Citation Nr: 1605808 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 05-16 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include schizophrenia and schizoaffective disorder. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps Reserves from June 10, 1981 to September 2, 1981, with additional periods of active duty for training (ACDUTRA) service, including eighty-three days between October 1, 1980 and October 13, 1981; one hundred days between October 14, 1981 and October 15, 1982; fourteen days between October 14, 1982 and October 13, 1983; and fifteen days between October 14, 1983 and October 13, 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claim. During the course of the appeal, the Veteran moved to Florida; original jurisdiction now resides in the RO in St. Petersburg, Florida. The Veteran presented testimony at a personal hearing in St. Petersburg, Florida, before the undersigned in February 2010. A transcript of that hearing has been associated with the Veteran's electronic claims file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing must fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the Veteran was assisted by an accredited representative from Florida Department of Veterans Affairs. The undersigned explained the issue on appeal and sought testimony from the Veteran regarding the manifestations of his schizophrenia and schizoaffective disorder. The undersigned also solicited information on the availability of any additional relevant evidence for development. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). FINDING OF FACT The Veteran's current psychiatric disorder, to include schizophrenia and schizoaffective disorder, cannot be reasonably disassociated from his military service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include schizophrenia and schizoaffective disorder, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking entitlement to connection for a psychiatric disorder, to include schizophrenia and schizoaffective disorder, which he contends first manifested during his active military service. Specifically, he claims that he was ordered to stand in an ant bed where he sustained over forty bites and was then admitted overnight to the hospital where he received injections for the bites. He also asserts that his unit camped on the coast during a hurricane which resulted in "scary" torrential downpours. Lastly, he claims that he was awoken repeatedly at night in order to conduct a fire watch as a punishment and that this led to sleep deprivation and "mental confusion." He believes that these experiences in the Marine Corps Reserves eventually led to a psychotic break in February 2005 and subsequent diagnoses of schizophrenia and schizoaffective disorder. Service connection may be granted for a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury incurred or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served 90 days or more of active service, and certain chronic diseases, including psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a), 3.384 (2015). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2014); 38 C.F.R. § 3.6(a), (d) (2015). Presumptive periods for service connection do not apply to ACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2024). As an initial matter, the evidence of record shows that the Veteran's initial 1985 diagnosis of paranoid schizophrenia was made within a year of his last period of verified ACDUTRA service. However, as discussed above, presumptive service connection for psychoses, such as schizophrenia and schizoaffective disorder, does not apply to periods of ACDUTRA service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309, 3.384; see also Smith v. Shinseki, 24 Vet. App. 40 (2010). Where the evidence does not warrant presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish entitlement to direct service connection, there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between the in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's service treatment records are negative for complaints, treatment, or a diagnosis of any kind of psychiatric disorder. The records confirm that the Veteran was treated for ant stings/insect bites with no resulting sequelae in March 1984. The Veteran's post-service private and VA treatment records show that he has received ongoing treatment for schizophrenia and schizoaffective disorder. A January 2005 treatment record confirms that the Veteran was first treated for paranoid schizophrenia in the summer of 1985. The treating physician indicated that some of the Veteran's "early symptoms emerged during his time of military service." In December 2010, the Veteran underwent a VA psychiatric examination. The Veteran reported that he experienced an incident during training on Paris Island during which he was asked to "halt" on a place that happened to be a fire ant nest. He reported that he was bitten forty times by the fire ants, that he required medical attention for an allergic reaction to the bites, and that he was hospitalized overnight and received allergy shots. The VA examiner noted that this hospitalization was verified in the service treatment records which showed swelling in both of the Veteran's hands due to "allergic reaction to fire ants" and treatment with Benadryl. Additionally, the Veteran reported that his unit camped on the coast during a hurricane and that the torrential downpours were quite scary for him. Lastly, he reported that during the last few days of training, he was awoken repeatedly at night in order to conduct a fire watch as punishment, leading to significant sleep deprivation. He reported that he became "mentally confused" during that time and that this confusion scared him. He indicated that he had violent thoughts about wanting to kill others, including his commander who made him stay awake, but that he had no intention to actually act on this desire. He denied that he had any paranoid thoughts, delusions, or hallucinations at that time and that his "mental confusion" subsided once training was over and did not return until his mental breakdown in February 1985. After reviewing the Veteran's medical history and lay statements, the December 2010 VA examiner observed that the Veteran's first psychotic breakdown in 1985 occurred while he was a student at Auburn University and was the type of mental breakdown that generally marked the onset of schizoaffective disorder (or schizophrenia when that is the correct diagnosis). Thereafter, the examiner opined that she could not determine whether his currently diagnosed schizoaffective disorder had its onset or was related to his military service without resorting to mere speculation. The examiner explained that it was possible that the stresses of training for the Marines that the Veteran reported (e.g., ant bites, camping in a hurricane, sleep deprivation) contributed to his eventual psychotic break. The examiner noted that it was well-documented in medical literature that significant life stress was a factor in psychotic breaks in people with an underlying predisposition to psychotic disorders. However, the examiner also observed that the Veteran's reported military stressors were several years before his eventual psychotic break and that she could not determine whether they were directly or causally related to the eventual psychotic break because doing so would be speculative in nature. The examiner further commented that the Veteran's military stressors could have been responsible but that other life stressors in the intervening years common to persons in their early twenties, such as college finals, relationship issues, etc., could have also been in whole or in part responsible for the Veteran's eventual psychotic break. The examiner also concluded that the Veteran's report of mental confusion following a period of sleep deprivation during his training in Marines may or may not be a portrayal sign of his eventual psychotic break. The examiner explained that mental confusion and psychotic symptoms following sleep deprivation are not uncommon in individuals without a current or eventual psychotic diagnosis. However, the examiner again indicated that this could not be resolved without resorting to mere speculation. In an April 2013 addendum opinion, another VA examiner reviewed the evidence of record, including the available service personnel and treatment records, the Veteran's post-service medical records, and the Veteran's statements and testimony. The psychologist noted the previous VA examiner findings. The examiner also acknowledged the additional periods of active duty service and ACDUTRA service which the RO had verified. The examiner opined that the Veteran's mental condition was "less likely than not" incurred in or caused by the claimed in-service events. The examiner further noted that the updated information provided by the RO did not change the prior medical opinion offered. The examiner explained that her opinion was similar to that of the previous VA examiner in that any opinion offered regarding the etiological relationship between the Veteran's schizoaffective disorder and his military service would be merely speculative. However, the examiner also indicated that the Veteran's first treatment for mental health was reportedly at some point in 1985 and therefore did not occur during a period of active duty or ACDUTRA service. Based upon a longitudinal review of the record, the Board finds that service connection is warranted for the Veteran's psychiatric disorder, to include schizophrenia and schizoaffective disorder. The Board observes that it is permitted to rely upon a medical examiner's conclusion that an etiology opinion would be speculative as long as "the inability to render a requested opinion is adequately explained" and the examiner has "done all that reasonably should be done to become informed about a case." See Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Here, both examiners provided adequate rationale explaining why their opinions were based on "mere speculation." However, in this case, the Board finds that neither opinion is particularly helpful in determining the etiology of the Veteran's psychiatric disorder. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (indicating that "[t]he examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection. Therefore, it is not pertinent evidence, one way or the other, regarding service connection."). Notwithstanding the foregoing, the Board observes that the private physician who initially treated the Veteran for paranoid schizophrenia in the summer of 1985 specifically indicated that some of the Veteran's "early symptoms emerged during his time of military service." Moreover, both VA examiners who evaluated the Veteran's psychiatric disorder noted indicated that it was well-documented in medical literature that significant life stress was a factor in psychotic breaks in people with an underlying predisposition to psychotic disorders, that the Veteran's military stressors could have been responsible but that other life stressors in the intervening years common to persons in their early twenties, such as college finals, relationship issues, etc., could have also been in whole or in part responsible for the Veteran's eventual psychotic break, and that the Veteran's report of mental confusion following a period of sleep deprivation during his training in Marines may or may not be a portrayal sign of his eventual psychotic break. Both examiners also concluded that the type of mental breakdown experienced by the Veteran generally marked the onset of schizoaffective disorder (or schizophrenia when that is the correct diagnosis). In light of these objective medical statements, along with the Veteran's assertions that he experienced events in service which he believes led to his psychotic breakdown in 1985 and the subsequent diagnoses of schizophrenia and schizoaffective disorder, the Board finds that the Veteran's current psychiatric disorder cannot be reasonably disassociated from his military service. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a psychiatric disorder, to include schizophrenia and schizoaffective disorder, are met. ORDER Service connection for a psychiatric disorder, to include schizophrenia and schizoaffective disorder, is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs