Citation Nr: 1752374 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-04 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence sufficient to reopen the Veteran's claim for paranoid schizophrenia has been received. 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD) and paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served in active duty from December 1975 to December 1978, and in the Texas Army National Guard from November 1981 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2012 and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A video conference hearing was held by the undersigned Veterans Law Judge in April 2017. A transcript of this hearing is of record. This appeal is comprised entirely of documents contained in the Legacy Content Manager paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDINGS OF FACT 1. In an August 2002 rating decision, the claim of entitlement to service connection for paranoid schizophrenia was denied for lack of evidence that the condition onset in service or within a year of separation. 2. The evidence added to the record since the August 2002 decision became final is related to an unestablished fact that is necessary to substantiate the claims of service connection for paranoid schizophrenia. 3. The Veteran's current paranoid schizophrenia is not etiologically related to an in-service event. 4. The Veteran does not have a clear diagnosis of PTSD. CONCLUSIONS OF LAW 1. The August 2002 rating decision that denied service connection for paranoid schizophrenia is final. 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. As the evidence received subsequent to the August 2002 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, claimed as paranoid schizophrenia, have been met. 38 U.S.C. §§ 5108 , 7105 (West 2012); 38 C.F.R. § 3.102, 3.156 (2017). 3. The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD and schizophrenia, have not been met. 38 U.S.C. §§ 1111, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103 , 5103A (West 2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters sent in July 2011 and May 2013. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The Board notes that the Veteran does not have a VA examination of record that utilizes the Diagnostic and Statistical Manual of Mental Disorders (DSM V). However, where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required. Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010). The RO has obtained the Veteran's VA treatment records, private treatment records, available service treatment records, military personnel records, and statements from the Veteran and his representative. Neither the Veteran nor his representative has notified VA of any outstanding lay or medical evidence, and the Board is aware of none. Hence, the Board is satisfied that the duty to assist was met. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159 (2017). This appeal was remanded in August 2016 for so that the Veteran could be afforded at least six months to gather evidence supporting his claim prior to his videoconference hearing. His hearing was held in April 2017. Thus, the Board is satisfied that there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence To reopen a previously and finally-disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In this case, the Veteran is seeking service connection for an acquired psychiatric disorder characterized as paranoid schizophrenia. This claim was previously denied by the RO in August 2002 on the basis that there was no proof that the Veteran's schizophrenia onset in service or within one year of separation. The Veteran did not submit a notice of disagreement to that decision, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). As such, it represents the last final denial of the claim. The Veteran submitted a request to reopen his claim for schizophrenia in May 2011. Based on the evidence submitted since the August 2002 rating decision became final, the Board determines that the claim should be reopened. Prior to the August 2002 decision becoming final, the evidence of record consisted of the Veteran's 1987 compensation claim for schizophrenia, medical treatment records from November 1985, subsequent outpatient treatment records, a psychiatric treatment record from September 1986, and his available service treatment and personnel records. Evidence submitted subsequent to the August 2002 rating decision includes in-service records of behavioral changes on the part of the Veteran, as well as statements from several of the Veteran's family members indicating that his behavior changed drastically during his military service. These statements describe how the Veteran was happy and outgoing prior to his service, and that his demeanor changed after his return. He began keeping to himself, reacting to sudden noises, and hallucinating. While these statements are more indicative of PTSD, the Board finds that they could indicate the presence of other acquired psychiatric disorders, and as such, trigger the duty to assist. See Shade at 117. Moreover, the evidence also includes hearing testimony in which the Veteran mentions an in-service training exercise during which he had an "out-of-body experience." The Veteran mentions feeling as if his spirit left his body. Not only is the evidence submitted since the August 2002 rating decision "new" in that it was not previously considered by the RO; it is also "material," as it relates to an unestablished fact necessary to support the claim, which in this case is the development of an acquired psychiatric disorder in service. Therefore, the application to reopen the claim for schizophrenia is granted and the claim is reopened. Service Connection The Veteran is seeking service connection for an acquired psychiatric disorder. The Board notes that while the Veteran specifically claims service connection for PTSD and paranoid schizophrenia, VA should consider the claim as one for any psychiatric disability that may reasonably be encompassed by the evidence of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran asserts that his disorders are due to a personal assault that occurred during active duty in Germany. Specifically, he asserts that a fellow serviceman threatened him with a gun because he was a better than the average soldier. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (West 2014). Generally, the evidence 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). PTSD In order to establish service connection for an acquired psychiatric disorder as PTSD due to in-service personal assault, the evidence of record must include a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (2017), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304 (f)(5) (2017). The Board determines that service connection is not warranted for PTSD because the record contains no current diagnosis of PTSD. While the Veteran's service treatment records do not reflect treatment for PTSD during active duty, the Board concedes that evidence in the STRs corroborates the Veteran's account of his stressor. First, there is evidence of a decline in the Veteran's performance during service, including a record of disciplinary action dated November 1977 in which the Veteran failed to report for duty, and an unfavorable performance record dated September 1978. The latter record states that the Veteran's performance had suffered due to his inability to be at the proper place at the proper time. Second, the Veteran submitted several buddy statements from his spouse and several family members documenting behavioral changes following the Veteran's service. All of this evidence coincides with the time period immediately before the Veteran's separation from the Army. However, the Veteran does not have a current diagnosis of PTSD of record. A July 2017 psychiatrist's report states DSM-V diagnoses of "chronic schizophrenia" and "paranoid type anxiety disorder." Notably, PTSD is not included in this report, nor is it diagnosed in any of the Veteran's other treatment records. As such, the Veteran does not have a clear diagnosis of PTSD that conforms to the fifth edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-V). See 38 C.F.R. § 4.125 (a) (2017). The Board finds that remanding for a conforming examination would not assist this claim because there is no indication in the record that the Veteran currently has PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Indeed, the Veteran was specifically found to not have PTSD in a May 2012 examination. Further, treatment records since then have indicated treatment for acquired psychiatric disorders other than PTSD, but not PTSD. Accordingly, service connection for PTSD is not warranted. Disorders Other Than PTSD The Board determines that service connection for paranoid schizophrenia is also not warranted. While the Board notes that the Veteran has a current diagnosis of record for schizophrenia, schizophrenia was not shown in service. As an initial matter, the Veteran's medical records do not reflect treatment for paranoid schizophrenia in service or within a year after separation from the Army in December 1978, or the Army National Guard in November 1982. While the Veteran asserts that he went on sick call at Ft. Carson and was seen by two enlisted medics during active duty, this account is not found in the Veteran's available service treatment records. The first indication of a psychiatric diagnosis was not until November 1985, when the Veteran was admitted to Audie Murphy VA Hospital due to a psychiatric event. Moreover, the Board finds that the Veteran has not specifically asserted a link between his anxiety and his time in service. In statements in support of his claim, the Veteran and several of his family members mention drastic changes in the Veteran's personality after his return from service. However, he does not explicitly tie the onset of his schizophrenia to the personal assault in Germany, or other events in service. Nevertheless, given the gap in evidence of treatment between separation and 1985, continuity of symptoms is not established based on either the clinical evidence of record or the Veteran's statements. Next, despite the lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between his current disorder and the Veteran's active duty service. In this case, however, there is no medical nexus between the Veteran's active duty and current diagnosis. Of particular note, the Veteran underwent a VA examination in May 2012. There, after an examination of the Veteran and a review of the Veteran's medical history, the examiner determined the Veteran's psychiatric disorder was less likely than not related to service. In providing this opinion, the examiner noted that, despite the evidence of an in-service stressor, there is no concrete evidence in the available records that the in-service events precipitated a specific mental illness. Specifically, there was no evidence of the event, and the first indication of psychiatric symptoms was not until many years after service. Put another way, the examiner could not infer an in-service onset of schizophrenia, much less a medical nexus, from the in-service stressor the Veteran suffered. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements linking the Veteran's experiences to his current schizophrenia are found to lack competency. Because there is no credible evidence of onset of schizophrenia during service, the Board concludes that the preponderance of the evidence is against the claim for service connection for schizophrenia, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER The Veteran's claim for service connection for paranoid schizophrenia is reopened. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and paranoid schizophrenia, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs