Citation Nr: 1742228 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 09-35 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, schizoaffective disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2013, the Board reopened and remanded the Veteran's claim for additional development. In July 2016, the Board remanded the claim again for further development. There was substantial compliance with the Board's remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran has a current acquired psychiatric disorder, which has been characterized as paranoid schizophrenia and schizoaffective disorder. 2. The Veteran does not have a diagnosis of PTSD due to an in-service stressor. 3. The Veteran's acquired psychiatric disorder, to include paranoid schizophrenia and schizoaffective disorder, was not incurred in service, manifested to a compensable degree within a year of separation from service, or otherwise related to active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, schizoaffective disorder, and PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board previously remanded the Veteran's claim in January 2013 for a VA medical examination and opinions on the Veteran's claimed conditions, to associate missing medical records with the claim's file, and to attempt to verify the Veteran's claimed PTSD stressor. The remand directives required an opinion on PTSD only if the Veteran's stressor(s) had been verified. Following the January 2013 Board remand, an independent medical opinion was requested by the Appeals Management Center (AMC), which was provided in January 2014. The Veteran, though his representative in the August 2017 informal hearing presentation (IHP), contended that a medical opinion was essential and that the Veteran should be afforded a thorough examination and report that includes an opinion as to whether the Veteran's current disability is related to symptoms he experienced in service. The January 2014 medical opinion included a nexus opinion on the Veteran's current acquired psychiatric disorder and was based on a review of the record including a November 2013 mental health assessment, which was done two months prior to the opinion. The Board finds that the January 2014 medical opinion demonstrates substantial compliance with the remand directives. See Stegall, 11 Vet. App. 268; Dement, 13 Vet. App. at 146-47. The Veteran's claimed PTSD stressor, witnessing a fellow soldier die due to a heatstroke in basic training, has not been corroborated. A negative response was provided by Defense Personnel Records Information Retrieval System (DPRIS) indicating the inability to locate any unit records pertaining to the 1st Battalion, 3rd Basic Combat Training Brigade, Fort Dix, New Jersey for the calendar year 1972 where someone had died. VA also contacted the US Army Crime Records Center to see if the stressor could be corroborated. It responded that there were no records of such incident. Therefore, an opinion and examination for PTSD is not necessary, as discussed in more detail below. Service connection may be granted for a disability resulting from a 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(a). 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). Establishing service connection generally requires (1) evidence of a current disability; (2) 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 311. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran is currently diagnosed with an acquired psychiatric disorder. In January 2014, an independent medical expert reviewed the Veteran's claim's file including the medical evidence and confirmed the diagnosis by VA of schizoaffective disorder or sometimes referred to as schizophrenia. In the August 2017 IHP, the Veteran, through his representative, asserted that he manifested psychiatric symptoms within one year of discharge from active duty and that he suffered from a mental condition while on active duty. The Board has reviewed the evidence and finds that the preponderance of the evidence is against a finding that Veteran's acquired psychiatric disorder was incurred in service or manifested within one year from service separation. The reasons for this determination follow. Various post-service treatment records show the Veteran attributing his psychiatric disorder to service. For example, in a private medical record from October 1982, the Veteran asserted that his mental problems began during basic training and that he began psychiatric treatment in 1975. In a VA report of medical examination for disability evaluation form, the Veteran listed was 1976 as the earliest treatment for PTSD. A January 1977 private medical record indicates that the Veteran reported a nine-year history of the psychiatric problems he was treated for, including depression and being "afraid of something happening," which he reported extended back to his "excruciating Army experience." The Veteran stated that he was seen at the Union County Psychiatric Clinic and did not report any other psychiatric history. The January 1977 private medical record reflects that the Veteran read and exercised in his spare time and had been employed for two years with aspirations to be a jeweler. A June 1977 closing statement from the Union County Psychiatric Clinic indicates that the Veteran was seen between January and April of 1977. The psychiatrist noted that the Veteran had no incentive to become self-supporting although he noted that the Veteran talked about getting a job and expressed the idea that he wanted to do something great. The psychiatrist also stated that when the Veteran was last seen, he was hoping to receive Social Security benefits and that if he received any income [from Social Security] he would leave his parents and move to California. A private medical record from May 1990 indicates that the Veteran reported he was first admitted at a VA hospital in 1976 with a diagnosis of schizophrenia, chronic paranoid type. The Veteran reported his first episode was in 1972 during basic training. The medical professional noted that the Veteran "is a very poor historian." A July 1990 private medical record reflects that the Veteran had a 15-year history of schizophrenia, paranoid type, following discharge from service and had been dysfunctional since 1975. The medical professional indicated that as she proceeded with treatment with the Veteran, the Veteran became "increasingly somatic, anxious, oppositional, and over focused on obtaining Social Security Disability income through a VA appeals procedure." The Veteran's anger escalated when the staff and physician did not verify that his illness was service-related, which would entitle him to Veteran's benefits. The Veteran was unmanageable with threatening behavior and committed to a psychiatric hospital. In a June 1991 private medical record, the Veteran also contended that his psychiatric problems started in basic training in July 1972. He stated that he was seen by several medical doctors who treated him with aspirin. The Veteran reported that his first psychiatric hospitalization was in 1975. After a thorough review of the Veteran's service treatment and personnel records, there is no indication of symptoms of an acquired psychiatric disorder during the Veteran's service. While the Veteran has contended on many occasions that he had symptoms related to an acquired psychiatric disorder in service, which he claims began in basic training in 1972, service records are silent for treatment of any mental condition or symptoms. He was seen multiple times in service for various complaints, none of which involved paranoia or other psychiatric symptoms. There was no documentation of behavior that was unusual or perceived as bad behavior. In January 1974, he completed a health questionnaire, where he was asked if there had been any change in his general health within the past year, and he circled no. He was also asked if he had any disease, condition, or problem not listed on that form that he thought the examiner should know about, and he circled no. In the Veteran's May 1974 separation examination reveals a normal clinical evaluation for all bodily systems, specifically including psychiatric. The service treatment records weigh against the Veteran's allegation of experiencing symptoms of an acquired psychiatric disorder in service. The Board accords high probative value to the contemporaneous service records, as they were created contemporaneously with the Veteran's service. The Veteran has inconsistently reported the onset of his psychiatric symptoms and treatment history for his acquired psychiatric disorder since he first filed his claim for service connection in June 1977. At that time, the Veteran reported treatment and hospitalization as early as 1975 and schizophrenic episodes during basic training in 1972; however, the evidence does not support such assertions. For example, a January 1977 private medical record reflects that the Veteran reported he was seen at the Union County Psychiatric Clinic and that he did not report any other prior psychiatric history, which would have been relevant. An attempt to obtain 1975 records from VA were unsuccessful, which leads the Board to conclude that the Veteran was not hospitalized for a psychiatric disorder in 1975. A June 1977 closing statement from the Union County Psychiatric Clinic indicates that the Veteran was seen between January and April of 1977. Moreover, the psychiatrist stated that the Veteran as hoping to receive Social Security benefits in order to move to California, away from his parents. A medical professional indicated that the Veteran was a "very poor historian" in a May 1990 private medical record. The Veteran also showed similar motivations for seeking medical treatment in a July 1990 private medical record where the medical professional indicated that as she proceeded with treatment, the Veteran became "increasingly somatic, anxious, oppositional, and over focused on obtaining Social Security Disability income through a VA appeals procedure." When the staff and physician did not verify that his illness was related to service, the Veteran became unmanageable with threatening behavior and had to be committed to a psychiatric hospital. The evidence suggests that the Veteran was highly motivated to achieve compensation for an acquired psychiatric disorder with Social Security Disability Benefits and VA benefits through service-connection therefore the credibility of his reported treatment history is diminished. The preponderance of the evidence does not support a finding that the Veteran's acquired psychiatric disorder incurred in service or manifested within a year from service separation. The Board has also considered whether the Veteran's acquired psychiatric disorder is related to his service. An independent medical opinion was sought in January 2014. The independent medical expert opined that the Veteran's claimed condition of schizophrenia was less likely than not (less than 50 percent probability) incurred in or caused by or aggravated by the claimed in-service injury, event, or illness. The medical expert provided the rational that there were no service treatment records for mental health complaints while in active military service and clinical evaluations with normal psychiatric on enlistment and separation physicals. He noted the first diagnosis of mental disorder at the VA neuropsychiatric examination in September 1977 and that there was no medical evidence of a mental disorder within one year of leaving active military service. The independent medical expert also cited to Jacobson: Psychiatric Secrets, 2nd Ed., which indicates that the age of onset (for schizophrenia) is usually during adolescence or early adulthood and that there were a number of factors have been implicated in the pathogenesis of schizophrenia, often conceptualized as a group of disorders with common symptoms. He added that genetic factors play a significant role, but are not sufficient alone to account for the development of schizophrenia. The lifetime risk of developing schizophrenia is approximately 1 percent in the general population, 14 percent for a child born to one schizophrenic parent and approximately 25 percent if both parents are schizophrenic. The independent medical expert indicated that the Veteran's age of onset is typical but the claim of an onset during military service or within one year of military service is not supported by service treatment records, military personnel records, or review of the claims file. The Board has also considered the Veteran's claimed acquired psychiatric disorder of PTSD. The Veteran has proffered a November 1989 letter from his private psychiatrist that states that the Veteran had been under psychiatric treatment since January 1977 and that his symptoms were consistent with PTSD. It should be noted that this treatment is many years after service separation and not an official diagnosis of PTSD. A review of the Veteran's service treatment records and post-service medical records are silent for any diagnosis of PTSD and a July 2011 VA medical record indicates that a PTSD screen performed was negative. VA obtained an independent medical opinion in January 2014. The independent medical expert indicated that he was unable to provide an opinion for service connection for the Veteran's claimed PTSD without resorting to mere speculation as to whether the Veteran has PTSD and, if so, whether it had its onset during service or is causally and etiologically related to service or whether it is at least as likely as not (50 percent probability) that PSTD is related to reported in-service stressors. The independent medical expert provided the rationale that the Veteran did not have an initial PTSD compensation and pension (C&P) examination by a qualified examiner to evaluate his claimed stressor of witnessing a soldier die of heatstroke during basic training. Further, he added that the fact that the Veteran has been receiving ongoing care from VA for his mental disorder of schizoaffective disorder (chronic) and/or chronic schizophrenia since 1977 makes it unlikely that a diagnosis of PTSD has not been considered, if the Veteran has told his mental health providers of his claimed stressor and a panic disorder, like PTSD, is in the Veteran's differential diagnosis. The independent medical expert recommended an initial PTSD C&P examination for completeness in addressing the Veteran's claim. The Veteran does not have a current diagnosis of PTSD; however in a November 1989 letter, his private psychiatrist stated that he had been under psychiatric treatment since January 1977 and that his symptoms were consistent with PTSD. Service connection for PTSD not only requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) and a link, established by medical evidence, between current symptoms and an in-service stressor but also requires credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f), 4.125(a). An attempt to verify the Veteran's claimed stressor of witnessing a fellow soldier die of heatstroke in basic training was made and a negative response was returned by DPRIS and by the US Army Crime Records Center. The Veteran has also provided other potential PTSD stressors including stress and exhaustion, culture shock, harassment and threats while stationed in Germany; and extreme stress, discrimination, bias, prejudice, thefts, treats, and being the victim of several beatings while stationed in Fort Dix, New Jersey in a September 2002 substantive appeal (VA Form 9) and a January 2009 statement. The Veteran's service treatment records and personnel records are silent for any such events and there is no other evidence of record to corroborate that the claimed events occurred. As the preponderance of the evidence is against a finding of a current diagnosis of PTSD and the Veteran's claimed stressors have not been corroborated, the Board finds, despite the January 2014 independent medical expert's recommendation for an initial PTSD C&P examination for "completeness in addressing the Veteran's claim," that an examination is not necessary, as, without a corroborated stressor, service connection for PTSD would not be warranted. Moreover, the independent medical expert stated that based on the Veteran's psychiatric treatment since 1977, it would be unlikely that a diagnosis of PTSD has not been considered, if the Veteran has told his mental health providers of his claimed stressor and a panic disorder, like PTSD, is in the Veteran's differential diagnosis. Service connection for PTSD specifically requires credible supporting evidence that the claimed in-service stressor occurred therefore even with a diagnosis of PTSD, the Veteran would not meet the requirements for service connection without corroboration of a PTSD stressor. The preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, schizoaffective disorder, and PTSD, is denied. _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs