Citation Nr: 1455601 Decision Date: 12/17/14 Archive Date: 12/24/14 DOCKET NO. 97-31 631 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for an innocently acquired psychiatric condition, to include dementia and schizophrenia, including on a secondary basis. WITNESSES AT HEARING ON APPEAL C.N.B., M.D. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from December 1964 to December 1970. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the RO that denied service connection for PTSD. The Board initially remanded the case to the RO for further development in March 2000. In April 2000, the RO granted service connection and assigned a noncompensable evaluation for a dysthymic reaction and generalized anxiety disorder. In December 2002, the Board issued a decision denying service connection for PTSD, among other issues. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2003 Order, the Court vacated the 2002 decision and remanded the case for development and readjudication under the Veterans Claims Assistance Act of 2000 (VCAA). The Board remanded the remaining issues to the RO in March 2004 for additional development. In March 2006, a hearing was held before the undersigned Veterans Law Judge in Washington, DC. A transcript has been associated with the claims folder. In September 2012, the Board denied the claim for service connection for PTSD. Also in September 2012, the Board found that, during the pendency of the appeal, the Veteran had been additionally diagnosed with schizophrenia and dementia. As such, the Board separated the appeal into two issues: service connection for PTSD, and service connection for an acquired psychiatric disorder, to include dementia, depression and schizophrenia. The latter claim was remanded for additional development. In a January 2013 rating decision, the RO awarded service connection for a depressive disorder not otherwise specified. In so doing, the RO added this disorder to the already service-connected dysthymic reaction and generalized anxiety disorder. The overall rating assigned for the Veteran's already service-connected dysthymic reaction and generalized anxiety disorder was left undisturbed. Service connection for another psychiatric condition, to include dementia and schizophrenia, was denied in a January 2013 Supplemental Statement of the Case. In April 2013, the Board remanded the issue for further development. The Board notes that the Veteran has been adjudicated as incompetent. His fiduciary is indicated in the caption shown on the first page of this decision. This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. FINDING OF FACT The currently demonstrated dementia and schizophrenia are shown to have been caused by the service-connected depressive disorder. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by dementia and schizophrenia is proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2014); 3.310 (prior to October 2006). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a). In this case, to the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. While service connection is warranted where 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), service connection is also warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended to conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his claim is more restrictive, the former regulation is applicable. As the Board is granting service connection on a secondary basis, a discussion of service connection on a direct basis is not required. As indicated, the Veteran is service connected for dysthymic reaction, generalized anxiety disorder, and depressive disorder. A VA examiner in July 2013 stated that research had shown that individuals with prolonged anxiety were at increased risk for dementia, but the current research was not definitive enough to make a causal link between the service-connected anxiety disorder and dementia. Conversely, in an opinion dated in July 2014 from the Veterans Health Administration (VHA), the VHA examiner explained that depression and anxiety were known to aggravate the severity of dementia and schizophrenia when they co-exist temporally. While the VHA examiner noted that the Veteran had not had recent symptoms of depression or anxiety, the evidence showed that the Veteran during the appeal period had concurrent diagnoses of depression, schizophrenia and dementia. For example, the VA medical records showed that in June 2009, December 2010, and in June 2011 the Veteran had depression and dementia. The VA records showed that he had a contemporaneous diagnosis of schizophrenia in July 2010 and March 2011. The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In sum, the evidence is in relative equipoise in shown that the as to whether the service-connected depressive and anxiety disorders as likely as not caused the current dementia and schizophrenia. The Board notes that VA is precluded from differentiating between the symptoms of the Veteran's service-connected psychiatric disorders and those of any other mental disorders in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). Furthermore, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). Therefore, to the extent that the Veteran's current dementia and schizophrenia are shown to have been the result of the already service-connected psychopathology, there is no remaining psychiatric disability for consideration in this appeal. Therefore in resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for dementia and schizophrenia as secondary to the service-connected psychiatric disability is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Secondary service connection for dementia and schizophrenia is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs