Citation Nr: 18145230 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 07-00 446 DATE: October 30, 2018 ORDER Service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is granted. REMANDED Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for PTSD is remanded. FINDING OF FACT Resolving all doubt in his favor, an acquired psychiatric disorder other than PTSD is related to the Veteran’s service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from February 1969 to February 1971, to include a tour of duty in Vietnam. The appeal originated from a May 2006 rating decision of the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA). Specifically, the May 2006 rating decision found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for PTSD. Thereafter, in a January 2010 Board decision, the Board also found that the Veteran had failed to submit new and material evidence to reopen a previously denied claim of entitlement to service connection for PTSD but remanded a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD to the RO for adjudication. In a decision dated in March 2012, the Board, in part, denied service connection for an acquired psychiatric disorder other than PTSD, to include psychosis. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In an Order dated in November 2012, pursuant to a Joint Motion for Remand, the Court vacated the Board’s March 2012 decision and remanded that issue back to the Board for additional development consistent with the Joint Motion. In July 2013, the Board remanded the psychiatric issue for additional evidentiary development. Subsequently, in a decision dated in November 2016, the Board again denied service connection for an acquired psychiatric disorder other than PTSD, to include psychosis. The Veteran, again, appealed the Board’s decision to the Court and, in a March 2018 Memorandum Decision, the Court vacated the Board’s November 2016 decision and remanded the case back to the Board pursuant to the Memorandum Decision. . Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Calusa v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service treatment records reflect no complaint of, treatment for, or diagnosis of, an acquired psychiatric disorder at any time during service. Significantly, the Veteran was examined at service separation in February 1971 and was found to have a normal psychiatric system. Service personnel records, however, suggest that the Veteran may have experienced troubles acclimating to military life as he went AWOL (absent without official leave) for approximately four days in February 1971. Less than one year after his February 1971 discharge from service, the Veteran was admitted for VA hospitalization in December 1971, specifically for “Drug dependence, heroin,” and “Psychosis with drug intoxication, (withdrawal phase), heroin.” At that time, the Veteran reported that he was taking three injections per day of heroin, he had been on heroin since June 1970, and started taking heroin in Vietnam. The examiner described the Veteran’s past history as “not really very important.” On admission, he showed no peculiarities of speech or behavior. However, according to the report, after the drugs were withdrawn, it was difficult to control his activity. He became hallucinated; he reported seeing rats under his bed; he was unable to follow conversation; he was resistive, and at one time struck another patient. He removed his clothing and talked in a vulgar manner in front of women. The Veteran did not remember any of this. The examiner assessed that the Veteran’s behavior was the equivalent of a delirium in an alcoholic once alcohol was withdrawn. The Veteran again required hospitalization in August 1990, at which time he was seeking admission for a PTSD treatment program. The Veteran’s history of heroin abuse was noted and the diagnoses included dysthymic disorder, poly-substance abuse (alcohol and marijuana), and personality disorder not otherwise specified. The report of VA examination in November 1990 reveals complaints of nightmares flashbacks, and problems with his nerves, related to his experience in the service as well as other problems. The Veteran reported past problems with drug use and alcohol abuse. He denied any hospitalization while he was in the service. It was noted that, after service, he earned an Associate’s Degree in General Education in 1977 and attended additional schooling from 1978 to 1979. The diagnosis was delayed PTSD. The Veteran again sought admission to the PTSD unit in August 1991. At that time, it was noted that he was free of psychosis but complained of anxiety and depression, which he reported had occurred off and on since he left the service. The diagnosis was PTSD. A psychiatric review conducted on behalf of the Social Security Administration in May 1993 found the presence of anxiety related disorders and substance addiction disorders, but no psychotic disorders. The Veteran had ongoing treatment for heroin dependence and methadone maintenance with VA in subsequent years. In November 1993, the Veteran underwent a PTSD intake screening. He reported that he became addicted to heroin in Vietnam and this continued post-service. The Veteran reported currently using heroin, marijuana, crack cocaine, and alcohol. He reported hearing voices speaking in foreign languages in dreams and while awake. The examiner’s assessment was focused on “significant problems with addiction to heroin.” The Veteran was afforded a PTSD examination in December 1998 at which time he reported hearing “some voices but they did not seem like hallucinations. He said the people talk a foreign language and sometimes he might see a flash in his head like he might see in Vietnam.” The examiner found that these seem more like manifestations of PTSD and not psychosis. VA treatment records reflect ongoing treatment for depression and continued descriptions of hearing voices over subsequent years. In April 2001, the Veteran was diagnosed with psychosis, not otherwise specified (NOS). In connection with the Veteran’s claim, he submitted a private medical opinion dated in April 2013, from P. Orr, Ph. D. Significantly, Dr. Orr diagnosed schizoaffective disorder, PTSD, opioid dependence (in remission), polysubstance dependence (opioid, alcohol, cocaine) in early partial remission. Dr. Orr interviewed the Veteran and his wife in preparation of the report. The Veteran’s wife stated that the Veteran was a very different person upon his return than before his time in Vietnam, as “sometimes almost a stranger, he talked like a crazy person I didn’t know, he could be mean, apt to be violent, scary, then be ok for a time. He never got back.” Dr. Orr opined that the Veteran experienced psychosis, specifically a symptom of schizoaffective disorder, within one year of his discharge from active duty. Further, the illness, including psychosis, manifested to a compensable degree at that time of ten percent. According to Dr. Orr, the Veteran still suffers from the same psychosis. While Dr. Orr acknowledged the Veteran’s substance abuse in 1971, she reasoned that this was merely masking the Veteran’s psychosis, not causing it. Dr. Orr noted that serious and persistent psychiatric disorders, such as schizoaffective disorder, are thought to have a degree of genetic causation, but that environmental stress is thought to play a part in the course of the illness. According to Dr. Orr, a combat situation such as the veteran found himself in Vietnam as likely as not exacerbated a pre-existing vulnerability to this chronic and persistent illness. In a May 2014 examination report, a VA psychologist found that the Veteran had a history of schizophrenia-spectrum and other psychotic disorders, with overlaid major depressive disorder (schizoaffective disorder). The psychologist opined that the psychotic symptoms more likely presented after service discharge and that the Veteran’s long-standing diagnosis of chronic schizoaffective disorder was not caused or incurred during the Veteran’s military service. The rationale was that the earliest VA psychological examinations do not reflect a psychosis originating in service or psychotic-spectrum symptoms while in service. Additionally, although the Veteran reported that he experienced symptoms of psychosis while in Vietnam, these reports were vague and not sufficient for an independent diagnosis of a psychotic spectrum disorder, particularly as he was ingesting large quantities of heroin and opium (intravenous and smoked) while stationed in Vietnam, which were found more likely the cause of his reported hallucinations. Another opinion was obtained in September 2015. A VA clinical psychologist opined that the claimed psychiatric disorder was less likely than not (less than 50 percent probability) incurred in or caused by service. The rationale was that psychiatric symptoms were not found during service or for several years after discharge. According to the psychologist’s review, it was not until the mid-1990’s that a psychotic spectrum disorder diagnosis was made. She found no indication of symptoms being present in the previous 20 years. Regarding the notation of psychosis in 1971, the VA psychologist found no indication that this represented a psychotic disorder as, according to her review, the pertinent records clearly show a substance-induced psychosis, which has a different etiology than a psychotic disorder. In other words, he was treated for acute intoxication of intravenous heroin. The VA psychologist found that the Veteran’s symptoms were related to his heroin use at that time (1971) and were less likely than not an early manifestation of schizoaffective disorder. Addressing the opinion of Dr. Orr, that the Veteran’s substance abuse in 1971 was merely masking a psychosis, not causing it, the VA psychologist noted that chronic heroin use precludes the ability to determine whether other mental health symptoms were present, due to intoxication. Beyond that preclusion, self-medication or substance use of any kind cannot be assumed to be masking mental health symptoms as they often occur together, but are not dependently related. According to the VA psychologist, research demonstrates that chronic, persistent, intravenous opiate use often results in symptoms of psychosis that persist well beyond cessation. This pattern is consistent with the Veteran’s intravenous heroin use, which did not cease until at least the late 1980s, with a diagnosis of psychotic-spectrum disorder occurring in the early 1990s. With more than 20 years in between the Veteran’s service and the diagnosis of a psychosis, she found no evidence to support the continuous presence of psychotic symptoms during that period. Dr. Orr provided a supplemental opinion in November 2015. Much of her discussion appears focused on challenging the findings of the September 2015 VA psychologist. However, several specific points were made in the opinion. She asserted that all major mental disorders are “stand-alone” disorders and in no instance is one caused by another. She asserted that psychosis caused by opiate abuse can co-exist with a true psychotic disorder. She asserted that chronic heroin use does not result in persisting psychosis after the cessation of use. And, she asserted that, in this case, the Veteran had a co-occurring substance use disorder and one or more other psychiatric disorders in service, and at the time of his 1971 treatment.  Analysis Upon review of the evidence, the Board finds that the evidence of record is in relative equipoise and, affording the Veteran the benefit of the doubt, service connection for an acquired psychiatric disorder other than PTSD is warranted. As an initial matter, the Board finds that the Veteran has a current diagnosis of schizoaffective disorder. Also, while the Veteran’s service treatment records are negative for psychiatric problems, post-service treatment records show a diagnosis of psychosis within one year of the Veteran’s discharge from military service. Moreover, while the March 2014 and September 2015 VA opinions found that the Veteran’s psychiatric disorders are unrelated to his military service, as noted in the March 2018 Memorandum Decision, these medical opinions contain inconsistencies. Specifically, the March 2014 VA opinion notes that the Veteran used drugs to cope with in-service stressors but appears to ignore this fact in the medical opinion. Furthermore, the September 2015 VA opinion first says that it is impossible to provide a medical opinion given the Veteran’s chronic heroin use but then proceeds to provide a negative medical opinion. Also, the September 2015 VA opinion inaccurately relied on an absence of psychiatric symptoms from service to the early 1990s. In contrast to the negative opinions of record, the April 2013 and November 2015 private opinions from Dr. Orr have related the Veteran’s psychiatric disorders to his military service and Dr. Orr has provided a reasonable basis for the positive opinions. Accordingly, the Board resolves all doubt in favor of the Veteran and finds that an acquired psychiatric disorder other than PTSD is related to his service. Therefore, service connection for such disorder is warranted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; Gilbert, supra. REASONS FOR REMAND With regard to the PTSD issue, in a May 2017 rating decision, the RO continued a previous denial of service connection for PTSD. Later that month, (within one year of notification of the May 2017 rating decision), the Veteran entered a notice of disagreement (NOD) with the agency of original jurisdiction (AOJ). When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to an SOC. See 38 C.F.R. § 19.26. Unfortunately, the AOJ has not yet acknowledged receipt of the NOD and does not appear to be actively developing this claim. Thus, remand for issuance of an SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). However, this issue will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matter is REMANDED for the following action: An SOC regarding the May 2017 continuation of a previous denial of service connection for PTSD should be issued to the Veteran. He should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to this issue is perfected within the applicable time period, then such should return to the Board for appellate review. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD April Maddox, Counsel