Citation Nr: 1340107 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-14 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from December 1969 to April 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's claim of entitlement to service connection for schizophrenia. In the course of the appeal, the Veteran requested hearings before a Decision Review Officer (DRO) and a Veterans Law Judge (VLJ). A DRO hearing was scheduled for August 2006 but the Veteran failed to report. A video-conference hearing with a VLJ was scheduled for August 2012, but the Veteran notified the Board in advance that he would be unable to attend the hearing and did not wish to have the hearing. As such, his hearing request is deemed withdrawn. The Veteran was denied entitlement to service connection for schizophrenia (also claimed as psychotic neurosis and mental problems) in rating actions dated February 1987 and March 1993. In May 2005, an additional relevant service department record was associated with the claims file; namely, a DA Form 20B describing the Veteran's cutting of his forearms and the resulting court-martial. Although this service record was not associated with the claims file at the time of the prior rating decisions, as a service department record it was constructively of record. Because the newly-associated service record is a relevant official service department record that existed at the time of the prior denials but had not been associated with the claims file, VA must reconsider the claim on a de novo basis. See Vigil v. Peake, 22 Vet. App. 63 (2008); 38 C.F.R. § 3.156(c) (2013). Additional evidence was received subsequent to the most recent statement of the case without a waiver of RO consideration; however, as the Board's decision is fully favorable to the Veteran, no prejudice results to him in the Board considering it in the first instance. The issue of entitlement to service connection for a dental condition has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the issue was raised in documents received May 2010, wherein the Veteran claimed his dental condition resulted from extraction of wisdom teeth in service. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his schizophrenia is medically linked to service. CONCLUSION OF LAW Schizophrenia was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may also be shown by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of recurrent symptoms. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012). Moreover, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed acquired psychiatric disorder had its onset in service. Alternately, he contends that his schizophrenia pre-existed service and was worsened by service. The evidence of record shows a long history of diagnosis and treatment for schizophrenia. This condition was first diagnosed in April 1984 and the Veteran has since been hospitalized multiple times and participated in multiple inpatient and residential treatment programs. He continues to be treated for it to the present day. The Veteran's brother has submitted a statement that he witnessed a suicide attempt in December 1969, when the Veteran was on leave from basic training. In a lay statement dated in February 2009, his brother affirmed that he was present when the Veteran tried to commit suicide by overdosing on barbiturates. The brother reported that the Veteran was unconscious for three days, but in order to avoid embarrassment, their physician step-father chose not to hospitalize him, but to have the Veteran be treated privately in the home. The Veteran's service treatment records (STRs) are silent with respect to psychiatric complaint, treatment, or diagnosis. However, his personnel records show that in April 1970, following a court-martial, he attempted to escape custody and behaved disrespectfully toward a Commanding Officer. This resulted in a sentence of five months' hard labor. Following this sentence, in May 1970, he inflicted multiple cuts on his arms with a razor blade. The cutting in May 1970 has been characterized in multiple ways. Service personnel records show it was perceived by the military at the time as an attempt to avoid transfer to a correctional training facility. The Veteran, his brother, and medical personnel have most frequently characterized it as a suicide attempt. The Veteran has consistently reported that after he cut the undersides of his forearms he was stitched up by military medical personnel. The Veteran has also consistently reported that he was seen by a psychiatrist in the military after the cutting and that he was diagnosed with schizophrenia in service. In fact, in August 1984, two years before he even filed his first claim, private treatment records from the New Jersey Forensic Psychiatric Hospital state, "it is known that the patient was seen by a psychiatrist while in the Army." However, while the service personnel records confirm the arm-slashing incident, the STRs do not show any medical treatment for the cuts or psychiatric evaluation. Post-service treatment records have documented that the Veteran has long scars on the undersides of both forearms from this event, and that stitches would have been required. All of this taken together indicates that there are outstanding STRs. Moreover, a personnel record was newly associated with the claims file in May 2005 that had not been part of the service department records originally associated with the file in 1986. This confirms that the service department records associated with the claims file in 1986 were incomplete and supports the indication that additional STRs may be missing. When there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Over the years, several mental health personnel have indicated that the Veteran's current schizophrenia may be related to service. In April 1984, before the Veteran ever filed a claim, a psychiatrist at the New Jersey Forensic Psychiatric Hospital wrote the Veteran's discharge summary after five months of hospitalization. The psychiatrist stated, "[I]t is known that the patient was seen by a psychiatrist while in the Army. It is reasonable to assume that his difficulties are the result of the same underlying psychiatric problem." The discharge diagnosis was schizophrenia, undifferentiated type. The Veteran was provided with a February 1993 VA psychiatric examination. The VA examiner diagnosed him with schizophrenia, undifferentiated type and stated, "My overall impression is that this Veteran has been schizophrenic for many years. The date of onset is unclear. He said he attempted suicide while on leave in service and was unconscious three days and apparently cared for by his physician step-father. His court-martial in service may have reflected his mental illness." The VA social worker conducting the Veteran's VA intake appointment in November 2001 noted, "Apparently one of [his] first episodes was during basic training when he attempted to commit suicide." The Board finds that the Veteran's brother is competent to report observing the December 1969 suicide attempt. Layno. Moreover, he is credible as his report is consistent with the November 2001 medical record, and with the Veteran's account of that attempted overdose. In March 2005, a treating VA psychiatrist wrote the Veteran a letter regarding the Veteran's claim for service connection, suggesting that "cutting your arm was more a result of your schizophrenia than a desire to avoid reassignment." The Veteran has repeatedly asserted that his schizophrenia had its onset in service and that it was evidenced by his suicide attempts. The Veteran is competent to report the onset of his psychiatric symptoms as well as his history of suicide attempts. Moreover, the Board finds his reports of these two attempts credible. They are corroborated by the service personnel records and his brother's statement. Moreover, the chronology of an attempted suicide in December 1969, prior to any court-martial or sentence, supports the theory that psychiatric problems predated the court-martial and the May 1970 cutting was not solely motivated by a desire to avoid transfer to a correctional facility. In summary, the record contains evidence of two suicide attempts during active duty. It also contains an August 1984 medical opinion rendered by a psychiatrist that described the Veteran's current schizophrenia as "the result of the same underlying psychiatric problem" evidenced in service by his suicide attempts. The 1993 VA examiner found that while the date of onset of schizophrenia was unclear, the events in service may have reflected his mental illness. The treating VA psychiatrist who wrote the March 2005 letter also connected the Veteran's current schizophrenia to his suicide attempt in service. There is no medical opinion evidence of record contradicting these opinions. Moreover, they are consistent with the competent and credible lay evidence. Therefore, resolving reasonable doubt in favor of the Veteran, the medical evidence of record links his current disability to service and service connection is warranted. As service connection is being granted on a direct basis, consideration of other theories of entitlement is moot. ORDER Service connection for schizophrenia is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs