Citation Nr: 18151419 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 14-41 311 DATE: November 19, 2018 ORDER The Veteran’s petition to reopen a claim for entitlement for service connection for an acquired psychiatric disability to include schizophrenia and bipolar disorder is granted. Entitlement for service connection for an acquired psychiatric disability to include schizophrenia and bipolar disorder is granted. The Veteran’s petition to reopen claim for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Evidence received since October 1996 rating decision relates to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disability to include schizophrenia and bipolar disorder. 2. Evidence received since October 2010 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD. 3. The Veteran’s acquired psychiatric disability to include schizophrenia and bipolar disorder has been linked by a medical professional to his active service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim for service connection for an acquired psychiatric disability to include schizophrenia and bipolar disorder has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. New and material evidence to reopen the claim for service connection for PTSD has not been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for acquired psychiatric disability to include schizophrenia and bipolar disorder has been met. 38 U.S.C. § 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to June 1992. In March 2018, the Veteran and his mother Ms. K.F. testified before the undersigned at a Board of Veterans’ Appeals (Board) video conference hearing. The hearing transcript is of record. The Veteran’s attorney sought and was granted an extension of time in order to submit additional evidence. The record reflects that additional clinical evidence pertaining to the issues on appeal have become associated with the claims file since the issuance of the September 2014 statement of the case (SOC) and July 2015 Supplemental SOC. Pursuant to 38 U.S.C. § 7105 (e)(1), (2), the Veteran waived consideration of the additional information by the Agency of Jurisdiction in correspondence dated in July 2018. The Board is thus able to consider the additional evidence in the first instance. See 38 C.F.R. § 19.38 (b)(3), 20.1304(c) (2017). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran’s claim for service connection for a psychiatric disability, is deemed to include any psychiatric disability, and has been recharacterized as entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and bipolar disorder. Petition to Reopen The application to reopen the claim for entitlement to service connection for an acquired psychiatric disability including schizophrenia and bipolar disorder is granted. Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can neither be cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.15 (a); Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). The Board will generally presume the credibility of the newly submitted evidence for the purpose of determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). a) Acquired psychiatric disability Here, the claim for entitlement to service connection for an acquired psychiatric disability was first denied in the October 1996 rating decision because there was no evidence that the Veteran’s psychiatric disability occurred in or was caused by service. The Veteran did not file a notice of disagreement. Thus, it became a final decision. See 38 U.S.C. §§ 7105, 38 C.F.R. § 20.1103. At the time of the October 1996 rating decision, the evidence of record included the Veteran’s service treatment records (STRs) and private treatment records dated through July 1996. These records failed to confirm a nexus between the Veteran’s psychiatric disability and active service. The evidence received since the October 1996 rating decision includes private psychiatric treatment records, including psychiatric evaluations, Social Security Administration records, several lay statements from the Veteran’s friends and family (see VA Form 21-4138, Statement in Support of Claim), the Veteran’s testimony at the March 2018 Board hearing, and a July 2018 psychiatric evaluation from Dr. Q. A.-S. The Board finds that the evidence is new as it was not previously before the agency and it is relevant because the psychiatric evaluation from Dr. Q. A.-S. relates to the issue of nexus. Accordingly, the Veteran’s claim for an acquired psychiatric disability is reopened based on new and material evidence. b) PSTD Here, the claim for entitlement to service connection for PTSD was initially denied in October 2010 because the Veteran did not have a diagnosis of PTSD. See October 2010 Rating Decision. The Veteran was notified of this decision but did not appeal the decision, thus it became a final decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the October 2010 rating decision, the evidence of record included the Veteran’s STRs, the Veteran’s claim for PTSD (VA Form 21-0781), and private treatment records dated through August 2010. These records failed to confirm that the Veteran had a diagnosis of PTSD. Relevant evidence since the October 2010 rating decision, includes the following: private psychiatric treatment records, including psychiatric evaluations, Social Security Administration records, the Veteran’s testimony at the March 2018 Board hearing, and a July 2018 psychiatric evaluation from Dr. Q. A.-S. After reviewing the record, the Board finds that the Veteran’s application to reopen the previously denied claim for PTSD must be denied, because the evidence is cumulative and it is not material because it does not show that the Veteran has ever been diagnosed with PTSD. See Anglin v. West, 203 F.3d 1343, 1347 (2000) (evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board). Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection is denied. Service Connection The Veteran contends that he is entitled to service connection for an acquired psychiatric disability. See May 2010 VA Form 21-0781. Specifically, the Veteran stated, “I started being affected with my 1st psy[chotic] episode in Navy basic training. I’ve since had five more episodes over the years. I’ve been to several mental institutions and would like ot be awarded with my benefits.” Id. Legal Criteria Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F. 3d 1331, 1337 (Fed. Cir. 2013). (“Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was ‘noted’ during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.” (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); 38 C.F.R. § 3.310 (2017). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When a claimant seeks benefits and the evidence for and against the claim is in relative equipoise, the claimant prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for a claim to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Factual Background The Veteran’s entrance examination indicated normal psychiatric clinical findings. See January 1991 Report of Medical Examination, STR-Medical. However, the Veteran was admitted for psychiatric inpatient hospitalization from May to June 1992 due to inappropriate behavior including walking into walls and endorsing racing thoughts. See Narrative Summary, STR-Medical. The Veteran also admitted to drug use and the drug urine test was positive. See June 1992 Test results, in STR-Medical. The hospitalization records indicated the Veteran was being assessed for rule/out schizophrenia and alteration of thought process. The Veteran’s discharge report assessed the Veteran with adjustment disorder with mixed emotional features, personality disorder not otherwise specified, and cannabis dependence. See Narrative Summary. The Veteran was discharged from active service based on these findings. See June 1992 Psychiatry Consultation in STR-Medical (recommending discharge). The Veteran’s post service treatment records confirm that he began receiving psychiatric treatment for psychiatric symptoms and disabilities including schizo-affective disorder, drug and alcohol abuse as early as December 1993. See August 1995 Piedmont Area Mental Health record. The Veteran has also been hospitalized due to psychiatric conditions several times including a May 1997 hospitalization for an overdose of Doxepin, an antidepressant medication. See May 1997 Hamlet Hospital Record. He was assessed with schizoaffective disorder and drug and alcohol dependence. He was prescribed Haldol, Zoloft, and Trazodone. Id. The Veteran submitted six lay statements dated December 2001 from family and friends which attest that the Veteran’s personality changed drastically following active service from being outgoing, friendly, and intelligent to being withdrawn and showing symptoms of a mental illness. See VA Forms 21-4138 received March 2002. For example, a statement from Ms. W.I. stated that the Veteran was a “smart, brilliant, and vivid young man before entering into the Navy. I noted a change in him when he came out of the Navy. I noticed he talked about off the wall things.” See December 2011 VA Form 21-4138, Statement in Support of Claim from W.I. The Veteran was also involuntarily committed for inpatient psychiatric care in January 2002 due to paranoid and religious delusional ideation. See Moore Regional Hospital record. He was assessed with schizophrenia paranoid type. Id. He was prescribed Depakote, Clonidine, and Zyprexa. In August 2003, the Veteran underwent a psychiatric evaluation in connection with a Social Security disability claim. See Evaluation of Dr. G.V. The Veteran endorsed auditory hallucinations, paranoia, anxiety, depression, and inability to sleep. Id. Dr. G.V. diagnosed the Veteran with schizophrenia undifferentiated type, chronic. Id. He also opined that the Veteran’s psychiatric conditions would impair his ability to work because he “takes many psychotropic medications on a routine basis and continues to evidence psychotic symptoms.” Id. The Veteran underwent another psychological evaluation in August 2012. See Dr. W.W. Psychological Evaluation. Dr. W.W. diagnosed the Veteran with bipolar disorder and generalized anxiety disorder. He also noted that the Veteran “had a completely benign psychological and psychiatric history” prior to active service. Id. He also found that the Veteran did not currently have a personality disorder. Id. Dr. W.W. also provided another psychological evaluation in February 2014. See Psychological Evaluation from Dr. W.W. In this evaluation, Dr. W.W. noted that the Veteran has had at least 7 to 8 psychiatric hospitalizations and that he was currently taking the following psychotropic medications: Depakote, Haldol, Cogentin, and Trazodone. Id. Dr. W.W. noted that the Veteran “did not tolerate military stress and was discharged. Although he was diagnosed with Personality Disorder, there is no evidence that he has or ever had such a disorder.” Id. The Veteran testified that the March 2018 Board hearing during active service that he heard voices and felt brainwashed. He also reported he currently takes Haldol, Depakote, Cogentin, Trazodone for his psychiatric symptoms. The Veteran’s mother Ms. K.F. also testified that when the Veteran went into service “he was smart, he was energetic, he was rational[], he was able to reason…. He just came back altogether different and has been ever since.” Id. She also testified that the Veteran seemed “spaced out all the time, he would talk about stuff that wasn’t reality.” Id. In July 2018, the Veteran underwent a psychological evaluation by Dr. Q. A.-S. See Psychological Evaluation by Dr. Q. A.-S. He noted extensive review of the Veteran’s STRs and private treatment records as well as examination and interview of the Veteran. Id. The Veteran reported he had watch duty during active service which required 24 hours without sleep. He also reported he began hearing voices during one of these watch duty periods. Dr. Q. A.-S. noted that the Veteran did not have any history of psychiatric symptoms or treatment prior to enlisting in the military. He also stated that the Veteran was “admitted to the naval psychiatric hospital after having a psychotic episode and difficulties with performance, mood, and disorganized behavior.” Dr. Q. A.-S. also reported that the Veteran has had outpatient psychiatric care since 1992 to the present day. Id. Concerning the Veteran’s present-day functioning, Dr. Q. A.-S. found that the Veteran had marginal adaptive skills in activities of daily living and in the community. He assessed the Veteran with schizoaffective disorder, bipolar type, rule out intellectual disability, mild versus borderline intellectual functioning, and unspecified trauma disorder. He also opined that the Veteran did not meet the criteria for PTSD although he found the Veteran experienced considerable stress, it did not rise to the level of a criterion A stressor. Id. Regarding the etiology of the Veteran’s psychiatric disability, Dr. Q. A.-S. opined that his “schizoaffective disorder more likely than not began during the course of his military service.” He also opined that the Veteran’s other trauma disorder is related to active service. Id. Analysis At the outset, the Board notes that since the Veteran has been diagnosed as having various psychiatric conditions, accordingly the Board has considered all psychiatric symptoms in reaching the conclusion below. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Based on a thorough review of all of the evidence of record, the Board also finds that the Veteran has a current acquired psychiatric disability to include schizophrenia and bipolar disorder as noted by the Veteran’s private treatment records and the psychological evaluations in the record. He also takes psychotropic medications as noted above. Thus, he meets the first element of service connection, a current disability. Regarding the second element of service connection, an in-service occurrence, the Veteran’s STRs confirm that he was hospitalized for inpatient psychiatric care at a Naval Hospital from May to June 1992. The treatment records indicate the Veteran was assessed for rule/out schizophrenia and alteration of thought process. The Veteran’s discharge report assessed the Veteran with adjustment disorder with mixed emotional features, personality disorder not otherwise specified, and cannabis dependence. See Narrative Summary, STR-Medical. Accordingly, the second element of service connection, an in-service occurrence, is met. The Board also finds that the third element of service connection, nexus, has been met. A July 2018 psychological evaluation by Dr. Q. A.-S. opined that the Veteran’s “schizoaffective disorder more likely than not began during the course of his military service.” See Psychological Evaluation from Dr. Q.A.-S. The Board finds this opinion is based on a comprehensive review of the medical records of the Veteran including consideration of the Veteran’s statements of symptoms he experienced during active service. Additionally, this opinion is based on knowledge of Veteran’s treatment history and is consistent with the evidence of record. Therefore, the Board accords great probative value to the private medical opinion. Additionally, the Board considered the psychological evaluations from two other psychologists as depicted above, who also noted that the Veteran did not have any psychiatric disability prior to active service but was subsequently diagnosed and treated for an acquired psychiatric disability since leaving the Navy. These evaluations also support the opinion of Dr. Q. A.-S. that the Veteran’s current acquired psychiatric disability is related to active service. The Board considered the lay statements in the record including the statements in support of claim submitted in March 2002 as well as the lay statements from the Veteran and his mother during the Board hearing. The Board finds that these lay people are competent to assert the symptoms of which they observed first-hand. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, these statements have been accorded probative weight. Based on the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence supports a grant of service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for an acquired psychiatric disability including schizophrenia and bipolar disorder is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel