Citation Nr: 1702829 Decision Date: 02/01/17 Archive Date: 02/15/17 DOCKET NO. 06-13 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, diagnosed as paranoid schizophrenia. REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and W. L. ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1977 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In February 2009, the Veteran and W. L. testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This matter was initially before the Board in April 2009 when it was remanded for further development. It was again before the Board in June 2010 when the Board denied the Veteran's claim. The Veteran appealed the June 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2011, the Court entered an Order granting a Joint Motion for Remand (JMR), which requested that the Board's June 2010 decision be vacated and remanded for additional development. Subsequently, the case was remanded by the Board, in December 2011 and January 2013, for additional development. The case returned to the Board for consideration in November 2014, at which time the Board again denied the Veteran's claim. The Veteran appealed the November 2014 Board decision to the Court. In April 2015, the Court entered an Order granting another JMR, which requested that the Board's November 2014 decision be vacated and remanded for additional development. Pursuant to the April 2015 Order, the Board remanded the claim again in September 2015 for further evidentiary development. It now returns for appellate review. FINDINGS OF FACT 1. A psychiatric disorder, including schizophrenia, paranoid type, was not noted at service entry, but clear and unmistakable evidence establishes that schizophrenia existed prior to service. 2. There is not clear and unmistakable evidence that the preexisting schizophrenia was not aggravated during service. 3. The Veteran is currently diagnosed with schizophrenia, paranoid type, which is shown to have likely existed since service. CONCLUSION OF LAW The criteria to establish service connection for schizophrenia, paranoid type, are met. 38 U.S.C.A. §§ 1111, 1131, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the favorable grant herein, which grants entitlement to service connection for schizophrenia, further discussion as to compliance with VA's duties to notify and assist with respect to this specific claim, including pursuant to 38 C.F.R. § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet App 488 (2010), are rendered moot. Additionally, the Board observes that the grant of the claim renders moot lack of compliance, if any exists, with any Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran maintains that schizophrenia preexisted active service and was aggravated during service. A. Applicable Law Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2015); 38 C.F.R. §§ 3.303, 3.304 (2016). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2015); 38 C.F.R. § 3.303(a). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2015); 38 C.F.R. § 3.304 (b) (2016); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). B. Discussion In this case, the service connection is warranted for schizophrenia, paranoid type. (1) Existence of a Present Disability The record on appeal establishes a present diagnosis of schizophrenia, paranoid type. During the pendency of the claim, VA treatment records endorsed diagnoses of paranoid schizophrenia, thought disorder, not otherwise specified (NOS), psychosis NOS, schizoaffective disorder, and of schizophrenia paranoid type chronic versus schizoaffective disorder. A January 2007 VA mental conditions examiner endorsed a diagnosis, in part of, schizophrenia paranoid type. During the August 2009 mental conditions examination, a board of three examiners endorsed diagnoses of schizophrenia, paranoid type, and antisocial personality disorder. A May 2012 VA mental conditions examination report, again authored by three examiners, diagnosed schizoaffective disorder and antisocial personality disorder and noted that the Veteran had been diagnosed with psychotic disorder and paranoid schizophrenia at various times throughout the Veteran's mental health history and these diagnoses all reflected the same disease process. In November 2012 and September 2014 private examination reports, Dr. Cesta diagnosed schizophrenia paranoid type. In the September 2014 private report, Dr. Cesta stated his two interviews with the Veteran supported the diagnosis of schizophrenia and not schizoaffective disorder. This evidence establishes that the Veteran has a current disability of schizophrenia, paranoid type, which meets the first requirement to establish service connection. (2) In-Service Incurrence of Injury or Disease Next, the Veteran's schizophrenia, paranoid type, must be deemed to have been incurred or aggravated during service. The material issues of fact at this point are (a) whether the disorder preexisted service and (b) whether the disorder underwent any degree of aggravation during service. A psychiatric disorder was not noted at the Veteran's March 1977 enlistment examination. Because a psychiatric disorder was not noted at service entrance, the presumption of soundness applies. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). Clear and unmistakable evidence establishes that depression preexisted service. In fact, there appears to be little material dispute that his schizophrenia existed prior to service. Specifically, a September 1971 private medical record noted a diagnosis of schizophrenic reaction, paranoid type, in remission and a September 1973 private medical record noted in part, that the Veteran had shot and killed a member of a rival gang in November 1970 and provided a diagnosis in part, of antisocial personality disorder. Furthermore, an August 2009 VA mental conditions examiner found the Veteran had psychotic symptoms prior to entering into service and therefore his psychiatric disability existed prior to entry into the Marines. One contrary note was from a March 2010 private mental health counselor who opined in part, that there was no evidence of prior psychosis and found the Veteran's symptoms onset during service. Nonetheless, the November 2014 Board decision found the Veteran's schizophrenia preexisted service and this finding was left undisturbed by the April 2015 JMR. Thus, the Board finds it has been established that schizophrenia clearly and unmistakably preexisted service. See Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000); Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012); see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). Thus, the first prong of the presumption is rebutted. There is not clear and unmistakable evidence that the preexisting schizophrenia was not aggravated by service. To the contrary the record now contains multiple medical opinions on this question. Indicating no aggravation are VA examinations (and opinions) conducted in January 2007, August 2009 with a January 2010 addendum, May 2012, and November 2015. These examiners concluded that the Veteran's schizophrenia, paranoid type, was not aggravated by service. Contradicting these opinions are a May 2008 opinion from a private mental health counselor and November 2012 and September 2014 private opinions by Dr. Cesta. In February 2009 testimony, the Veteran reported, in part, that during service he was accused of stealing a television and put in corrective custody and while was in corrective custody he began speaking to the person that he had killed prior to service. The record reflects that during service, in June 1978, the Veteran accepted non judicial punishment for wrongful appropriation, and was sentenced to a reduction in rank, paid a fine, and underwent 30 days of correctional custody. A July 1978 service treatment reflected that the Veteran sought treatment for a knee problem, but reported that he was having violent thoughts toward his confiners at the correctional facility and that he been absent minded and unable to conform to the incessant demands for discipline. A July 1978 service treatment record noted the Veteran being seen as, in the past few days, he had had numerous hysterically violent episodes and had needed to be restrained but that he did not remember the episodes. A July 1978 service treatment record noted in part, the Veteran felt like he was being harassed while in corrective custody and provided an impression of passive aggressive personality. An October 1978 service record indicated charges against the Veteran for theft of government property, assaulting a security policeman, resisting apprehension, disobeying apprehension, disobeying a lawful order and drunk and disorderly conduct. The January 2007 VA examiner found the Veteran's schizophrenia was less likely as not aggravated by service as the Veteran experienced significant symptoms prior to the service and which led him to murder. The January 2007 VA examiner found that prior to the service, the Veteran was unable to work or to sustain pro-social friendships, and while in the service his symptoms returned when he was incarcerated, but these symptoms seemed to be tied to the murder, as he hallucinated the voice of a dead friend. The January 2007 VA examiner opined, while it was possible the service made his symptoms worse, they never reached the level he experienced prior to the service, as much of his difficulties after the service appeared to be drug related, and since he had been sober for one year his functioning had improved. An August 2009 VA examination report stated, in part, that based on all the available information, it was the consensus between all three examiners that the Veteran's symptoms were aggravated during service specifically during his incarceration in Okinawa. The August 2009 examination report stated the Veteran had psychiatric symptoms prior to entering service, his symptoms were in remission, and then remerged during his incarceration. Therefore, the August 2009 examiners concluded, the Veteran's incarceration could not be ruled out as a contributing factor to the re-emergence of his psychotic symptoms and it was the opinion of the examiners that it was at least as likely as not that the his psychotic symptoms were aggravated by military service. However, in a January 2010 addendum opinion, examiners provided a supplemental opinion which, in part, stated it was the opinion of all three examiners that Veteran's symptoms were temporarily exacerbated during service specifically during his incarceration in Okinawa. The January 2010 addendum opinion further stated that, as noted in the August 2009 examination, the Veteran had psychotic symptoms prior to entering service, his symptoms were in remission, and then re-emerged during his incarceration and therefore, his incarceration could not be ruled out as a contributing factor to the re-emergence of his psychotic symptoms. The January 2010 addendum opinion further noted that this re-emergence; however, did not constitute permanent worsening of symptoms. The May 2012 VA examiners found that the Veteran's schizophrenia, currently diagnosed as schizoaffective disorder, was as likely as not temporarily exacerbated by his military service during the time he was incarcerated in Okinawa. However, the May 2012 VA examiners noted in part, that the Veteran's schizophrenia, currently diagnosed as schizoaffective disorder, was less likely than not permanently aggravated by his military service, noting that the Veteran's pre-military symptoms were very severe leading him to murder a man as well as to shoot or shoot at a number of other individuals and that Veteran's symptoms of psychosis have never reached the severity of his pre-military days. A November 2015 VA examiner opined that it was clearly and unmistakably the fact that the Veteran's schizophrenia spectrum/ psychotic disorder had been in no way permanently aggravated by his time in military service, and there were clearly more significant periods of symptomatology (involving usually violent, antisocial behaviors), immediately preceding his time in service, as well as immediately following his time in service, and, quite frankly, during his time in service. The November 2015 VA examiner noted, that it was clear that the non-VA psychiatrists appeared to have selectively emphasized only marginal aspects of the Veteran's available data and historical record in coming to their opinions regarding the Veteran's claim, and due to this, the current VA examiners do not find their opinions to be a sufficient interpretation of available records of fact. The November 2015 VA examiner stated it was highly likely that this Veteran's primary psychopathology has been past substance abuse and his antisocial personality disorder, with symptoms of the latter notable from adolescence through adulthood and it was typical for such personality disorder symptoms to decrease in later adulthood as seen in his VA mental health records indicating numerous prosocial behaviors, interests, and activities in the past several years. Conversely, a May 2008 private mental health counselor found that the condition of the Veteran's mental health was much more likely than not aggravated during his military service, specifically while in corrective custody at Camp Courtney in Okinawa, Japan, and that his condition was permanently worsened beyond the natural progression of the disorder because of the non-diagnosis and subsequent non treatment of his mental health disorder. In November 2012, a private examiner Dr. Cesta, opined that the Veteran had been free of symptoms for several years was functioning in an above average fashion and was free of any evidence of psychiatric illness until his incarceration in the Marine Corps and this incarceration was the trigger for the reemergence of his symptoms of schizophrenia. In a September 2014 opinion, Dr. Cesta stated, in part, that Veteran was even able to tolerate the rigorous environment of Marine Corp boot camp and was eventually stationed in Okinawa where he ran into legal problems; however it was at this point, supported by service records which record bizarre and violent behavior, that the Veteran began again experiencing hallucinations while at the Camp Courtney Correctional Facility, where he developed command auditory hallucinations to kill himself. Dr. Cesta reported command auditory hallucinations are an extremely severe variant of perceptual alterations associated with schizophrenia and represented the most severe symptoms the Veteran had identified to date eclipsing the symptoms that occurred at previously. Moreover, Dr Cesta also found that the stressor event while in the Marine Corps, altered the Veteran from a six year state of remission and both triggered and exacerbated his schizophrenia permanently. With respect to the VA opinions, with the exception of the November 2015 opinion, the April 2015 JMR found that these incorrectly utilized the standard of at least as likely rather than the correct standard of clear and unmistakable evidence to demonstrate VA's burden that the Veteran's pre-existing acquired psychiatric disability was not permanently aggravated by service. Additionally, as noted above, the November 2015 VA examiner opined, in part, there were clearly more significant periods of symptomatology (involving usually violent, antisocial behaviors), immediately preceding his time in service, as well as immediately following his time in service, and, quite frankly, during his time in service. Thus, based on this statement, the November 2015 VA examiner appeared to find a significant period of symptomatology during service. Moreover, Dr. Cesta appears to be qualified to address the question at issue, and considered the same facts as the November 2015 VA examiner, but each derived different conclusions. Therefore, based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts. Therefore, it cannot be concluded that there is clear and unmistakable evidence that the preexisting schizophrenia was not aggravated by service as it is a debatable point on which reasonable minds could disagree. In light of this finding, the presumption of soundness is not rebutted, and the preexisting schizophrenia must be considered service-incurred. See Horn, 25 Vet. App. at 235. Thus, the second element of the service connection claim, service incurrence of a disease, is established. (3) Nexus Finally, the evidence tends to make it at least equally likely that the Veteran's current schizophrenia, paranoid type, is related to the symptoms experienced during service. In support of such, a May 2008 mental health counselor stated, in part, that symptoms the Veteran currently experienced and was being treated for, were the same as those exhibited and documented while in service. Similarly, the August 2009 VA examination report noted, in part, that since service the Veteran's symptoms have continued the expected course as with someone diagnosed with schizophrenia. In a November 2012 private examination, Dr. Cesta opined that unfortunately unlike his pre-military service, the symptoms never went away and continued to be evident to the current day. Furthermore, in February 2009 testimony, the Veteran reported that less than one year after service he again had legal problems. The record reflects in May 1980 the Veteran was sentenced to 12 years for robbery, which also provides an indication his symptoms continued after service. By resolving all reasonable doubt in the Veteran's favor, the Board finds that this evidence establishes a nexus between the current schizophrenia, paranoid type and the symptoms experienced in service. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Horn, 25 Vet. App. at 236. Accordingly, the existence of a nexus to service is established, which satisfies the final requirement for a grant of service connection. As all three elements of the claim have been met, the Board concludes that service connection is warranted for schizophrenia, paranoid type. ORDER Entitlement to service connection for schizophrenia, paranoid type, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs