The Veteran has not identified any other records or evidence he wished to submit or have VA obtain. Thus, the duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c). A VA examination or opinion has not been provided. See 38 C.F.R. §§ 3.159(c)(4); 3.326(a). There is no evidence of schizophrenia in service or within one year of service separation, or of any in-service injury or event relevant to the incurrence or aggravation of schizophrenia. The mere assertion that there were signs of schizophrenia in service is not sufficient in this regard, and indeed is in conflict with more probative evidence showing that the Veteran's schizophrenia did not manifest until a number of years later. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that a claimant's "conclusory generalized statement that his service illness caused his present medical problems" was not sufficient to entitle him to a VA examination). Thus, a VA examination or opinion is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (holding, in pertinent part, that there must be evidence of a relevant disease, injury, or event in service to trigger VA's duty to provide an examination or obtain an opinion). In summary, there is no indication of prejudicial error with regard to VA's duties to notify and assist, and the Veteran has had a meaningful opportunity to participate effectively in the processing of this claim. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, VA's duties under the VCAA have been satisfied, and further notice or assistance is not warranted. B. Hearing Officer's Duties under Bryant At the April 2012 Board hearing, the Veteran had an opportunity to provide testimony in support of his claim that his schizophrenia was caused or aggravated in active service, facilitated by questioning from the undersigned and his representative. The undersigned also asked him whether a doctor had ever indicated that his schizophrenia was related to service. Moreover, the Veteran made it clear, through his representative, that he understood that the evidence must show a relationship between his schizophrenia and his period of service. Finally, there is no indication of outstanding records or other evidence that might support the claim. Thus, given the development undertaken by VA with respect to this claim, and in light of the Veteran's testimony at the hearing, the "clarity and completeness of the hearing record [is] intact" and there is no prejudicial error with regard to the hearing officer's duties under C.F.R. § 3.103(c)(2) (2013). See Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010) (holding, in pertinent part, that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c)); see also Sanders, 556 U.S. at 407, 410. II. Analysis The Veteran contends that his schizophrenia first manifested in service with signs of erratic behavior at the time, as presented in testimony at the April 2012 Board hearing. For the following reasons, the Board finds that service connection is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection, apart from certain exceptions discussed below, the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); C.F.R. § 3.303(a). The Veteran's diagnosed schizophrenia is considered a psychosis under VA law. 38 C.F.R. § 3.384(f) (2013). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), including psychoses, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," as listed in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. Walker, 708 F.3d at 1338 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"); C.F.R. § 3.303(b). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1338-39. In addition, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for schizophrenia as a chronic disease (i.e. a psychosis) may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the claimed disease during service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Here, the evidence does not show that the Veteran's schizophrenia manifested in service. His service treatment records are negative for diagnoses, treatment, or other evidence of psychiatric problems. He was evaluated as psychiatrically normal in the September 1973 separation examination report. The service personnel records do not show disciplinary actions or other signs of deficient performance, absence without leave, infractions, or any other type of erratic behavior that might indicate the presence of a psychiatric disorder. The post-service treatment records reinforce a finding that the Veteran's schizophrenia did not manifest in service, and also show that it did not manifest within one year of separation or until several years later. Specifically, they reflect treatment for orthopedic problems but are silent for psychiatric symptoms or abnormal behavior until the Veteran was hospitalized for such at VA in April 1983, with a diagnosis of schizophrenia by 1986. There is no mention in these records of the Veteran's service or an earlier history of psychiatric symptoms or manifestations. They mention a history of "regular alcohol abuse for several years," but do not show that the alcohol abuse went back to service or was a manifestation of a psychiatric disorder. Indeed, the Veteran had reported that "he started having mental problems in 1981," as reflected in an August 1989 VA treatment record, which further indicates that his schizophrenia did not have its onset until several years after his October 1973 discharge. Although the Veteran's brother testified at the hearing that the Veteran had been hospitalized at the Shreveport VAMC around 1976 for possible mental health problems following an arrest for stealing a truck, this hospitalization actually occurred in April 1983, as shown by the Shreveport VAMC records. Records from the Shreveport VAMC dated from 1974 to 1976 have been obtained and do not reflect mental health symptoms or treatment during this period. Accordingly, the probative evidence shows that the Veteran's schizophrenia did not manifest in service or until at least 1981, which is over seven years after service separation. The testimony offered by the Veteran's brother at the hearing does not support a finding that the Veteran's schizophrenia had an earlier onset or that there were signs of it in service. The Veteran's brother stated that a friend who served with the Veteran related that the Veteran had fallen in the snow during service and got frostbite, and it was suggested by the representative that the Veteran had been found sleeping in the snow (although neither the Veteran nor his brother alleged this). While a February 1973 service treatment record reflects that the Veteran had a possible cold injury of the feet, and had been told by another physician that he had a light case of frostbite, there is no mention that he had been sleeping in the snow or other evidence of unusual behavior causing his exposure to snow or cold. As a layperson in the field of medicine, the Veteran's brother does not have the training or expertise to render a competent opinion as to whether the Veteran's falling in the snow or being found in the snow was a sign of mental health problems at the time, as this is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson may be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). Moreover, this testimony is too general and inconclusive to even indicate that the Veteran's exposure to snow evidenced a psychiatric disorder, or a precursor of one, at the time. Thus, it does not support the claim, and is outweighed by the fact that there is no other evidence of psychiatric symptoms or abnormal behavior during service, that the Veteran was found to be psychiatrically normal at separation, and that there is no post-service evidence of mental health problems until at least 1981. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The Veteran's brother also testified that an aunt with whom the Veteran lived after service might have been able to relate an earlier history of mental health issues or unusual behavior indicative of a psychiatric disorder. However, he stated that the aunt was no longer living. The mere possibility that she might have provided an earlier history of psychiatric symptoms does not by itself support the claim. See 38 C.F.R. § 3.102 (providing, in pertinent part, that in order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility"). The April 1983 VA hospitalization records do mention the Veteran's "bizarre" behavior at his aunt's home, but again do not indicate that such behavior was present before 1983. In short, the preponderance of the evidence shows that the Veteran's schizophrenia did not manifest in service or within one year of service separation, and that there were no signs of schizophrenia or mental health problems in service or until several years later. Therefore, service connection is not warranted under sections 3.303(b) and 3.307 of the regulations for a chronic disease. See Walker, 708 F.3d at 1338-1339. Likewise, as there is no evidence of any disease, injury, or event in service relevant to the incurrence or aggravation of schizophrenia, the second Shedden element is not satisfied and thus service connection may not be granted under 38 C.F.R. § 3.303(a). See id. Accordingly, the preponderance of the evidence weighs against the claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for schizophrenia must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for schizophrenia is denied. REMAND Testimony at the April 2012 hearing indicates that the Veteran's low back disability may have worsened since he was last examined in May 2010, and that outstanding VA treatment records dated since that examination might show an increase in severity of this disorder. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's outstanding VA treatment records dated since October 2008 from the North Texas Health Care System and any other VA facilities where the Veteran has been treated and associate them with the claims file (preferably by uploading them to the Virtual File, if possible). 2. Schedule the Veteran for a VA orthopedic examination to identify and evaluate all impairment involving his service-connected chronic lumbosacral strain with degenerative joint disease, to include any associated neurologic abnormalities. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All tests and studies deemed helpful by the examiner must be conducted and all clinical findings reported in detail. The examiner must conduct repetitive testing of ranges of motion (to include at least three repetitions, if possible) and specify the Veteran's ranges of motion in the examination report. The examiner must state whether there is objective evidence of pain on motion and at what point it begins, and whether weakened movement, excess fatigability, and/or incoordination are present. The examiner must also state whether, and to what extent, the Veteran experiences additional functional loss during flare-ups or with repeated use of the lumbar spine. The examiner should express such functional losses in terms of additional degrees of limited range of motion if it is possible to do so without resorting to speculation. The examiner must also address whether the Veteran has a history of incapacitating episodes during the pendency of this claim. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a Note (1). The examiner must further determine whether the Veteran has any neurologic abnormalities associated with his low back disability and, if so, identify the specific nerves involved. The examiner must describe all functional impairment associated with the Veteran's low back disability. 3. After completion of the above, and any other development deemed necessary, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). ______________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs