Citation Nr: 1400905 Decision Date: 01/09/14 Archive Date: 01/23/14 DOCKET NO. 09-17 037 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disability, to include schizophrenia (claimed as residuals of an in-service head injury). REPRESENTATION Veteran represented by: Robert R. Davis, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sand Diego, California, on behalf of the VARO in Oakland, California. During the pendency of the appeal, the Veteran has relocated, and the VARO in Winston-Salem, North Carolina, is now recognized as the Agency of Original Jurisdiction (AOJ). A hearing was held in August 2013 before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing testimony is in the file. At the August 2013 hearing, the Veteran submitted additional evidence in support of his claim which was accompanied by a waiver of local consideration. 38 C.F.R. §§ 19.9, 20.1304(c) (2013). Characterization of the issue on appeal A June 2007 VA Form 119 (Report of Contact) reflects that the Veteran contacted the VARO in Oakland, California, by telephone seeking to file an informal claim to establish service connection for schizophrenia and paranoia. In August 2007, the Veteran, inter alia, filed a formal claim to establish service connection for depression, paranoia, and/or schizophrenia as residual manifestations of an in-service head injury. The RO interpreted the Veteran's assertions as separate claims to establish service connection for (1) undifferentiated schizophrenia and (2) residuals of a head injury, and these claims were denied in the November 2007 rating decision. Although the subsequent Notice of Disagreement, Statement of the Case, and substantive appeal appear to have limited the current appeal to only the "residuals of a head injury claim," at the August 2013 hearing, the Veteran and his private attorney clarified that the thrust of the appeal was that he incurred a psychiatric disability secondary to the claimed in-service head injury, and the present claim was filed seeking service connection for this psychiatric disability. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described and the information submitted or developed in support of the claim. Id. at 5. Moreover, since Clemons, the Court has held that a claim for VA benefits requires "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet.App. 79, 84 (2009). However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits "by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. at 86. This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." Clemons, supra; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis); DeLisio v. Shinseki, 25 Vet.App. 45, 53 (Vet.App. 2011). In light of the Court's holdings in Clemons, Brokowski and DeLisio and the evidence of record showing that the Veteran experienced symptomatology attributable to schizophrenia during and since service, the Board has recharacterized the issue on appeal as entitlement to service connection for a psychiatric disability, to include schizophrenia. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holdings in Clemons, Brokowski and DeLisio. Further, since the Board is granting the Veteran's claim to the fullest extent, the Veteran is not prejudiced by the Board's actions. Bernard v. Brown, 4 Vet. App. 384 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced). FINDING OF FACT The most probative evidence reflects that the Veteran experienced psychiatric symptomatology attributable to schizophrenia, a chronic disability, continuously since service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, diagnosed as schizophrenia, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(b), 3.307, 3.309, 3.384 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to service connection for schizophrenia, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease, such as schizophrenia (a psychiatric disability listed in 38 C.F.R. § 3.384 among other psychoses) is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The Federal Circuit Court recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis The record reflects that the Veteran enlisted in the Marine Corps in October 1995, and he excelled in his duties as a soldier and student, earning "A's" and "B's" at Central Texas College. However, in approximately March 1997, his military duties changed, becoming more difficult and time-consuming, and, while stationed overseas, he learned of the unexpected death of his mother and another close family member. Since that time, the record, to include an August 2013 statement from the Veteran's ex-girlfriend and testimony from the Veteran and his sister, reflects that the Veteran demonstrated behavioral changes due to psychiatric symptomatology allegedly attributed to schizophrenia. Although the Veteran is adamant that he incurred a head injury while playing basketball in March 1997, to which he attributes his behavioral changes, the service treatment records are devoid of any notation of such and injury or sequelae. Indeed, the Veteran has stated in several submission and the hearing testimony that he did not seek treatment for this alleged injury. The Veteran testified that, from March 1997 until his October 1999 separation from service, he suppressed his feelings of anger and sadness secondary to the unexpected loss of his family members and the stress of his new service duties. Although he had previously intended to reenlist in the service upon his initial separation date, he ultimately decided to separate from service because, for unknown reasons, he was concerned that he may not receive an honorable discharge if he reenlisted. After separation from service in October 1999, the Veteran resumed taking classes, became involved in a personal relationship, and began working "on and off," doing manual labor for a clothing business owned and operated by his girlfriend's family. However, the record reflects that the Veteran's "strange" and "bizarre" behavior negatively affected each of these pursuits. Specifically, the Veteran stopped attending class after approximately a month because, as he told his ex-girlfriend, the teacher was trying to "get into his head," by asking him to write his own biography as part of a class project. Likewise, the Veteran quit his "on and off" job with his ex-girlfriend's parents' clothing company, and took a job maintaining money-dispensing machines. However, after a disagreement with a co-worker during his second week of employment with this company, the Veteran quit without notifying anyone; only returning to collect his last paycheck. Accordingly to an August 2013 statement from the Veteran's ex-girlfriend and the August 2013 testimony from his sister, the Veteran's mental state continued to deteriorate in 2000 - within the initial post-service year. He began obsessing about germane matters, such as a billboard picture which he thought resembled his mother. Allegedly, the Veteran contacted his ex-girlfriend and sister in the middle of the night on separate occasions and insisted that they accompany him to drive passed the billboard and wouldn't let them out of the car until they agreed that the picture did, in fact, look like his late mother. Also, the Veteran became fixated on his alleged in-service head injury; often repeating the procedure used to treat the resulting wound to his nose: "Treat for bleeding; Treat for shock; Protect the wound." The Board notes that this phrase is often-repeated throughout the claims file, to include the Veteran's May 2009 substantive appeal and within his August 2013 hearing testimony. The record reflects that the Veteran's ex-girlfriend and sister attempted to schedule the Veteran for a psychiatric consultation with VA in October 2000; however, due to scheduling difficulties, such a consultation was not completed. These assertions are verified by VA treatment records dated in October 2000 from the VA facility in Palo Alto, California, reflecting that, although a psychiatric consultation was requested, the Veteran was not seen for treatment at that time. The Veteran reported that, in late 2000, he was arrested for trespassing after refusing to leave a Buddhist temple in which he had been living. During this incarceration, it appears that his psychiatric symptomatology continued to worsen. He reported that he began experiencing auditory and visual hallucinations in approximately 2003 or 2004. In May 2004, the Veteran was brought to the Stanislaus County Behavior Health Center by his father who reported that his son had been talking to himself, ignoring his hygiene, and not sleeping. Although the record reflects that the Veteran separated from the Marine Corps in October 1999, the Veteran's father reported that he had "recently returned home from the Marine Corps several weeks ago." Nonetheless, the Veteran was uncooperative with the psychiatrist and medical staff, refusing to answer questions for testing and physically facing away from anyone who would talk with him. He was diagnosed with psychotic disorder, not otherwise specified (NOS), assigned a Global Assessment Functioning (GAF) score of 30/25 and discharged the next day without being prescribed medication. The Veteran subsequently became homeless, living in shelters. He was initially referred to VA for psychiatric treatment in April 2007, when he was referred by his case manager from a private homeless outreach program. He began outpatient treatment with VA shortly thereafter, receiving in mental health care and receiving provisional diagnoses of depression and adjustment disorder with depressed mood. In a September 2007 VA examination report ordered in connection with a claim for nonservice-connected pension benefits, a VA psychiatrist noted the Veteran's extensive history of psychiatric symptoms since his alleged in-service head injury, to include illogical thinking, delusions, hallucinations, and inappropriate behavior, resulting in several arrests, homelessness and an inability to work. The Veteran was diagnosed with undifferentiated schizophrenia and has been closely monitored by VA and private mental health care professionals since that time. Moore recently, the Veteran was involuntarily committed to the Emergency Department of a private medical health care facility by local police officers, citing the Veteran's suicidal and homicidal ideations. Medical professionals noted that the Veteran appeared to be responding to internal stimuli; repeating "It's a respect thing," and posed a danger to himself and others. He was diagnosed with chronic paranoid schizophrenia and discharged after twelve days. The Board concludes that the probative evidence, recounted above, shows that the Veteran has demonstrated psychiatric symptomatology attributable to schizophrenia, a chronic disease diagnosed at a later date, continually since service with subsequent manifestations of the same without clearly attributable to intercurrent causes. As such, service connection for schizophrenia is warranted. 38 C.F.R. § 3.303(b). ORDER Entitlement to service connection for schizophrenia is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs