Citation Nr: 1723554 Decision Date: 06/22/17 Archive Date: 06/29/17 DOCKET NO. 98-10 149A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to January 1972, with subsequent service in the Army Reserves and the New Jersey Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) from an August 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction over the Veteran's claims file was subsequently transferred to the RO in San Juan, Puerto Rico. Regarding the procedural history of this matter, the Board first denied the Veteran's claim in January 2007, after which he appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In August 2008, the Court remanded the matter for further development consistent with the parties' July 2008 Joint Motion for Remand (JMR). Following an August 2009 Board remand, the Board again denied the Veteran's claim in December 2011. The Veteran again appealed the matter to the Court, and in October 2012, the Court again remanded the matter for further development consistent with the parties' JMR of that same month. The matter was most recently remanded by the Board in August 2013 for further development, specifically to obtain any outstanding Vet Center or VA treatment records. The case has been returned to the Board for further appellate review FINDING OF FACT An acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder, did not have onset during active service or within one year of service discharge, and is not otherwise etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process With respect to the Veteran's claims discussed herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In this regard, the Board notes that in a July 2013 brief, the Veteran's representative asserted that there were outstanding VA medical records that needed to be obtained. For example, she said that the Veteran had reported having received psychiatric treatment within one year following his January 1972 separation from service. VA attempted to obtain those records numerous times to no avail, and the Board finds that such records do not exist. The basis for this determination is that the evidence in the record points to the start of the Veteran's psychiatric treatment in 1980. For example, there is a February 1986 letter from the VA Medical and Regional Office Center in Puerto Rico wherein that facility confirmed that the Veteran had been treated there since 1980. This fact is consistent with other evidence in the record. For example, there is a VA Form 3230, dated July 28, 1980, wherein a VA employee indicates that he is referring the Veteran for treatment to the "Outreach Program Liais[o]n." There is an August 1, 1980 record from the Vet Center, wherein the psychologist wrote at the top "Outreach Liaison," and noted that the Veteran had been referred by the Outreach Program Specialist and wrote the employees name, which appears to be the same employee who signed the VA Form 3230. Additionally, the psychologist wrote that the Veteran had "no medical records yet at VAH." The year 1980 is the start of the Veteran's post-service treatment for a psychiatric disorder, and there are no post-service psychiatric treatment records prior to this time. Thus, the failure to inform the Veteran of the unavailability of these records is not prejudicial to the Veteran. The Veteran's representative has also alleged that VA should attempt to get the treatment records from the VA fee basis physician, who provided an opinion in July 2004. The medical opinion submitted by Dr. Juarbe does not indicate that he was treating the Veteran for his psychiatric disorder. He described what the Veteran had told him and then provided an opinion. He made no reference to treating the Veteran, and the Veteran has not indicated that this physician treated him for his psychiatric disorder. Thus, the Board finds that an attempt to obtain these records is not warranted. The Veteran's representative has also alleged that the June 2006 VA examination report is inadequate because the examiner wrote that the Veteran was not treated between 1970 and 1986, when the Veteran had received psychiatric treatment beginning in 1980. The Board acknowledges this discrepancy but finds that the examiner's ultimate rationale remains probative, namely, that the Veteran's in-service complaints were temporary and the evidence of record, including service treatment records and post-service treatment records, does not otherwise document ongoing and continuous psychiatric complaints during and since active service that ended in January 1972. When the Veteran was seen in 1980, he was not reporting chronic psychiatric symptoms since service or symptoms existing for a long period of time, but rather was complaining about symptoms he was experiencing at that time. He then denied any psychiatric symptoms in a November 1980 Report of Medical History. Thus, the Board does not find that such examination is inadequate on this basis. The Veteran's representative also alleged that the June 2006 VA examination was inadequate because the examiner failed to address the favorable opinions provided in the January 1997 and February 1997 examination reports and the March 1997 addendum and the July 2004 fee basis opinion. There is no indication that the VA examiner was asked to comment on the favorable opinions. A favorable opinion need not be discussed in order for a differing opinion to be probative. Additionally, as will be discussed below in more detail, each of these favorable opinions was based upon facts provided by the Veteran, which facts are not credible. Thus, there is no need for the VA examiner to comment on medical opinions that lack probative value. It is up to the Board, as the fact finder, to weigh the medical opinions, which it will do below. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). II. Service Connection - Acquired Psychiatric Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). "To establish a right to compensation for a present disability, a 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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). For certain chronic disorders, including psychoses such as schizophrenia or schizoaffective disorder, service connection may be granted on a presumptive basis if the disease is manifested to a compensable degree within one year following service discharge. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). Additionally, for chronic diseases defined by 38 C.F.R. § 3.309(a) and shown in service or by a continuity of symptoms after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to show a chronic disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required in order to establish entitlement to service connection. Id. Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran claims entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder. Specifically, he asserts that an acquired psychiatric disorder had onset during active service in September 1970 and has continued since that time. Service treatment records document a normal psychiatric evaluation upon enlistment in June 1970, with no psychiatric symptoms reported in a concurrent report of medical history. In September 1970, the Veteran reported trouble with his nerves, poor sleep, and nervousness when people talked to him; he was seen by a mental health social worker who prescribed medication including Librium and Benadryl. A December 1971 physical examination prior to separation documents a normal psychiatric evaluation, with no psychiatric defects or diagnoses noted. A subsequent August 1972 evaluation for retention in the Army Reserves documents that the Veteran was assigned a "1" for a high level of fitness in the category of psychiatric condition on the Physical Profile Serial ("PUHLES"). See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In August 1980, the Veteran was referred for VA psychiatric evaluation and treatment; however, he was not receptive to treatment, and his case was closed. A November 1980 physical examination upon enlistment in the New Jersey Army National Guard documents a normal psychiatric evaluation, and the Veteran denied any psychiatric symptoms within a concurrent report of medical history. Vet Center treatment records from September 1983 document that the Veteran was interested in pursuing medical studies in embalming and began to feel bad emotionally; he reported anxiety, depression, and suicidal ideation and accepted the need for psychiatric treatment to avoid further deterioration. He was referred to VA care and assessed with atypical depression. An April 1985 quadrennial physical examination for the New Jersey Army National Guard again documents a normal psychiatric evaluation, and the Veteran denied any psychiatric symptoms within a concurrent report of medical history. Thereafter, VA treatment records from October 1985 document that the Veteran had been depressed and anxious in the past few years. In January 1986, he reported anger, depression, and insomnia following divorce from his wife; he was assessed with affective disorder and depression and evaluated for therapy. February 1986 correspondence from the San Juan VA Medical Center documents that the Veteran had been treated from 1980 to the present for major depression. In April 1986, the Veteran again sought treatment at a Vet Center for major depression; he reported financial and employment problems, but the cause of his depression could not be identified. In October 1986, the Veteran displayed emotional stability and had obtained a job, so his case was deactivated. VA treatment records from June 1996 document the Veteran's report of insomnia and depression for the past two months; he also reported a 15-year history of depression. In July 1996, the Veteran submitted his claim on appeal, in which he sought disability compensation for a nervous condition and sleep impairment. Therein, he reported related VA medical treatment in 1972. Upon VA mental examination in September 1996, the Veteran reported a history of many psychiatric hospitalizations over 15 years in VA hospitals. Following the examination, the VA examiner diagnosed chronic paranoid schizophrenia due to an undetermined stressor. In January 1997, a different VA examiner opined that although the Veteran's condition manifested clinically in the last 15 years, he might have had prodromal symptoms of anxiety. The examiner stated that it was difficult to ascertain or conclude that the Veteran's in-service symptoms were the onset of his condition since the Veteran's treatment records and history pointed to only the last 15 years as to when he sought active treatment; however, he ultimately concluded that the Veteran's symptoms during active service "could be prodromal in nature." In March 1997, the same examiner further stated that the Veteran's in-service complaints of anxiety and sleep problems were most likely part of the prodromal or onset of his schizophrenic problem. A November 2001 private psychiatric evaluation documents the Veteran's diagnosis of chronic, undifferentiated schizophrenia. A February 2003 psychiatric evaluation conducted as part of the Veteran's application for Social Security Administration (SSA) disability benefits documents the Veteran's reported history of mental health treatment since 1970 and a diagnosis of major depression; the Veteran was subsequently found by SSA to be disabled due to major depression as of December 1996. A July 2004 fee basis opinion from Dr. Juarbe relates that according to the Veteran, he was seen in September 1970 during active service for anxiety and insomnia. The Veteran reported going to the San Juan VA in February (presumably 1972), where he was denied VA treatment because he was not service connected. The Veteran reported ongoing treatment since 1980 and a 1996 diagnosis of schizophrenia. The private physician ultimately concluded that the Veteran's schizophrenic condition had its onset during the Veteran's active duty in September 1970. Following subsequent VA examination in June 2006, a VA examiner concluded that the Veteran's September 1970 in-service complaints of trouble with his nerves, poor sleep, and nervousness when people talked to him were not prodromal symptoms and had no relation at all to his later psychiatric diagnoses, including schizophrenia and schizoaffective disorder. Rather, the examiner stated that the Veteran's in-service complaint was a temporary, self-limiting episode, which was not related to nor responsible for any further psychiatric disability or impairment, as the Veteran was able to complete his military service with an honorable discharge in January 1972 without further evidence of any other in-service psychiatric symptoms or conditions after September 1970. More recent VA treatment records and Vet Center records reflect ongoing treatment and therapy for the Veteran's psychiatric complaints, including schizoaffective disorder. Following a review of the evidence of record, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder. The Board has considered the conflicting medical nexus evidence of record and affords the greatest probative value to the June 2006 VA examiner's opinion, which was rendered following a thorough review of the claims file and which is supported by a reasoned rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the examiner inaccurately stated that there was no evidence of psychiatric treatment during the period from 1970 until 1986, the Board acknowledges that the record, as discussed above, documents the Veteran's psychiatric complaints in August 1980, September 1983, and October 1985. Nevertheless, as stated above, the examiner's ultimate rationale remains probative, namely, that the Veteran's in-service complaints were temporary and the evidence of record, including service treatment records and post-service treatment records, does not otherwise document ongoing and continuous psychiatric complaints during and since active service. The January 1997 VA examiner's opinion that the Veteran's symptoms during active service could be prodromal in nature is of no probative value for several reasons. One, it is speculative. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The same VA examiner's March 1997 opinion that the Veteran's in-service complaints of anxiety and sleep problems were most likely part of the prodromal or onset of his schizophrenic problem is also of limited probative value given its lack of a supporting rationale. See Nieves-Rodriguez, 22 Vet. App. at 304. More importantly, however, is the fact that these opinions were provided based on an inaccurate factual premise. The Veteran had told the examiner that he had been hospitalized 12 times since he was treated in service in 1970, with the latest hospitalization occurring in June 1996. The June 1996 VA hospitalization records are clear in that that was the first time the Veteran was hospitalized for his psychiatric disorder. For example, in VA Form 10-0096, "Medical Record - Nursing Documentation," the form asks about prior hospitalizations, and when asked about past psychiatric hospitalization, the VA employee circled, "No." Additionally, the psychiatric admission note shows that the examiner indicated at the top of that form that there was no prior psychiatric hospitalization. Thus, the Veteran's report to the 1997 VA examiner of having been hospitalized 12 times is not credible, and thus the opinion that the 1970 symptoms were prodromal of the onset of the psychiatric disorder has no probative value since it was based on facts reported by the Veteran that are not accurate. The Board also finds that the July 2004 opinion from Dr. Juarbe has no probative value, as he provided an opinion that was based on statements from the Veteran, and the Board finds that the Veteran's statements lacks credibility, in part, due to the fact that he provided false information to the 1997 examiner that he had been hospitalized 12 times. He had told the 1996 VA examiner that he had many psychiatric hospitalizations for over 15 years, which statement is not true. In the July 2004 opinion, Dr. Juarbe wrote that the Veteran had been treated in service in September 1970 because of insomnia, anxiety, feeling like he was being persecuted, hearing voices, and other symptoms. The only symptoms reported in the service treatment record are trouble with nerves, sleeping poorly, and feeling nervous when people talked to him. Because of the Veteran's having provided inaccurate information to VA examiners in 1996 and 1997, the Board is unwilling to accept any other symptoms other than those described in the September 1970 service treatment record. Dr. Juarbe also wrote that the Veteran had sought treatment for his psychiatric symptoms in "February," which would appear to be in February 1972 after the Veteran was discharged from service one month prior. The Board finds as fact that the Veteran's first psychiatric treatment was in 1980 and not 1972. Thus, Dr. Juarbe's medical opinion is based on an inaccurate factual premise and is accorded no probative value. The February 2003 SSA psychiatric evaluation which documents the Veteran's reported history of mental health treatment since 1970 has no probative value given that it merely documents the Veteran's reported history, which is not credible. The Board is aware that the Veteran's representative has alleged that the Veteran is competent to provide an opinion regarding the onset of his psychiatric disorder because he went to medical school. First, the Board notes that the Veteran completed three years of medical school. The Board accords more probative value to the June 2006 VA medical opinion, which was provided by a psychiatrist who whose specialty is psychiatry and who had experience as a psychiatrist. Additionally, the Veteran has provided inaccurate information in connection with his claim, and the Board finds his statements lack credibility, which would include his medical opinion that his psychiatric disorder had its onset in service. In the Veteran's representative's 2013 brief, she noted that the Board in the December 2011 decision had pointed out that the Veteran had denied psychiatric symptoms in Reports of Medical History that he completed in November 1980 and April 1985. She wrote that there was a logical and reasonable explanation for the Veteran not having reported his psychiatric disorder during military examinations or when providing his medical history-"that it could have jeopardized his military career." This would indicate that the Veteran would have a reason to misrepresent the symptoms he was or was not experiencing and implies that under these kind of circumstances, it is understandable to provide inaccurate facts. While it may be understandable, it does not make the Veteran's statements credible, and it further supports the Board's conclusion that the Veteran's statements lack credibility. Thus, the most probative evidence of record does not document that a chronic acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder, first had onset during active service, or within one year of service discharge. In conclusion, service connection is not warranted for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder, on a presumptive or direct basis, as the evidence does not show that a chronic acquired psychiatric disorder first had onset during active service or within one year of service discharge, or that the Veteran's current acquired psychiatric disorder is otherwise etiologically related to active service. As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and schizoaffective disorder, is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs