Citation Nr: 1724329 Decision Date: 06/27/17 Archive Date: 07/10/17 DOCKET NO. 13-32 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenic reaction, chronic undifferentiated type. WITNESSES AT HEARING ON APPEAL The Veteran and C.M. ATTORNEY FOR THE BOARD C. Teague, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the United States Army, from February 1958 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Indianapolis, Indiana, Regional Office (RO) which denied service connection for an unspecified mental condition. This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future review of this case should take into consideration the existence of this electronic record. In August 2016, the Veteran testified before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims. In June 2015 and November 2016, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. The requested actions for each Board Remand have been completed by the AOJ with no further action necessary to comply with the Board's remand directives; the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). A discussion of the AOJ's compliance with each Board Remand is included in the Duties to Notify and Assist section below. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veterans does not have a currently diagnosed psychiatric disorder. 2. Symptoms of schizophrenic reaction, chronic undifferentiated type were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, including schizophrenic reaction, chronic undifferentiated type have not been met. 38 U.S.C.A. §§ 110; 1112, 1113, 1131, 1154, 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303, 3.304(f), 3.306, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2016). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In a March 2013 notice letter sent prior to the initial denial of the claim, the RO provided timely notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. VA has also complied with the duty to assist by aiding in obtaining evidence. All known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's electronic claims file. The RO has obtained the Veteran's service treatment records, as well as VA, and private treatment records. The July 2015 Board Remand ordered the AOJ to make reasonable efforts to obtain the Veteran's treatment records from the Evansville State Hospital Division of Mental Health and Addiction. In September 2015, the AOJ was able to obtain the requested records and they have been associated with the Veteran's electronic claims file. The November 2016 Board Remand ordered the AOJ to provide the Veteran with a VA examination to determine the nature and etiology of any psychiatric disability. In December 2016, the Veteran underwent a VA psychiatric examination. As stated above, the Veteran was afforded a VA medical examination in December 2016. 38 C.F.R. § 3.159(c)(4) (2015); Stegall, 11 Vet. App. at 268. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination was thorough, adequate, and provided a sound basis upon which to base a decision with regard to the issue adjudicated in this decision. The opinion considers all the pertinent evidence of record, to include the statements of the Veteran, and provide rationales for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of service connection for a psychiatric disability has been met. 38 C.F.R. § 3.159(c)(4). A further discussion of the adequacy of the VA examinations is discussed in the Service Connection section below. Hence, VA has provided assistance to the Veteran as required under 38 U.S.C.A. §§ 5103a, 5103A, 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the appeal. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). As such, no further notice or assistance is required to fulfill VA's duties to notify and assist the Veteran in the development of the appeal adjudicated herein. Service Connection Laws and Regulation The Veteran has asserted entitlement to service connection for an unspecified psychiatric disability is warranted. The Veteran's enlistment examination was silent for any psychiatric disabilities. While in service, the Veteran reported no symptoms of, and sought no treatment for, any psychiatric disabilities. The Veteran's separation examination was silent for any psychiatric disabilities. In September 1961, the Veteran was referred for a social services evaluation. The Veteran was tense and anxious due to marital difficulties. The Veteran was diagnosed with a schizophrenic reaction, chronic undifferentiated type (paranoid). After extensive in-patient treatment, the Veteran was evaluated and found to be in good health. In April 1962, the Veteran was released from care with no medication prescribed after discharge. A September 1964, request for records showed the Veteran applied for treatment at the Adult Psychiatric Clinic of Vanderburgh County, Inc. However, there is no indication of any treatment received following the request for records. Further, at his December 2016 VA examination, the Veteran stated he did not remember receiving any treatment associated with the September 1964 letter. Following the September 1964 records request, the Veteran has had no further reports of psychiatric symptoms and has sought no further treatment. In December 2016, the Veteran underwent a VA psychiatric examination. The Veteran reported he gets along with people and sometimes socializes with friends. The Veteran reported he has received no psychiatric treatment since 1962 and denied any current symptoms. The VA examiner reviewed the Veteran's electronic claims folder, CPRS records, and the records from the Evansville State Hospital Division of Mental Health and Addiction. The VA examiner noted that the Veteran has received regular treatment through the VA since 1998, and there was no indication of any psychiatric treatment. During the examination, the Veteran was pleasant, cooperative, his mood was within normal limits, and insight and judgment appeared good. The VA examiner found the Veteran had no mental disorder diagnosis. After a review of all the lay and medical evidence of record, the Board finds that the Veteran does not have a currently diagnosed psychiatric disability. A necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). At no time during the appellate period has the Veteran been diagnosed with a psychiatric disability. The VA examiner reviewed the record, examined the Veteran, and concluded there was no current diagnosis. In fact, the Veteran denied any symptoms or treatment for a psychiatric condition for over 55 years. The examiner's review of the file considered the Veteran's history and provided a rationale for the opinions rendered. See Nieves-Rodriguez, 22 Vet. App. at 304 (indicating "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion."). Because the Veteran has no currently diagnosed psychiatric disability service connection on a direct basis is denied. However, though outside the appeal period, the Veteran was diagnosed with schizophrenic reaction, chronic undifferentiated type, and the Board must still consider whether the Veteran is entitled to service connection on a presumptive basis. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); see also Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such 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 for service connection. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases 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. Psychoses are among the listed diseases for which this presumption is warranted. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 38 C.F.R. § 3.384 defines psychosis as including a brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder, not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. 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. Id. Turning to the Veteran's September 1961 diagnosis of schizophrenic reaction, chronic undifferentiated type, the evidence demonstrates that the Veteran sought mental health treatment in 1961 for marital problems, which were resolved by April 1962, and the Veteran has sought no treatment and reported no symptoms since. Therefore, the Board first finds that symptoms of the Veteran's schizophrenic reaction, chronic undifferentiated type have not been continuous since service separation and did not manifest within one year of service separation, including to a compensable degree. See 38 C.F.R. § 3.309(a). The evidence in this case shows that there was over one year and nine months between service separation in January 1960 and the first reports of mental health symptoms when the Veteran sought treatment in September 1961. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). The December 1959 examination performed at the time of the Veteran's separation from service reflects that the Veteran's psychiatric condition was described normal. Because one year and nine months passed before the Veteran reported any mental health symptoms, and because the Veteran neither contends nor is there evidence indicating continuous symptoms of schizophrenic reaction, chronic undifferentiated type after service separation, the weight of the evidence is against finding that there were continuous symptoms of schizophrenic reaction, chronic undifferentiated type since service (to meet the presumptive service connection criteria at 38 C.F.R. § 3.303(b)), to include to a compensable degree within the first year after service separation). As such, the evidence also does not show that the Veteran's schizophrenic reaction, chronic undifferentiated type manifested to a compensable degree (i.e., at least 10 percent) within one year of service separation in 1960; therefore, presumptive service connection under the provisions of 38 C.F.R. §§ 3.307 and 3.309 for a psychosis manifesting to a degree of 10 percent within one year of service is not warranted. As such, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include schizophrenic reaction, chronic undifferentiated type. Consequently, because a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Therefore, service connection for a psychiatric disorder is denied. See 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for a psychiatric disability, to include schizophrenic reaction, chronic undifferentiated type, is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs