Citation Nr: 1713116 Decision Date: 04/21/17 Archive Date: 04/26/17 DOCKET NO. 11-29 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from December 1994 to December 1998. He also served in the Army National Guard from February 2006 to July 2006, including two weeks Active Duty for Training (ACDUTRA) between July 8, 2006 and July 22, 2006. This matter comes before the Board of Veterans Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2012, the Veteran testified before the undersigned Veteran's Law Judge at a travel board hearing. The transcript of the proceeding is associated with the claims file. The appeal was remanded by the Board in August 2014 for additional development. In November 2015, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), in October 2016 the Court vacated the Board's decision that denied the for entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, and remanded the issue to the Board for appropriate action in accordance with the JMR. In January 2017 the appellant submitted additional evidence in support of his claim and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304 (c) (2016). FINDINGS OF FACT The evidence is at least in relative equipoise as to whether the Veteran's psychiatric disorder, to include paranoid schizophrenia, manifested to a compensable degree within one year of his discharge from service in 1998. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93. For the reasons explained below, the claim of entitlement to service connection for an acquired psychiatric disorder is being granted, and discussion of the VCAA with regard to this matter is therefore unnecessary. Service Connection The Veteran contends that he began to have psychological symptoms during his active duty service in the Marine Corps, although he did not initially seek treatment until 15 months after separation from service. In the alternative, he argues that his psychiatric disorder was "aggravated totally and permanently" during his period of ACDUTRA between July 8, 2006 and July 22, 2006 as evidenced by his medical discharge with provisional diagnoses of delusional disorder and paranoid schizophrenia. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 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). In addition, service connection can be established if the evidence demonstrates that the veteran was disabled from disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or he was disabled from an injury (but not disease) incurred or aggravated during a period of inactive duty for training (INACDUTRA). See 38 U.S.C.A. §§ 101 (21), (24), 106; 38 C.F.R. § 3.6 (a),(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, such as psychoses, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For such diseases, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker, 708 F.3d at 1340. If a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker at 1336; 38 C.F.R. § 3.303(b). Notably, this presumption only applies to active duty service and does not apply to periods of ACDUTRA. Similarly, the presumptions of soundness and aggravation are inapplicable to periods of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010). Although the claimant does not need to show that his ACDUTRA proximately caused the worsening of any pre-existing disability, the definition of aggravation does require that an ACDUTRA claimant establish a causal relationship between the worsening of the pre-existing condition and the period of ACDUTRA. Donnellan v. Shinseki, 24 Vet. App. 167, 173-74 (2010) (citing the definition of aggravation in 38 U.S.C.A. § 1153 and incorporated by 38 U.S.C.A. § 101 (24)). In this situation, the claimant has the burden to establish that the pre-existing disability worsened in service and that such worsening was beyond the natural progression of the disease. Donnellan, 24 Vet. App. at 175. There is no shifting burden as there is when the presumptions of soundness and aggravation apply. Id. To the extent, the Veteran is alleging that his psychiatric disability is a result of injury or disease incurred or aggravated during his time in the National Guard, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a). Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In rendering a decision on 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 evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records from December 1994 to December 1998 show no evidence of treatment for or symptoms of a psychiatric disorder. At his August 2012 hearing before the Board, the Veteran indicated he began to feel different and like people were following him during his 4 years with the Marine Corp, although he did not seek treatment. He indicated that after separation from active duty, while he was in Technical College, he talked to his psychology professor about his concerns and she recommended he seek treatment. Medical records demonstrate that in March 2000, the Veteran initially sought psychiatric treatment upon the recommendation of his psychology professor. It was indicated the Veteran had no treatment history, no prior hospitalizations and that he had never seen a therapist. The Veteran stated that he was addicted to marijuana. He indicated he used marijuana on a daily basis. The treatment provider determined the Veteran had some depressive symptoms but those appeared to be caused by difficulty adjusting to his current environment and possibly secondary to the marijuana. The symptoms included some irritability with difficulty in sleep sometimes, decreased energy, decreased concentration and decreased psychomotor activity. It was noted he had no psychotic symptoms and no other significant symptoms of a mood disorder. The Veteran indicated that he had been depressed two or three weeks because of being kicked out of his mother's house and having to live with his grandparents which was very stressful. The Veteran made no mention of his military service and no mention of any hallucinations or other psychotic symptoms. He was diagnosed with marijuana dependence and depressive disorder, not otherwise specified, rule out adjustment disorder with disturbance of mood. Three years later, in August 2003, the Veteran was court committed to a hospital for a period of 45 days. He stated upon interview that he was committed because his father was "blowing what [he] said out of proportion." His father indicated the Veteran feared he was being chased by the mafia, but, the Veteran denied this. The Veteran indicated his belief that his father was trying to make him "look crazy." The August 2003 treatment note indicated that a social worker contacted his grandmother. She stated that about 6 months after discharge from service in 1998, the Veteran began "acting really paranoid." She stated he "thought that everyone from the mafia to the CIA [was] out to get him and that he [was] even scared to go outside sometimes." In October 2003, the Veteran was assessed with generalized anxiety disorder, alcohol abuse, cannabis abuse and history of psychotic disorder not otherwise specified. It was indicated the Veteran did "not have insight into his mental condition" as indicated by his desire to leave without treatment after being court committed to the hospital. He indicated that he attempted to escape because he was afraid and did not want to "get locked up." The Veteran was given a provisional diagnosis of schizophrenia. The Veteran was hospitalized again between November 2005 and December 2005 for treatment for a delusional disorder. A November 2005 treatment record indicated the Veteran was homeless and unemployed. He came with this father and grandmother saying they were trying to humiliate him. Upon separate interview, the Veteran's father indicated "erratic behavior for the past 6 years." In February 2006, the Veteran entered the Army National Guard. A Retirement Points History Statement indicates ACDUTRA from July 8, 2006 to July 22, 2006. On July 11, 2006, the Veteran was hospitalized for delusional disorder and history of polysubstance abuse after a week of absence without leave (AWOL). See 314th Medical Group Chronological Record of Medical Care (indicating delusional (paranoid) disorder: Rule out Schizophrenia, Paranoid Type). Military Police brought the Veteran to the Emergency Department on orders from his Battalion Commander. The reasons given were that the Veteran went AWOL for a week and during that time, his father contacted command to warn them about "recent increases in odd behavior since he discontinued his medication." See July 11, 2006 Memorandum for 871st Troop Command ARNG Battalion Commander regarding Mental Health Evaluation. Information gathered at the Veteran's evaluation was based on findings at the VA in-patient psychiatric unit, statements from the Veteran's father and the Veteran's own statements upon interview. Id. A history of serious mental illness and disturbed behavior since approximately age 24 was noted. The Veteran was noted to have demonstrated serious paranoia involving delusions of persecution, a pattern of disappearing from where he is supposed to be, threats and physical assaults against others and two psychiatric hospitalizations for psychosis. At his evaluation, the Veteran indicated his belief that he was being conspired against and his civil rights were being violated, but he could not communicate a rationale for such beliefs. His perception and memory of events in his personal history conflicted with other information of record. It was found that he was likely to demonstrate impairment in judgment, reliability and performance that could negatively impact his ability to act in his military capacity and that he was not suitable for continued military service. Medical records during that time indicate that on July 12, the Veteran was positive for delusion. On July 21, based on his delusional thought content, it was felt the Veteran remained a danger to his family and was thought not to be taking his medications. On July 23, he exhibited suspiciousness of his father and hospital staff and asked to be transferred to a VA facility in Texas to get away from Arkansas and his family. On August 2, he was transferred to the Serious and Persistent Illness section (1H) for further treatment and he was monitored closely for medication compliance. He remained "quite paranoid and isolative with limited interaction with staff or peers." He indicated he was not sure why he was put in the hospital and that he did not have a mental illness. The Veteran was discharged on August 8, 2006; his separation from the National Guard took effect on July 22, 2006 while he was still an in-patient. In September 2006, the Veteran was admitted to 1H after an unscheduled appointment in the Mental Health Clinic. He stated he was homeless, jobless, with no reliable support network and that he "[could not] go on." He stated he did not want to go to the hospital, but he did not feel safe because something was going to happen. He could not elaborate on the reason he felt unsafe or the nature of his fear. He was diagnosed with schizophrenia. Treatment records indicate continuing treatment for paranoid delusions and auditory hallucinations. A March 2007 Social Security Administration Mental Diagnostic Evaluation report contained a diagnosis of paranoid schizophrenia with a reported history of onset of symptoms at the age of 27 or 28. A July 2008 VA treatment note recorded a history of psychiatric disturbance in 1995 manifested by numerous somatic complaints which could not be accounted for by objective findings. Reportedly, less than a year after discharge from service "odd" behaviors and beliefs troubled him. In August 2009, the Veteran submitted a statement from a VA psychiatrist, Dr. M.W., who stated that the Veteran's psychiatric disorder was directly related to his military service since that was the reason he was discharged from the Army National Guard. The doctor indicated the Veteran continued to struggle with mental illness and his condition was unlikely to improve. In August 2010, the Veteran submitted a private opinion from a Dr. G.W., who also noted that the Veteran was discharged from the National Guard in 2006 due to delusional disorder paranoid type and R/O schizophrenia. The doctor stated: "Over the course of his treatment it has become clear that he suffers from Schizophrenia and this was as likely as not triggered by his military service as this is when his symptoms began." The doctor also noted that although drugs and alcohol were a problem for the Veteran, he had "clearly shown symptoms of schizophrenia even during times of sustained sobriety." No mention was made of treatment in 2003 several years prior to enlisting with the National Guard. In August 2014, the Board remanded the claim for a medical opinion as to whether any diagnosed acquired psychiatric disorder was causally or etiologically related to the Veteran's period of active duty between 1994 and 1998 and/or whether the psychiatric disability present prior to the Veteran's service with the Army National Guard was aggravated (i.e. increased in severity) beyond its natural progression between July 8, 2006 and July 22, 2006 while he was on ACDUTRA. In January 2015, a VA psychologist reviewed the claims file. She did not discuss the March 2000 treatment record and instead focused on records dated in 2003. She noted that the Veteran had been diagnosed with a psychiatric disorder prior to his active duty time in the Army National Guard in 2006. He had last been treated for this problem with inpatient VA treatment in December 2005 (at which time he left against medical advice). Records would suggest that he was not taking any psychotropic medications between this hospitalization and his July 2006 admission. She indicated that persons with this type of chronic mental illness were likely to have increased problems with symptoms when not on psychotropic medication, such as those problems reported by the Veteran at the time of his July 2006 hospitalization. Accordingly, she opined that it was less likely as not that the Veteran's psychiatric disorder was aggravated beyond its natural progression by his service with the Army National Guard in July 2006. With regard to the January 2015 VA examination, the parties in the JMR agreed that the examiner improperly relied on the absence of any psychiatric treatment following the Veteran's discharge in 1998 through July 2003, in finding that the Veteran's psychiatric disorder was not service related. The parties noted that the evidence documented treatment for depressive disorder in March 2000. Thus, the parties agreed that the opinion appeared to be based on an inaccurate factual premise and was therefore of little probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In a medical statement in May 2015, the Veteran submitted an opinion from a Dr. J.M., who indicated the Veteran was unemployed and totally disabled. She opined that the Veteran's mental health disability was directly related to his military service, supported by the fact that this was the reason he was discharged. In a statement in November 2016, Dr. J.M. noted that the Veteran suffered from schizophrenia, which was stable, but rendered him unemployable. Dr. J.M. noted that schizophrenia typically had its onset in the early 20's, which in the Veteran's case, coincided with his period of service from 1994-1998. In support of his claim, a private psychologist, Dr. C.L.R., prepared a medical opinion report in January 2017 which supports the claim. Dr. C.L.R. reported having reviewed the evidence of record, to include outpatient and inpatient treatment records, psychiatric examination reports and the VA examination report. Dr. C.L.R. opined that the Veteran's schizophrenia was at least as likely as not related to military service. Dr. C.L.R. noted that the Veteran had carried a diagnosis of either delusional disorder or schizophrenia since 2003. She indicated that the Veteran's depressive episode in 2000 was part of the same chronic condition which initially became symptomatic some months after separation from active service, as evinced by his family's reported onset of observed paranoid behaviors. The psychologist explained that schizophrenia could only be diagnosed in retrospect and was not always initially accompanied by floridly psychotic symptoms. The Dr. C.L.R. noted that per the DSM-V, prodromal symptoms, such as depression, usually preceded the active phase of the disorder. Significantly, the Veteran was not diagnosed with depression after 2000. As such, it was more likely than not that his early depression was a manifestation of schizophrenia than a distinct disorder. Additionally, while he was not always psychotic, there was a long standing history of paranoia, as reported by the Veteran and his family members. In this regard, at the time of his first admission in 2003, the Veteran's father and grandmother provided collateral histories of paranoid and erratic behavior approximately six months after service discharge in 1998. Dr. C.L.R. noted that these reports were consistent with the early phases of schizophrenia. The clinician indicated that it was not unusual for individuals, such as the Veteran, to exhibit a gap between onset of symptoms, seeking treatment, and ultimately being diagnosed with schizophrenia, as the course of the disease typically was characterized by a slow decline. Therefore, she concluded that it was more likely than not that the Veteran's schizophrenia initially became symptomatic within months of service discharge in 1998. In this case, the Board finds that all medical opinions of record were submitted by competent medical professionals who either had access to the claims file and medical records and were aware of the Veteran's medical history and sufficiently informed to make a judgment on the etiology of his acquired psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (stating that a medical opinion may not be discounted solely because the examiner did not review the claims file). The Board agrees with Dr. C.L.R. that the Veteran's an acquired psychiatric disorder, to include paranoid schizophrenia, likely became manifest within one year from service discharge in 1998. In this regard, in statements rendered in connection with treatment, the Veteran and his family consistently provided a history of paranoia and erratic behaviors exhibited a few months after discharge from service in 1998. Additionally, the competent medical evidence, specifically the medical opinion of Dr. C.W.L., supports a finding that schizophrenia typically has onset the ages of 20 to late 20's which coincides with the Veteran's first period of service. Dr. C.W.L. further noted that prodromal symptoms of schizophrenia, such as depression, usually preceded the active phase of the disorder, which likely explained the Veteran's episode of depression in 2000, and furthermore, it was not uncommon nor unusual for individuals, such as the Veteran, to exhibit a gap between onset of symptoms, seeking treatment, and ultimately being diagnosed with schizophrenia, as the course of the disease typically was characterized by a slow decline. 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) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a) (2016). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2016). With regard to the Veteran's claim for service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Accordingly, after resolving all doubt in the Veteran's favor, the Board finds that the balance of positive and negative evidence is in relative equipoise as to whether the Veteran's an acquired psychiatric disorder, to include paranoid schizophrenia, as likely as not became manifest to a compensable degree within one year of his discharge from service in December 1998, and service connection is granted. 38 U.S.C.A. § 5107 (b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs