Citation Nr: 18153651 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 12-10 853 DATE: November 28, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran suffers from an acquired psychiatric disability that is related to stressors suffered in Vietnam. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Army from November 1969 to August 1971. During this time, he was awarded the Vietnam Service Medal , the Vietnam Campaign Medal, and the National Defense Service Medal. These matters come to the Board of Veterans’ Affairs (Board) on appeal from an November 2009 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO) in Detroit, Michigan. In September 2015 the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans’ Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. Procedurally, the Board notes that the Veteran’s claim was remanded in March 2016 for further development, specifically for the RO to obtain outstanding medical records as well as provide the Veteran with a new VA psychiatric examination. See March 2016 Board Decision. At that time, the Board also expanded the Veteran’s claim from PTSD with depression into an acquired psychiatric disorder. Id. A review of the subsequent evidence of record indicates that the Board’s directives have been accomplished. Accordingly, the Board finds there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires competent evidence showing: (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 - the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). There is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board will assess the competence and credibility of lay statements as well. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an approximate balance of the evidence for and against a claim. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is unique to the VA adjudicatory process, and the nation, in recognition of our debt to our veterans, has taken upon itself the risk of error in awarding such benefits. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this vein, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See, e.g., Struck v. Brown, 9 Vet. App. 145, 152 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). Entitlement to service connection for an acquired psychiatric disability The Veteran maintains that he has a current psychiatric disability that is attributable to stressors incurred during his active duty service in Vietnam. First, as concerning the requisite current diagnosis, the Veteran has submitted medical evidence that reflects various psychiatric diagnoses, including schizophrenia, schizoaffective disorder, PTSD, polysubstance abuse. See, e.g., August 2007 Miami VAMC Mental Hygiene Clinic Consult Response (diagnosing the Veteran with schizophrenia, chronic paranoid type); March 2008 Miami VAMC Social Work E&M Note (diagnosing the Veteran with polysubstance and opiate abuse, schizoaffective disorder, and depressed type PTSD); July 2011 Miami VAMC OSAC Master Treatment Plan Update (diagnosing the Veteran with polysubstance dependence and chronic undifferentiated type schizophrenia). Accordingly, the medical evidence establishes that the Veteran has a current acquired psychiatric disability. See Holton, 557 F.3d at 1366. Second, as concerning an in-service incurrence, the Board notes that the Veteran’s service treatment records are silent for complaints of or treatment for psychiatric symptomatology. Nevertheless, in statements and testimony adduced throughout the pendency of the claim, the Veteran has asserted that he experienced psychologically stressful events during his active duty service in Vietnam. See, e.g., May 2010 VA Initial PTSD Disability Benefits Questionnaire (DBQ) (recording that the Veteran asserted he was a military policeman in Vietnam, and while he was engaged in perimeter guard duty, his unit was exposed to sniper and mortar fire, and that he saw soldiers being wounded); October 2013 Correspondence (reflecting that while in Vietnam, the Veteran was a military policeman who duties included perimeter duties and supervising prisoners of war; and while he was there, he contended with instances of mortar fire); July 2017 VA Initial PTSD DBQ (reporting that the Veteran indicated that he was fired upon with mortars while on perimeter guard duty in Vietnam). In this regard, he is competent under the law to describe what he experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran’s service personnel records, including his DD Form 214 and DA Form 20, confirm that he served in Vietnam from May 1970 to July 1970, for which service he was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Also, his service personnel records reflect that his principal duty was as a Military Policeman (Military Occupational Specialty (MOS) 95B40) with the 545th Military Police Company, 1st Cavalry Division, further supporting his assertions. Thus, in the absence of evidence establishing the Veteran’s account as not credible, reasonable doubt will be resolved in his favor, and the occurrence of the claimed stressful events during his service is established, as it is consistent with the circumstances of his service. See 38 C.F.R. § 3.102. See also 38 U.S.C. § 1154(a) (Due consideration shall be given to the places, types, and circumstances of a Veteran’s service). Accordingly, an in-service injury or incurrence is established. See Holton, 557 F.3d at 1366. Finally, as to the third element, that of a nexus between the Veteran’s current acquired psychiatric disorder and the in-service stressor, the Veteran underwent a new VA psychiatric examination in July 2017. See July 2017 VA Initial Post-Traumatic Stress Disorder DBQ. The examiner opined that the Veteran’s schizophrenia was as least as likely as not incurred in or caused by his claimed in-service injury, event, or illness. Id. In arriving at this conclusion, the examiner observed that the Veteran was psychologically fit at the time of his enlistment and that his symptoms appeared to manifest while he was deployed to Vietnam and increased in severity after his return. Id. The examiner determined that while the Veteran did not currently meet the diagnosed criteria for PTSD, he did present with mild subthreshold symptoms of PTSD, which warranted a diagnosis of Other Specified Trauma- and Stressor-Related Disorder. Id. She then opined that “[g]iven the chronicity, progressiveness, and overlap of symptoms between [s]chizophrenia and subthreshold PTSD, it is not possible to separate the individual effects of each disorder.” Id. While the examiner acknowledged that there was no documentation of the Veteran’s first psychiatric hospitalization in the 1970’s, she noted the record reflected that not only has the Veteran repeatedly asserted that he was hospitalized in the 1970’s, but also that his brother also asserted that the Veteran had been hospitalized shortly after his military discharge. Id. She further went on to state, “It is the opinion of this clinician that the stress of Vietnam, including his exposure to and fear of enemy fire, could have (i.e. probability of 50 percent or more) triggered the Veteran’s psychosis and led to his diagnosed schizophrenia.” Id. The Board finds the July 2017 VA psychiatric examination and opinion to be highly probative, as it represents the informed conclusion of a medical professional supported by a thorough explanation and based on a review of the Veteran’s medical history, the clinical findings made on examination, and the symptomatology reflected in the medical and lay evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians’ access to a Veteran’s medical records). As such, the July 2017 VA psychiatric examination and opinion carry significant probative weight in the Board’s determination. See Caluza, 7 Vet. App. at 506 (1995). Accordingly, given the medical evidence diagnosing a current psychiatric disability, considering the Veteran’s credible reports of experiencing stressful events during his active service, and in light of the probative medical evidence of a nexus between the Veteran’s current psychiatric symptomatology and the claimed in-service stressors, the Board finds that the evidence is at least in equipoise as to whether his current acquired psychiatric disability is related to his active service. See 38 C.F.R. §§ 3.303(a); Holton, 557 F.3d at 1366; Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for and acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel