Citation Nr: 1757729 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 07-25 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), schizophrenia and an adjustment disorder, with depressed mood. REPRESENTATION The Veteran represented by: Penelope E. Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran had active service with the United States Coast Guard from June 29, 1987 to September 11, 1987 and from May 15, 1988 to May 25, 1988. She was a Member of the Reserve into the mid 1990's. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned in a May 2016 videoconference hearing. A transcript of that hearing is of record. This case was previously before the Board in March 2011 and December 2013, when it was remanded for additional development. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD, schizophrenia and an adjustment disorder, with depressed mood, which is related to her active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for acquired psychiatric disorder, to include PTSD, schizophrenia and an adjustment disorder, with depressed mood, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. Moreover, the Board notes that the notice which the Veteran received in the form of May 2006 and March 2011 letters under the Veterans Claims Assistance Act of 2000 and VA's duty to assist the Veteran (VCAA/DTA letters) in conjunction constitute sufficient notice under 38 C.F.R. § 3.304 (f)(5) of avenues by which the Veteran could collect, then submit evidence of in-service personal and sexual assault. In addition, the Board is satisfied that VA has substantially complied with the directives of the Board's previous remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends in her hearing testimony, her May 2006 and April 2007 Statements in Support of Claim and her June 2007 VA Appeals Form 9 that her acquired psychiatric disorder, whether identified as PTSD or other disorder, began in service and is directly attributable to events in service, which include instances of rape and gunshot wounds. She adds that as a result, she developed a schizophrenic disorder, depression, anxiety, and panic attacks. The Veteran further asserts that the above events are in-service stressors of sexual assault. The Veteran's Acquired Psychiatric Disorder The Veteran's service treatment records (STRs) indicate that her June 1987 pre-enlistment examination shows that next to the clinical category of "Psychiatric" the examiner checked "NORMAL." In addition, categories for current or past conditions of "Depression or excessive worry," "Loss of memory or amnesia," "Nervous trouble of any sort," and "Have you ever been treated for a mental condition?" were all checked "NO." A pre-training examination later in June 1987 recorded the same findings. The Veteran's quadrennial examination in July 1989 once again noted the same findings as above. Other service treatment records do not make reference to psychiatric impairment, even though schizophrenia had been diagnosed in late 1987. The Veteran's Social Security records indicate that between December 1987 and February 1993, the Veteran was treated at Western Mental Health Center. Her symptoms in this period included delusion, paranoia, loose associations, auditory hallucinations, flat affect, withdrawal, and mood swings. She received diagnoses of schizophrenia and bipolar disorder with psychotic features. During this period, the Veteran also underwent a psychological evaluation in January 1989 with Dr. K.W., who noted her treatment at Western Mental Health Center in the last year. Dr. K. W. diagnosed the Veteran with schizophrenia, undifferentiated type, subchronic. He added there was possibly a distinct paranoid component to her thinking at that time. Between May 1994 and November 1999, the Veteran received mental health treatment at the Lloyd Noland Hospital and Health Centers. From January through November 1992, her diagnoses were paranoid schizophrenia, chronic with acute exacerbation, but also in partial remission due to medication. Her symptoms were variable, including some delusions. In May 1999 she received a diagnosis of paranoid schizophrenia in partial remission from Dr. D.L.N., who also indicated for Social Security benefits purposes that the Veteran was functionally impaired for work. A June 2005 examination with Dr. N.J.S. revealed some delusions and auditory hallucinations and she diagnosed the Veteran with schizophrenia, paranoid type. She noted psychosocial stressors, described as "moderate (transitional home)." In October 2012, the Veteran underwent a VA examination, in which VA examiner concluded that the Veteran does not exhibit symptoms which meet the diagnostic criteria for PTSD under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, 4th edition (DSM-IV). She diagnosed the Veteran's only mental disorder as schizophrenia, paranoid type. Clinical findings included noting that the Veteran has a strong delusional belief set and, consequently, her reports might not be entirely accurate, as they are filtered through her delusional belief system. The October 2012 VA examiner identified no specific stressor leading to trauma. Moreover, she could not identify any of the criteria in the six categories which would establish PTSD under the DSM - IV. She noted symptoms, which included persistent delusions or hallucinations, as well as depression, anxiety and panic attacks, although the Veteran either denied them or reported that they were past symptoms. First noting again that the Veteran does not meet the DSM - IV criteria for PTSD and the Veteran is diagnosed with schizophrenia, paranoid type, the October 2012 VA examiner opined that the Veteran's diagnosis of schizophrenia is less likely as not (less than 50/50 probability) related to the Veteran's claimed in-service stressor. She explained that schizophrenia is a genetic/biological based disorder and is not etiologically caused by any stressors or "environmental insults." During the Veteran's May 2016 Board hearing, the Veteran's representative directed the Board's particular attention to the February 2016 psychiatric evaluation report of Dr. O.A. Under the heading of Diagnostic Impression and Severity of Impairment, Dr. O.A. stated that, based on the Veteran's severe and pervasive mood, anxiety and psychosis, the appropriate diagnosis is schizophrenia, paranoid type. She noted that, although the Veteran exhibits chronic PTSD symptoms of vivid and intrusive memories, nightmares, hypervigilance, and avoidance, these symptoms are connected to nonfactual events which are caused by her paranoid and somatic delusions and hallucinations. Nonetheless, she concluded that the Veteran does not meet the criteria for PTSD because she did not experience any actual reality-based trauma. Dr. O.A. observed that, although the etiology of schizophrenia is inherently complex and causality in the Veteran's case cannot be absolutely determined, the "timing and progression" of the Veteran's disorder was well-documented and can be determined. She added that it began with sleep dysfunction, blunting of mood and affect and anhedonia and amotivational symptoms in 1987. She further noted that in 1988 the Veteran experienced "active and frank psychosis," resulting in a suicide attempt and subsequent hospitalization. Dr. O.A. concluded that this pattern of illness development is entirely consistent with the usual course of schizophrenia development. She further noted that the Veteran was in military service from 1987 to 1991 and received her first psychiatric diagnosis and first psychiatric hospitalization in 1987 and 1988, respectively. From the above, Dr. O.A. concludes that, "[t]herefore, [the Veteran's] schizophrenia is conclusively service-connected by virtue of timing and substantiated by objective records." Subsequent written opinion from this examiner, detailed a discussion with the appellant and a review of the records. Recorded history revealed appellant claiming that she had combat service in Africa, was shot in the head and had survived, and was in service for over 20 years. As stated earlier in this decision, service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). See generally 38 C.F.R. 3.303. Dr. O.A.'s conclusion above is not an argument for a direct relationship or "connection," but is merely an assertion of the co-temporal events of the Veteran's service and the onset of symptoms, treatment and diagnosis. There is nothing in her statement to which Dr. O.A. points which aims at establishing causality, as much as that can be reasonably approached based on the clinical evidence. The contention that the "timing" of service and a disease is conclusive defies the common-sense definition of "connection." For these reasons, the Board views Dr. O.A.'s conclusions as having only limited probative weight. Moreover, while the private examiner has indicated that her schizophrenia showed up while she was on active duty in the military this is not the case. She had active duty from June 29, 1987 to September 11, 1987, and again briefly in May 1988. She was a Member of the Coast Guard Reserve when schizophrenia was diagnosed in December 1987, but she was not on any active duty or active duty for training at that time. Moreover, all service treatment records associated with her Membership in the Reserve, are negative for complaints or finding. She had a period when she was excused from training due to a pregnancy and childbirth, but it does not appear that she was ever precluded from training due psychiatric symptoms. As she had less than 90 days of continuous active service, the one year presumption for service connection for a psychosis is not for application.38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Although the Veteran's representative further asserted at the May 2016 Board hearing that the October 2012 VA examination supports the Veteran's claim, it does not. The October 2012 VA examiner decisively rejected a diagnosis of PTSD for the Veteran, as she did not satisfy any of the criteria under the DSM - IV, in use at the time of the examination. The October 2012 VA examiner expanded the province of her clinical inquiry to arrive at a diagnosis of a single mental disorder, schizophrenia, paranoid type. This is entirely consistent with Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), mentioned by the Veteran's representative at the hearing, under which the Board will determine the scope of a claim by broadening its consideration of symptoms, descriptions and information. Contrary to the assertion of the Veteran's representative, the October 2012 examiner was not addressing "the wrong issue." With this diagnosis, The October 2012 VA examiner opined that is less likely as not that the diagnosis of schizophrenia is related to the Veteran's claimed in-service stressor. Significantly, Dr. O.A. rejected the Veteran's claimed stressor(s) as not rooted in reality. The October 2012 VA examiner supported her opinion by explaining that schizophrenia is a genetic/biological based disorder and is not etiologically caused by any stressors or "environmental insults." Dr. O. A. stated that the cause of the Veteran's disorder "cannot be absolutely determined. The Board concludes that the October 2012 VA examiner's findings and opinion do not support the Veteran's claim, nor do the findings of Dr. O.A. For these reasons, the Board assigns significant and substantial probative weight to the October 2012 VA examination. Additionally, in regard to the in-service stressors claimed in support of the claim, the Board notes that the record contains a June 2011 correspondence from M.S.C of the United States Coast Guard to N.T. of the VA Appeals Management Center indicating that inquiries with the Coast Guard Investigative Service (CGIS) revealed that, although CGIS's records go back to 1987, there were no records relating to the Veteran. Moreover, a United States Coast Guard attorney reported that he did not find records at the Coast Guard Training Center at Cape May of "an alleged or investigated rape" in 1987. An October 2012 VA memorandum from the Joint Services Records Research Center Coordinator at the VA Appeals Management Center reported that, after review of the evidence submitted, past development and after numerous inquiries to the Coast Guard Investigative Service, the Coast Guard Training Center and the Federal Records Center to substantiate the [V]eteran's claimed stressful incident, "we have determined that the [V]eteran's declared stressor could not be corroborated," specifically, there being no indications or markers of the Veteran's alleged rape. Significantly, appellant is not shown to have ever sustained a gunshot wound during service, nor are the other stressors supported by any markers expected in cases of claimed sexual trauma. Conclusion The Board has carefully reviewed and considered the Veteran's May 2016 Board hearing testimony, the August 2007 statement accompanying her VA Appeals Form 9, her April 2007 and May 2006 Statements in Support of Claim, her November 2006 statement, and her reports during examinations, as they appear throughout the record. All of these have assisted the Board in understanding better the nature and development of the Veteran's disability. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to her senses and there is no reason to doubt her credibility. However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately findings pertaining to an acquired psychiatric disorder or its relation to service, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Rather, the Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications in the contemporaneous evidence of a nexus to service, it must rely on medical findings and opinions to establish service connection with a current disability. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated and based on the findings, diagnosis and opinion of the October 2012 VA examiner, the Board finds the record does not contain competent medical findings, an adequate opinion or a supporting rationale which establish a direct connection or nexus between the Veteran's service and an acquired psychiatric disorder, to include PTSD, schizophrenia and an adjustment disorder, with depressed mood, and therefore service connection cannot be established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, schizophrenia and an adjustment disorder, with depressed mood, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs