Citation Nr: 1756750 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 09-13 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, schizophrenia, and panic disorder, to include as secondary to the service-connected left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from November 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in pertinent part, denied the Veteran's service connection claim for depression. The Board notes that, in May 2009, the RO separately denied a service connection claim for PTSD, which the Veteran appealed. Similarly, the Board further notes the Veteran filed a claim of entitlement to service connection for schizophrenia in November 2014. As reflected on the title page, the Board has recharacterized the service connection claim on appeal as a claim of entitlement to service connection for an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In January 2010, the Veteran testified before the undersigned Veterans Law Judge at a live videoconference hearing. A transcript of the proceeding is of record. This case was last before the Board in December 2013, where it remanded the claim for further development. As will be discussed below, with respect to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, other than schizophrenia, the Board finds that there was not substantial compliance with its December 2013 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The issue of entitlement to service connection for an acquired psychiatric disorder, other than schizophrenia is addressed in the REMAND portion of the decision below and is being REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record reflects that the Veteran's schizophrenia is etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.384 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the 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, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Service Connection for Schizophrenia The Veteran seeks service connection for an acquired psychiatric disorder, to include schizophrenia, which he contends began during service after finding the body of a friend who had committed suicide. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence of record reflects that the Veteran's schizophrenia is etiologically related to his military service. Therefore, this claim will be granted. The Board will begin by addressing direct service connection. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of schizophrenia. See June 2015 VA Examination. As a result, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. In this case, the Veteran's service treatment records document complaints of, and treatment for, depression. Initially, the Board notes that the Veteran's September 2006 Report of Medical History was negative at enlistment for depression or abuse. Accordingly, he is presumed sound at entrance. A June 2007 medical evaluation board (MEB) found the Veteran to have mild reactive depression due to family problems, which were identified as his sister becoming paralyzed and a death of a cousin. In July 2007, the Veteran was seen in behavioral health for mildly depressed mood, exogenous in nature, and likely to improve upon completion of the MEB. At this time, the record indicates that he did not meet the criteria for depression or any other Axis I pathology. As stated above, the third element of direct service connection requires evidence of a nexus between the current disorder and the in-service disease or injury. After separation from service, the evidence of record extensively shows that the Veteran has been diagnosed with, and treated for, an acquired psychiatric disorder, to include schizophrenia, since his medical discharge. See, e.g. VA Psychiatrist, Dr. M.Z., March 2015 Statement; see also Dr. D.T.'s May 2015 Medical Statement (documenting the Veteran's various psychiatric diagnoses, as well as describing their nature and severity, and service). The Veteran was afforded a VA examination in June 2015. The Veteran indicated that his military experience was "initially fine" until a fellow soldier committed suicide. Subsequently, he reported that, at the age of 21, he began experiencing auditory and visual hallucinations. He noted that the hallucinatory events were triggered after finding the body of his friend in a closet. He described hearing voices and seeing a dark shadowy figure (a man). Following review of the Veteran's history, the examiner indicated that the Veteran had a diagnosis of schizophrenia. The examiner opined that the schizophrenia, and the long list of symptoms related to this condition, is at least as likely as not related to the stressor claimed by the Veteran while in the military. In support of this determination, the examiner first noted the Veteran's report of auditory and visual hallucinations, as well as confirmed his extensive medical treatment for the condition. The examiner then indicated that the Veteran denied experiencing psychotic symptoms prior to his active military service. The Board notes that the June 2015 VA examination is highly probative, because this opinion was based on examination of the Veteran and a thorough review of the claims file. Moreover, the opinion provided the required explanatory rationale for the ultimate conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Further, the VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The examiner considered the relevant medical history of the Veteran's schizophrenia, including the lay evidence of record, performed an examination, and provided a rationale to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Based on the foregoing evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the most probative evidence of record supports a finding that the Veteran's schizophrenia is etiologically related to his active military service. Here, the June 2015 VA medical opinion is the only probative opinion of record, and it provides an adequate rationale to support the conclusion that the Veteran's schizophrenia is related to his service. There can be no doubt that further inquiry can be undertaken with a view towards development of the claim. However, in this regard, the Board recognizes that the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence establishes that the Veteran's schizophrenia is etiologically related to his service and, accordingly, his service connection claim is granted. ORDER Entitlement to service connection for schizophrenia is granted. REMAND As noted above, there was not substantial compliance with the Board's December 2013 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board directed the AOJ to (i) seek clarification from the Veteran regarding his in-service stressors and verify such information with the United States Army and the Joint Services Records Research Center (JSRRC), as well as (ii) obtain an addendum opinion to address whether any of the Veteran's variously diagnosed acquired psychiatric disorders are related to service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. §§ 3.159(c)(4), 4.1. Upon completion, the Board then instructed the RO to readjudicate the Veteran's claim and issue an SSOC. The record reflects that the RO failed to obtain the requested VA addendum opinion before returning the claim to the Board. When the medical evidence of record is insufficient, the Board may supplement the record by seeking an advisory opinion or ordering another medical examination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In this case, the Board finds that additional development of the medical evidence is necessary before adjudication of the Veteran's appeal. The Board notes that evidence received since the December 2013 remand reflects that, in addition to PTSD and major depressive disorder, the Veteran has also been diagnosed with other psychiatric conditions, including panic disorder without agoraphobia and schizophrenia. See, e.g., Dr. D.T.'s June 2016 Statement. In light of the above grant of service connection for schizophrenia, the Board finds that a new VA examination is warranted to address the etiology of the Veteran's variously diagnosed acquired psychiatric disorder, to include as secondary to his service-connected schizophrenia and left knee disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his variously diagnosed acquired psychiatric disorder, other than schizophrenia, to include major depressive disorder, PTSD, and panic disorder without agoraphobia. His claim file, including a copy of this remand, must be made available to the examiner in conjunction with the examination. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's acquired psychiatric disorder, other than schizophrenia, to include depression, PTSD, and panic disorder without agoraphobia, had its onset during service or is it otherwise related to service? (b) Is it at least as likely as not that the Veteran's acquired psychiatric disorder, other than schizophrenia, was either caused, or aggravated, by his service-connected schizophrenia and/or left knee disability? The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that the Veteran's service-connected schizophrenia and/or left knee disability has aggravated his acquired psychiatric disorder, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. The absence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 2. Ensure that the requested examination report is responsive to the above directives. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 4.2. 3. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claim remaining on appeal. If the issue remains denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC), and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs