Citation Nr: 1806145 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 08-18 813 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include PTSD and schizophrenia. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to March 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which declined to reopen a previously denied claim of entitlement to service connection for PTSD. In March 2013, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This case was previously before the Board in September 2013 and August 2015, when it was remanded for further development, particularly with respect to the identified stressor upon which the claim of PTSD was based. The requirements are satisfied with respect to the diagnosis of schizophrenia. However, the remand instructions with respect to PTSD have not been satisfied and this case must, unfortunately, be remanded yet again. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for PTSD is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence does not show that the Veteran's diagnosed schizophrenia had its onset in service or within one year of service separation or is any other way related to his military service. CONCLUSION OF LAW The criteria for service connection for schizophrenia have not been met. 38 U.S.C. §§ 1110, 1112, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veteran's claim and decided entitlement based on the relevant medical and lay evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his appeal. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board.")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. As the Veteran served for 90 days or more, psychosis (including schizophrenia) will be presumptively service-connected if it manifested to a degree of 10 percent or more within one year after separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a), 3.384. Service connection may be granted for a listed chronic condition where there is competent and credible evidence of continuity of symptomatology after service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013); 38 C.F.R. § 3.303(b). Facts and Analysis The Veteran has sought service connection for PTSD. The record shows that he has a longstanding diagnosis of schizophrenia. Given that both of these diagnoses are acquired psychiatric disabilities, the Board is obligated to address both PTSD and schizophrenia in light of the holding of Clemons v. Shinseki, that the Board must broadly construe claims to include other disabilities with similar symptomatology. 23 Vet. App. 1, 4-5 (2009) (per curiam). PTSD is specifically addressed in the remand section below. In February 1975, the Veteran was seen at a VA facility for treatment of psychiatric symptoms including an abrupt change in behavior, having become abusive toward his wife, and hearing voices threatening to shoot him. The provider at that time diagnosed alcohol and marijuana abuse "in an (sic) most inadequate personality." (See VA 10-1000 Hospital Summary, received 04/25/1975, p. 1.) The provider stated that it became obvious during the interview that the Veteran's problems had begun about four months prior, rather than several years before as the Veteran asserted. This determination was based on statements by the Veteran's wife. In August1975, the Veteran was admitted to a VA facility for treatment of psychiatric symptoms. At that time, he was diagnosed with schizophrenia based on symptoms of loosening of associations, labile effect, nervousness, and inappropriate emotions and behavior. (See VA 10-1000 Hospital Summary, received 10/08/1975, p. 1.) He was placed on appropriate medications and found competent and discharged. (p. 2.) In March 1989, the Veteran was treated for psychiatric issues, with a diagnosis of schizoaffective disorder. (See Medical Treatment, received 03/22/1989, p. 1.) Mental health treatment notes showed that the Veteran was treated in 1991 and 1992 for paranoid schizophrenia and alcohol addiction. (See Medical Treatment, received 08/13/1992, p. 3.) His symptoms included hallucinations, paranoid delusions, occasionally threatening, and a poor history of compliance with medication. (p. 12.) A VA examination in January 1993 documented the Veteran's mental health history and prior diagnoses. (See VA Exam, received 01/08/1993, p. 4.) He reported that if he stopped taking his medication, he heard the voices more, but Haldol made him drowsy and made it harder to work. The voices threatened to kill him and he had visual hallucinations, including hearing God talking to him when he went to church. He gave a history of three marriages, with his current marriage being troubled. He was suspicious and evasive on examination, but was able to organize his thoughts and express himself adequately. The examiner diagnosed paranoid schizophrenia, which was chronic and moderately severe, with moderate to marked incapacitation for social and occupational functioning. (p. 5.) A February 1993 rating decision awarded non-service-connected pension for paranoid schizophrenia and active psychosis. (See Rating Decision, received 02/04/1993, p. 1.) A Formal Finding entered in May 2008 noted that the VA medical treatment records for 1971 and 1972 in Dallas and North Texas could not be located and were therefore unavailable for review. (See VA Memo, received 05/08/2008, p. 1.) At the Board hearing in March 2013, the Veteran testified that his first stressful experience in service was with a drill sergeant during basic training. (See Legacy Content, Hearing Transcript, 04/26/2013, p. 14.) The Veteran and the drill sergeant was a forceful individual who wanted to take the Veteran out in the woods and fight him. He stated that he first started having mental health symptoms at the time of that incident. He also testified that his first treatment for mental health symptoms was in the 1970s at the VA hospital. The Veteran was treated at VA in April 2014 for ongoing mental health issues, which had recently been exacerbated. The provider noted a diagnosis of chronic paranoid schizophrenia since the 1970s with a history of treatment on and off over the years and regular use of medication. (See Medical Treatment Record, 05/21/2014, pp. 6-9.) His wife reported that he had been more irritable of late and had been having increased difficulty distinguishing reality from fantasy. (p. 11.) A VA examination in June 2016 concluded that the Veteran does not have PTSD but does have chronic paranoid schizophrenia. (See C&P Exam, received 06/15/2016, p. 1.) The Veteran's symptoms were listed as delusions, hallucinations, disorganized speech, grossly disorganized behavior, affective flattening, and avolition. The examiner concluded that the Veteran's schizophrenia was not incurred in or caused by his military service. This opinion was based on the fact that schizophrenia did not manifest until a few years (1974) after service separation, and only after he began using drugs such as codeine and marijuana. The examiner also stated that since mental illness was not present prior to service, it could not be "aggravated" by the military. (See C&P, received 07/18/2016, p. 1.) The Veteran's representative submitted a brief in January 2018 with respect to the claim of entitlement to schizophrenia. (See Appellate Brief, received 01/2/2018, p. 2.) Specifically, the representative argued that the Veteran's schizophrenia was manifested to at least a 10 percent disability level within one year of service separation, as demonstrated by the fact that his first marriage ended after 8 months and the Veteran's wife alleged he was physically abusive. The representative also noted the Veteran's inpatient treatment for schizophrenia, at which time he was hearing voices threatening to shoot him and the sound of a gun clicking for years, and the Veteran's testimony at the Board hearing that he had begun hearing voices in service after the drill sergeant had threatened to shoot him. After reviewing all of the evidence of record, to include that set forth above, the Board finds that service connection for the acquired psychiatric disability of schizophrenia is not warranted. The record does not show that the Veteran had any symptoms, complaints, treatment, or diagnosis of schizophrenia in service. Likewise, the record does not show any evidence of schizophrenia within the first year after service separation. Rather, the first evidence with respect to symptoms of schizophrenia points to the onset of such symptoms in late 1974, more than 4 years after service separation. The Board finds support for this finding based on the Hospital Summary (with admission date in February 1975) and from the 2016 VA examination report indicating that psychosis was not present until after the Veteran began using drugs. For these reasons, direct service connection and presumptive service connection are not warranted. Likewise, the evidence is against any finding that the development of schizophrenia after service separation is attributable to any events or incidents in service. Rather, as stated above, the treating provider in February 1975 and the VA examiner in June 2016 both concluded that the Veteran's symptoms began in late 1974 after he began abusing codeine and marijuana. This determination was based on contemporaneous descriptions by the Veteran's wife and on a complete review of the mental health treatment records. The Board finds both opinions to be persuasive and convincing and deserving of much weight. Notably, there is not any objective medical evidence to the contrary nor has the Veteran provided any persuasive lay statements to the contrary. The Board has considered the statements made by the Veteran's representative, but does not find that they contain any basis for a grant of service connection for schizophrenia. Specifically, the statement regarding the Veteran's first marriage ending after a short period of time and allegations that the Veteran was physically violent does not, in itself, demonstrate that he had schizophrenia or any other psychiatric disorder at that time. In addition, the Veteran's statements of hearing voices and the sound of a gun clicking, made to the VA mental health provider in 1975, were addressed by that provider as not demonstrating an onset of symptoms within the first year after service. For the reason noted above, the Board finds that the 2016 opinion by a VA psychologist outweighs the contention in the 2018 brief. Therefore, the Board concludes that the preponderance of the evidence is against a finding that the Veteran's currently diagnosed schizophrenia is related to his active military service. Inasmuch as it was not manifested before service, it was likewise not aggravated by service. See, e.g., July 2016 VA examination addendum. As the preponderance of the evidence is against claim the benefit of the doubt standard of proof does not apply and service connection is not warranted. 38 U.S.C. § 5107(b). ORDER Service connection for schizophrenia is denied. REMAND The Veteran's claim of service connection for an acquired psychiatric disability is based on his assertion that he has PTSD. The Veteran has consistently reported a stressor event in service regarding witnessing the death of a friend and fellow service member from exertion at Fort Bragg. He named this individual and service personnel records have shown that he indeed served with an individual named Wallace Antwine. The records also provided the Social Security Number for this individual (See Military Personnel Records, received 12/31/2013, p. 23). However, due to confusion, earlier searches of federal records were performed using the name of Antoine or Antwine Wallace. All such searches yielded negative responses. In the August 2015 remand, the Board instructed that all federal records be searched using the correct name and the Social Security Number. Included on that list were the VA records systems, such as VBMS and Virtual VA. While a search of some federal records was performed, it again reversed the order of the names of the individual, referring to Antoine of Antwine Wallace, rather than Wallace Antwine. (See DPRIS Response, received 12/11/2015, p.1.) In addition, that response and another received in May 2016 both stated that further research on the incident should be done through the US Army Crime Records Center in Quantico. (See DPRIS Response, received 05/31/2016, p. 1.) No attempt was made to locate any relevant VA records which would show whether or not the individual died in service or went on to seek VA benefits after separation. Further, the Veteran's representative argued that additional steps to verify the incident through the US Army Crime Records Center in Quantico should have been taken, and the Board concurs that such should be done if the search of the records, to include VA record systems, does not reveal evidence that the individual was alive after 1968. Accordingly, the case is REMANDED for the following actions: 1. Request a search by all appropriate government records custodians with respect to the alleged death in service of Wallace (first name) Antwine (last name) in 1968. Such efforts should include a search of relevant VA records, to include Virtual VA, and VBMS to determine if there is any evidence that Wallace Antwine was alive after 1968. The individual's Social Security Number or Military Identification Number, as shown in the personnel records, should be used in performing such searches. Formal statements regarding the efforts to locate any such records should be placed in the claims file. In the event that the search indicates that the individual in question did not die in 1968, as claimed by the Veteran, he should be so advised in writing. If, after all due diligence, it is determined that any of the records are unavailable or further efforts to obtain them would be futile, the Veteran and his representative should be so advised in accordance with the provisions of 38 C.F.R. § 3.159(e). If the search above does not show that the individual in question was alive after the incident in service claimed by the Veteran, the efforts to verify the stressor should include another request to the US Army Crime Records Center, being sure to identify the victim correctly (Wallace (first name) Antwine (last name)). 2. Once all such searches have been conducted and the results included in the claims file, with notices to the Veteran and his representative, if any, readjudicate the issue on appeal. If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative an opportunity to respond. 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs