Citation Nr: 18151926 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 13-31 345A DATE: November 20, 2018 ORDER Service connection for a psychiatric disorder, including paranoid schizophrenia, is denied. FINDING OF FACT The Veteran’s psychiatric disorder, diagnosed as paranoid schizophrenia, did not have its onset during or within a year after separation from service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, including paranoid schizophrenia, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to April 1975. The case is on appeal from a September 2011 rating decision. In February 2016, the Veteran testified at a Board hearing. In a June 2016 decision, the Board reopened a previously denied claim of service connection for a psychiatric disorder. At that time, the Board also remanded the claim for additional development. After a supplemental statement of the case (SSOC) was thereafter issued in August 2016, the Veteran submitted another VA Form 9 in September 2016. This was not a necessary submission as the issue was already on appeal. The VA Form 9 did include another request for a Board hearing. As the Board has already afforded the Veteran a hearing and there is no change in circumstances indicating that an additional hearing may be necessary. 38 C.F.R. § 20.700(b) (noting that the purpose of a hearing is to “receive argument and testimony relevant and material to the appellate issue,” but that a “hearing will not normally be scheduled solely for the purposes of receiving argument by a representative”); see also Cook v. Wilkie, 2018 U.S. App. LEXIS 32073 (Fed. Cir. Nov. 13, 2018) (noting that a claimant is entitled to another Board hearing after remand from the United States Court of Appeals for Veterans Claims (the Court)). Unlike in Cook, the Veteran has not indicated specific issues on which testimony should be presented and his claim is not returning from the Court. Therefore, the Veteran is not entitled to a second Board hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a psychiatric disorder, including paranoid schizophrenia. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) 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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, service connection may be established for certain chronic diseases, such as psychoses, manifested to a compensable degree within a presumptive period following separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.   Contentions The Veteran is claiming that his paranoid schizophrenia is related to service. Specifically, he notes that hallucinations onset during basic training after being near a grenade that went off. Further, he has stated that he was first hospitalized in the summer of 1976 or 1977. He notes that the service treatment records (STRs) are sparse, which he believes indicates that VA destroyed or withheld evidence. He also notes that the expert medical opinion request by the Board in January 2018 is not in his electronic claims file, which he claims is an indication that no such opinion was requested. See July 2018 Representative’s Brief. Duty to Assist and Treatment History To address the Veteran’s contentions, the Board will review briefly the steps taken to gather evidence related to his claim. A February 1981 VA treatment record notes manic depression. The September 1982 rating decision denying his prior claim noted his November 1976 mental health treatment. In September 1982 correspondence, the Veteran indicated prior treatment for his a psychiatric disorder at a VA facility. There were no dates indicated. VA received this correspondence one week after denying his claim. In February 1984, VA conducted a search for these medical records, but was unable to located them. As indicated in the June 2016 Board decision that granted his claim to reopen, the September 1982 rating decision denying the Veteran’s claim was final as, in that September 1982 correspondence, the Veteran did not note disagreement with the decision. The RO’s action in February 1984 was sufficient to address the possibility of the existence of VA treatment records, including on the basis of 38 C.F.R. § 3.156(b). See also Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). In relation to the current claim, the Veteran reported VA mental health in-patient treatment in the summer of 1976. A search revealed that the Veteran was treated in 1977. However, such records were unavailable. These records were found to be unavailable in the September 2011 rating decision and November 2013 statement of the case denying the Veteran’s claim. Given the steps VA has already undertaken, further efforts to locate these records would be futile. 38 C.F.R. § 3.159(d). In other words, these records were not withheld or destroyed for any reason related to the Veteran’s claim, but are simply unavailable to the extent they exist or existed. Further, it is clear that, in 1984, only 17 months after receiving notice of treatment, VA conducted a search, albeit an unsuccessful one, for record of prior VA mental health treatment. The Veteran’s representative has also noted the sparseness of the STRs of record. In November 2010, the RO requested all available STRs. The request was fulfilled in December 2010 and it was noted that at least some STRs were mailed in 1982. There are several STR entries in the record of which are examination reports and other medical records from the Veteran’s time in service. The Board finds that the duty to assist has been met with respect to obtaining STRs. So too Social Security Administration (SSA) records were requested in March 2014, but SSA responded that associated medical records had been destroyed. Given the steps VA has already undertaken, further efforts to locate these records would be futile. 38 C.F.R. § 3.159(d). In view of the state of the record, the Board has directed that VA medical professionals to be attentive to the specific and reports of the Veteran regarding treatment and the onset of symptoms. In remanding the claim for a medical opinion in June 2016 and requesting an opinion from the Veterans Health Administration (VHA) in January 2018, the Board noted the Veteran’s reports regarding his first experiencing auditory hallucinations during service and first psychiatric treatment in 1977. Furthermore, the VHA opinion request and opinion production actually took place. The fact that there is a March 2018 VHA opinion that references the request shows this. Additionally, the sole medical question is restated by the psychiatrist. The Veteran’s history is set forth as well as the relevant medical evidence for forming the opinion. Thus, while the request was not included in the record, the Board does not find the Veteran is prejudiced by this as the March 2018 opinion itself is the important part of the process. Medical Opinions of Record It is undisputed that the Veteran has a current diagnosis of paranoid schizophrenia. The question that the Board must resolve is whether his current paranoid schizophrenia is related to in-service symptoms that he recalls that he experienced. The Veteran was afforded a VA examination in July 2016 pursuant to the Board’s June 2016 remand. The examiner (a licensed psychologist) noted that there was evidence of a psychotic break during the fall of 1971, at which time the Veteran reports first experiencing auditory hallucinations. However, the examiner concluded that it was unlikely that the Veteran’s current paranoid schizophrenia had its onset during service or manifested within 12 months after separation from service. In support, the examiner, referencing the Veteran’s 1970s VA mental health treatment, noted the lack of medical documentation until approximately 19 months after discharge. This medical opinion weighs against the claim. However, to ensure further consideration of the Veteran’s reports regarding onset of symptoms that are not expressly documented by contemporaneous records, the Board requested a VHA expert medical opinion in January 2018. The VHA opinion was authored in May 2018 by a VA psychiatrist. The examiner noted the limited record available for review and concluded that he could not say that it is at least as likely as not that the Veteran’s paranoid schizophrenia is at least as likely as not related to service, or that a psychosis manifested within a year of service. In reaching this conclusion, the psychiatrist noted the Veteran’s description of his in-service symptoms. The examiner noted the diagnostic guidelines in the Diagnostic Statistics Manual-5 (DMS-5) for paranoid schizophrenia. He stated that experiencing auditory hallucinations alone does not constitute a diagnosis of schizophrenia, and can be indicative of other mental health conditions such as depression, bipolar disorder, or substance-induced psychosis. The Veteran has not reported any other symptoms, though the examiner stated it was possible, but uncertain, that the Veteran was also experiencing delusions. The examiner also noted that the Veteran functioned well despite hearing voices while in service, suggesting no disturbance in functioning. With regard to post-service onset, the examiner noted that the Veteran went to three semesters of college before seeking treatment. Again, the Veteran’s history of going to school and planning on continuing to take classes up to the fall semester of 1976, did not demonstrate functional impairment necessary for a diagnosis. Thus, it was less likely than not that the onset of symptoms within a year after separation from service. The Veteran’s representative asserts that the psychiatrist’s opinion unpersuasive for several reasons. First, as noted above, the representative argues that the medical opinion lacks a factual basis because relevant documents were withheld or destroyed. In support, the representative notes that most schizophrenics develop symptoms by their mid-20s. Second, the representative argues that there was no discussion of differing diagnoses from the 1970s onward, nor of the criteria for diagnosis in DSM-II, the DSM authoritative during the 1970s. Third, the representative points out that STRs do not reveal that the Veteran was in a sound condition upon discharge or that he was not suffering from a mental problem. Significantly, the representative notes that the Veteran tried to conceal his symptoms, perhaps for fear of the associated stigma. The Board finds the March 2018 VHA psychiatrist’s opinion persuasive. As to the factual basis, the Board has found that further efforts to obtain the unavailable 1976 and 1977 VA treatment records would be futile and that all available STRs were requested and obtained. Thus, the Board concludes that the factual record, however sparse, is complete. Nonetheless, in reaching a conclusion, the psychiatrist, as directed, considered and discussed the Veteran’s history beginning in the 1970s as reported through lay statements. The Veteran’s individual symptom and treatment history is more relevant, and thus more persuasive, to his claim than the general age at which schizophrenia symptoms usually or tend to onset in most individuals. Third, the examiner’s opinion discussed at length the DSM-5 criteria for paranoid schizophrenia because the DSM-5 paranoid schizophrenia is the relevant current diagnosis. Other diagnoses the psychiatrist which can also manifesting in hallucinations, such as depression and bipolar disorder, are not currently present. Further, with regard to a diagnosis, because the Veteran’s claim was certified to the Board after August 4, 2014, DSM-5 is the relevant DSM, 38 C.F.R. § 4.125, and the regulation itself constitutes notice that the Board would rely on DSM-5 diagnostic criteria in reaching a decision on the claim. Finally, the Veteran testified at the February 2016 Board hearing that he did not tell his parents about his symptoms. However, there is no indication that the Veteran felt prevented from seeking mental health treatment from stigma. In fact, the Veteran stated that he sought treatment in late 1976 because he “couldn’t take anymore.” Hearing Transcript at 7. Thus, the Board does not find that the Veteran would have concealed his symptoms from a medical clinician, upon separation or otherwise, if they interfered with daily functioning. Thus, such symptoms would be noted on his separation examination. This is not a medical determination but rather a conclusion of what a reasonable person would report based on the history of what else was reported. From the above discussion, it is clear that the psychiatrist considered the Veteran’s lay reports regarding the onset of symptoms and treatment history with reference to the relevant medical principles in reaching a conclusion regarding the etiology of the Veteran’s paranoid schizophrenia. Therefore, the Board finds the psychiatrist’s opinion persuasive. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While there is as possibility of earlier onset, this would be speculative as the psychiatrist pointed out. Service connection cannot be granted based on speculation. (Continued on the next page)   Therefore, the Board finds it is less likely than not that the Veteran’s paranoid schizophrenia had onset during or within a year after separation from service, or that it is otherwise related to service. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore, service connection for a psychiatric disorder, including paranoid schizophrenia, is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George