Citation Nr: 1610785	
Decision Date: 03/16/16    Archive Date: 03/23/16

DOCKET NO.  06-31 650A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for psychiatric disability, including paranoid schizophrenia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran had active service from May 1966 to May 1968.

This matter comes before the Board of Veterans' Appeals (Board) from September 2005 and January 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In those decisions, the RO denied reopening of a previously denied claim for service connection for paranoid schizophrenia.

In January 2009, the Board granted reopening of the previously denied claim. The Board then remanded the reopened issue of service connection, on the merits, for paranoid schizophrenia to the RO to provide required notice to the Veteran and develop additional evidence. The RO took actions in response to the directives in the Board remand, and return the case to the Board.

In a March 2015 decision, the Board denied service connection for paranoid schizophrenia. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In November 2015, the Veteran and VA (the parties) filed with the Court a joint motion to vacate the March 2015 Board decision and remand the case to the Board. The Court granted that motion.

The Board notes that in a September 2009 rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD) and denied entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran did not file a notice of disagreement with that rating decision. Therefore, those issues are not before the Board.


FINDINGS OF FACT

There is not clear and unmistakable evidence that schizophrenia both preexisted service and was not aggravated during service.  Thus, while the Veteran had schizoid symptoms before he entered service, he is presumed sound upon entry onto active duty.



CONCLUSION OF LAW

The criteria for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The Board is granting the benefit sought on appeal. Therefore, it is not necessary to discuss further VA's duties to assist the Veteran in substantiating the claim.

The Veteran reports that he experienced symptoms of psychiatric disorder and he had mental health treatment prior to entering military service. He contends that his psychiatric problems worsened during service, continued after service, and led to a nervous breakdown and the diagnosis of paranoid schizophrenia after service.

Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). That provision is known as the presumption of soundness.

The claims file does not contain any evidence created before the Veteran entered service that reflects mental disorder symptoms or treatment. In January 1966, he completed a medical history and underwent medical examination in preparation for entrance into service. He did not report any history of mental disorders or mental disorder symptoms. The examiner checked "normal" for his psychiatric condition. Statements and records made after his separation from service contain reports that he had mental disorder symptoms and treatment before service. Nonetheless, no psychiatric disorder was recorded in an examination report and noted when he entered service. Therefore, he is presumed to have been in sound psychiatric condition when he entered service, unless clear and unmistakable evidence demonstrates that a psychiatric disorder existed prior to service and was not aggravated by service.

When there is a preexisting injury or disease, it will be considered to have been aggravated by service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). In Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), the Court explained that, when no preexisting condition is noted upon entry into service, the burden falls on VA to rebut the presumption of soundness, which requires both clear and unmistakable evidence that an injury or disease existed before service and clear and unmistakable evidence that an injury or disease was not aggravated by service. The Court went on to state that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness." Horn at 235. In such cases, the Court explained, the burden is on VA to establish by clear and unmistakable evidence that the disability did not increase in severity during service, or to establish by clear and unmistakable evidence that any increase in severity during service was due to the natural progress of the disease. See Horn at 235.

The Veteran's service records show that his specialty was light weapons infantryman, and that he was assigned to an infantry unit. He served in Vietnam from December 1966 to December 1967. He was awarded the Combat Infantryman Badge. Records show that he faced disciplinary action for misconduct in May 1967, for sleeping on his post, and in August 1967, for disobeying an order to blouse his boots. In a visit to field hospital in Vietnam, he reported feeling slightly anxious. (That treatment note is undated, but other evidence tends to indicate that the visit occurred in late 1967). On multiple occasions in January and February 1968, he was seen at a dispensary with head, throat, and stomach symptoms assessed as representing upper respiratory infection or flu. On February 7, he also indicated that he could not grasp what a person said as quickly as usual. On February 29, he reported a five week history of feeling weak, tired, and run down. In a May 1968 medical history completed for separation from service, he checked "no" for any history of depression or excessive worry, nervous trouble of any sort, and other mental health related problems. On the report of his May 1968 service separation examination, the examiner checked "normal" for his psychiatric condition.

In a January 1975 claim, the Veteran indicated that as a teenager he had a limited amount of psychiatric care. He stated that nonetheless he was inducted into service. He asserted that he had a fear complex that was aggravated during his service, particularly the service in Vietnam. He reported anxiety, depression, insecurity, and inability to concentrate, onset of a nervous breakdown in October 1973, and psychiatric disability continuing thereafter.

In a February 1975 letter, private psychiatrist J. M. S., Jr., M.D., reported that he treated the Veteran in 1973 through 1975. Dr. S. stated a diagnosis of schizophrenic reaction, paranoid type. He stated that the Veteran was withdrawn, had flattened affect, and reported inability to concentrate and feelings of helplessness.

On VA psychiatric examination in April 1975, the Veteran reported that after service he attended college from 1968 to 1971, and worked as a telephone solicitor in 1972 and 1973. He related a two year history of outpatient psychiatric treatment, and a one month period of inpatient psychiatric treatment in 1974. He stated that presently he could not concentrate and he felt numb. The examiner observed flattened affect, withdrawal, and impaired insight, without expression of psychotic ideation at the time of the examination. The examiner's diagnosis was schizophrenic reaction, paranoid type, chronic, moderate, in partial remission.

On VA psychiatric examination in September 1975, the Veteran reported apathy, lack of concentration, lack of emotion, inability to think abstractly, and feelings of apathy and helplessness. The examiner observed signs of anxiety, tension, depression, impaired insight, and suspicion of others. The examiner listed a diagnosis of schizophrenic reaction, paranoid type, chronic, moderate.

The Veteran had VA inpatient psychiatric treatment for twelve days in September 1975. He reported that during service in Vietnam he asked for psychiatric treatment but was sent back to the front lines. He stated that since discharge he had received private psychiatric treatment. He related that since taking drugs in 1973 he had experienced difficulty concentrating. He reported anxiety. He denied hallucinations. The treating psychiatrist considered a diagnosis of latent schizophrenia, but found that it was not clearly diagnosable at that time. The psychiatrist entered a diagnosis of anxiety neurosis.

In an October 1976 letter, Dr. S. wrote that he first saw the Veteran in June 1963. Dr. S. stated that in 1963 the Veteran showed feelings of insecurity, inferiority, and anger toward his divorced parents. Dr. S. also recalled noting that he did not pay attention when he felt angry. Dr. S. stated that his impression of the Veteran in 1963 was that he was a schizoid youth with difficulty adjusting and coping. Over the years following the initial 1963 visit, Dr. S. reported, he saw the Veteran for short times at considerable intervals, to discuss various problems he was having at school. He stated that he saw the Veteran in August 1968, shortly after he got out of service. He stated that on the 1968 visit the Veteran seemed passive and uncertain about his plans regarding post-service school or work. Dr. S. stated that he next saw the Veteran in November 1973. In the 1973 visit, the Veteran reported blunted emotions and inability to think or concentrate. He expressed concern that his brain was damaged by having eaten baked goods that contained marijuana or hash. In the 1976 letter, Dr. S. stated that in November 1973 he diagnosed paranoid schizophrenia.

On VA psychiatric examination in November 1977, the Veteran reported that he had numerous combat experiences in Vietnam. He stated that he had difficulty adjusting to military life. He related being in outpatient psychiatric treatment, and reported periods of inpatient psychiatric treatment in 1974, 1975, and 1976. He stated that presently he had difficulty thinking and he sometimes felt mixed up and lost. He denied hallucinations. The examiner found that the Veteran "did not have any particular delusional ideations, but had some vague bizarre notions." He observed that he was overtly jittery and tense, with definitely impaired insight and judgment. He listed a diagnosis of schizophrenia, chronic, undifferentiated type.

In a December 1978 letter, Dr. S. wrote that at the age of eighteen the Veteran was schizoid but not psychotic. He stated that the first clear evidence of schizophrenia that he saw was in November 1973. He related that, although the Veteran did not report to sick call for psychiatric treatment during service, his subsequent accounts to Dr. S. of his Vietnam experiences "made it clear that he was really quite out of it much of the time that he was in combat." Dr. S. went continued:

I think the only arguable issue is what the effect of his military service was on his mental state. From the [October 1976] letter you can see that I had clear indication that he was schizoid at the age of 18. I was not aware of psychotic behavior when I saw him after discharge but certainly in 1973 there is no question about the fact that he had deteriorated and regressed markedly. From his account of the paralyzing terror, confusion, and low morale that he experienced in his military duties in Viet Nam I would judge that these experiences did indeed have a traumatic and aggravating effect on his already tenuous personality adjustment.

In a February 1979 statement, the Veteran wrote that he had always been highly emotional and nervous. He stated that during service he frequently felt extremely nervous and scared, and often became confused. He expressed his belief that his problems worsened in service and led to the nervous breakdown that occurred after service.

On VA examination in February 1979, the Veteran reported difficulty concentrating. He related intermittent feelings that he was strange and that his surroundings were hostile. The examiner observed bizarre thinking, manneristic behavior, and seriously distorted insight and judgement. The examiner diagnosed schizophrenia, paranoid type. The examiner expressed the opinion that his mental disorder probably was not directly correlated with his service, as he reported having had psychiatric problems before service, and as the psychotic breakdown requiring hospitalization that he had occurred several years after service.

In a January 2005 claim, the Veteran asserted that he began to have a psychiatric condition during service. He stated that he was treated by a psychiatrist during his service in Vietnam. He noted that after service he had psychiatric treatment and was diagnosed with paranoid schizophrenia. In a September 2005 statement, he contended that his experiences in service caused him to become very nervous, to develop paranoid schizophrenia, and to have a nervous breakdown.

In August 2007, the Veteran had a hearing before an RO Decision Review Officer. He reported that, beginning in adolescence, he experienced nervousness, anxiety, difficulty concentrating, paranoid feelings, and periods of disorientation. He indicated that he saw the psychiatrist Dr. S. first in 1963, and sporadically after that. He reported that during service in Vietnam in 1967 he spoke to a psychiatrist, but did not receive treatment. He stated that after separation from service in 1968 he resumed college and obtained a degree. He indicated that during that initial post-service period he experienced mental health problems, but tried to hide them from others. He stated that later, in 1973, he experienced a nervous breakdown after someone drugged him. He attributed his 1973 nervous breakdown and subsequent ongoing schizophrenia to a combination of events before, during, and after service.

The Veteran had a VA posttraumatic stress disorder (PTSD) examination in July 2009. He reported that during his service in Vietnam he was in combat and travelled through jungles. He stated that during service he constantly felt worn out. He related that in 1973, a few years after service, he had an initial psychotic break after taking drugs. The examiner reported having reviewed the Veteran's claims file. The examiner found that he did not have symptoms characteristic of PTSD. The examiner opined that his symptoms were more clearly explained by his schizophrenia or schizoaffective disorder.

In August 2009, Dr. S. wrote that he had known the Veteran since he was in high school, in 1963, and that he also treated him after he came out of service. He reported that his diagnosis was schizophrenia, paranoid type.

In an August 2009 statement, the Veteran indicated that before he entered service he was quite troubled with paranoia and social anxiety. He indicated that he felt very nervous in school in response to the behavior of some students and teachers. He reported that Dr. S. treated him from 1963 to 1976, and that he diagnosed him with paranoid schizophrenia.

On a VA mental disorders examination in July 2012, the Veteran indicated that he first experienced symptoms of a mental disorder during childhood. He stated that he behaved awkwardly with and felt different from other children. He reported that he first saw a psychiatrist as an adolescent. He related that in high school and college he experienced ongoing trouble in interactions with others. He stated that before service he did not have any full psychotic episode. During service, he reported, he experienced a lack of motivation, energy, or enjoyment. He faced disciplinary actions for disobeying orders. After service, he stated, he resumed and graduated from college, while continuing to worry about and increasingly avoid interactions with others. He stated that in 1973 he ate a baked good that was laced with cannabis, and then experienced his first psychotic episode. He reported that he was hospitalized in that incident, and that he thereafter experienced serious trouble with mental and social functioning.

The examining psychologist reported having reviewed the Veteran's claims file. The examiner found that the Veteran met the criteria for a diagnosis of schizophrenia, paranoid type. She stated that evidence of record suggested that he had prodromal signs of the schizophrenia during childhood. She noted that during service he did not report any mental health issues. She stated that after separation from service he continued to show prodromal signs of schizophrenia. She noted that he did not have his first psychotic break until five years after service. She provided the following opinions:

Because he functioned adequately while in the military, showed some signs of the disorder prior to the military, and was not hospitalized for treatment for schizophrenia until 5 years after discharge, it is my opinion it is not likely his diagnosis of schizophrenia, paranoid type is related to his military service. It is also my opinion that his military service did not aggravate the disorder beyond its expected course.

The assembled evidence does not suggest that within one year after the Veteran's separation from service, he had schizophrenia that was 10 percent disabling or more. The evidence therefore does not provide a basis to presume service connection for his schizophrenia.

Because no psychiatric disorder was noted when the Veteran was examined for entrance into service, he is presumed to have been in sound psychiatric condition when he entered service unless clear and unmistakable evidence demonstrates that a psychiatric disorder existed prior to service and clear and unmistakable evidence demonstrates that any preexisting psychiatric disorder was not aggravated by service. There is evidence that the Veteran had psychiatric problems before he entered service. Dr. S. saw him in 1963 and sporadically afterward. In the 1970s, Dr. S. recalled that his impression of the Veteran before he entered service was that he had schizoid symptoms but not psychotic symptoms.

As to whether a schizoid disorder was aggravated by service, there is mixed evidence. Service records provide hints, but ultimately a contradictory and unclear picture, of his psychological condition during service. Notations of disobeying orders, anxiety, and difficulty understanding plausibly are consistent with his post-service accounts of mental, emotional, and behavioral problems during service. The absence of psychiatric disorder complaints or findings at separation from service, however, works against finding that the schizoid disorder worsened during service. Clinicians who considered the history reached different conclusions. Considering the Veteran's 1968 and 1973 accounts of his Vietnam service, Dr. S. opined that his schizoid symptoms before service were aggravated during his service. The VA psychologist who reviewed the Veteran's claims file and examined him in 2012 opined that his service did not aggravate his psychiatric disorder beyond its expected course. Dr. S.'s psychiatric training and his observations of the Veteran before and soon after service make his opinions worthy of consideration. Thus, there is both valid evidence for and valid evidence against aggravation of a schizoid disorder during service. As such, there is not clear and unmistakable evidence that the schizoid disorder was not aggravated by service, so the evidence does not meet the standard to rebut the presumption of soundness. Therefore, because he is presumed sound upon entry into service, the current schizophrenia is related to service and service connection is warranted.  


ORDER

Entitlement to service connection for schizophrenia is granted.



____________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs