Citation Nr: 1806709 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 09-28 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Larry Knopf, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and December 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony at a Board hearing before a Veterans Law Judge (VLJ) in October 2015. A transcript of that hearing is of record. By law the VLJ who conducted a hearing on an appeal must participate in any decisions made on that appeal. See 38 U.S.C. § 7107(c) (2012; 38 C.F.R. § 20.707 (2017). In December 2015, the Board sent a letter to the Veteran, which explained that the VLJ who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different VLJ. Otherwise, the case would be reassigned. In January 2016, the Veteran responded that he did not want another Board hearing. Thereafter, in April 2016, the Board denied a claim for entitlement to nonservice-connected pension benefits. Additionally, it denied the issues of receipt of new and material evidence to reopen claims for service connection for left knee and low back disabilities. It also granted the issue of receipt of new and material evidence to reopen a claim for entitlement to service connection for an acquired psychiatric disorder. The Board then remanded the issues of entitlement to service connection for an acquired psychiatric disorder, entitlement to service connection for a right knee disability, and entitlement to a TDIU for further development. Subsequently, in April 2017, the Veteran, through his representative, requested another Board hearing. However, in June 2017, the Veteran withdrew this request. The matter has now returned to the Board for appellate review. A March 2017 VA treatment record contained a problem list for the Veteran which included lack of housing. In April 2017, the Veteran reported that he was homeless and was suffering from financial difficulties. The Board has interpreted these reports as a motion to advance the case on the docket and the Board will grant the motion. Accordingly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issues of entitlement to service connection for a right knee disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VETERAN'S CONTENTIONS The Veteran asserts that he has an acquired psychiatric disorder that was caused by or first became manifest in service. Specifically, the Veteran has stated that as a result of an undiagnosed psychiatric disorder, he had many difficulties in service and was discharged for failing to maintain acceptable standards. Additionally, he stated that although he was never sent to a mental health institution while still on active duty, immediately following service he sought mental health treatment and was diagnosed with a psychiatric disorder. FINDINGS OF FACT 1. An acquired psychiatric disorder, including a personality disorder, was not noted at any time prior to the Veteran's entry into service. 2. Several service treatment records (STRs) from 1978 and 1979 noted that the Veteran underwent counseling while in service. Specifically, beginning in approximately February 1978, a counselor noted that the Veteran was apathetic and demonstrated a lack of trying. Next, in October 1978, a counselor noted that the Veteran had issues which were jeopardizing his chances for promotion and retention. The Veteran stated that he did not know his own military occupational specialty (MOS) and that he was pursuing a breach of contract case against the United States Army. In December 1978, a counselor noted that the Veteran had failed to be promoted due to a failure to perform in the prescribed manner. A month later in January 1979, a counselor noted that the Veteran seemed to have a negative attitude and continued to make remarks indicating that he was unhappy with his current MOS. Later that month, the Veteran was absent from formation, claiming to be sick. The Veteran explained that he had gone to sick call but nothing was done for him. As a result, he said he was tired of being in the military and did not care anymore. After a mental status evaluation in February 1979, a clinician stated that the Veteran did not have a significant mental illness. However, the clinician noted that the Veteran displayed an obvious lack of response to the authority implicit in the military system. In March 1979, the Veteran was discharged for failing to meet acceptable standards for continued military service. In his separation examination, the clinician noted that the Veteran had "nervousness at times" and marked an abnormality under the psychiatric category. 3. In June 1979, approximately 2 months after discharge, the Veteran underwent a VA neuropsychiatric examination. The Veteran stated that he was unable to work and was dependent upon his wife. He described his current symptoms as getting easily upset. While evaluating the Veteran, the examiner noted that there was almost a complete lack of responsiveness in the Veteran's face, speech, and gestures. The examiner then diagnosed the Veteran with situational stress reaction of adult life; adjustment reaction with adult life; and mixed psychoneurosis, with anxiety and depression. 4. Thereafter, in March 1982, the Veteran was admitted to the Spring Grove Hospital Center and diagnosed with chronic paranoid schizophrenia with acute exacerbation. The Veteran was referred to Spring Grove after he entered another medical facility and threatened to shoot the staff and himself. 5. An October 1982 treatment record from the Southern Community Mental Health Center noted that the Veteran had been an out-patient on a regular basis since September 1981. At that time, the Veteran complained of auditory hallucinations and disturbed sleep patterns. Additionally, the Veteran exhibited depressive features, chronic depression with accompanying paranoid features, and a generalized mistrust of others. The Veteran had failed at forming interpersonal relationships of an enduring nature, had a dulled and flat affect, had a faulty contact with reality, and had constricted personal interests. The Veteran was diagnosed with schizoaffective disorder. 6. In November 1983, the Veteran was admitted to Leland Memorial Hospital and provided with a diagnosis of schizophrenic disorder, mixed type. 7. Subsequently, in January 1984, the Veteran was afforded a VA psychiatric examination. After evaluating the Veteran, the examiner stated that the diagnosis of schizophrenia could not be verified. Rather, the examiner provided a diagnosis of mixed personality disorder with passive-aggressive and borderline features. 8. In an August 1988 report of psychological evaluation for the Social Security Administration, Dr. Crist diagnosed the Veteran with posttraumatic stress disorder from a post-service work accident as well as paranoid personality disorder. 9. In August 1991, the Veteran was hospitalized again at Hill Crest Hospital for mental health concerns. A discharge summary completed by Dr. Hall provided final diagnoses of paranoid schizophrenia and alcohol abuse. The Veteran underwent hospitalization again at Hill Crest Hospital in March 1992. Chronic paranoid schizophrenia again was provided as a final diagnosis on the Veteran's discharge summary. 10. An August 2001 VA treatment record assessed the Veteran with: (1) major depression with psychotic features; (2) schizoaffective disorder; and (3) polysubstance abuse is remission. The Veteran's active problem list also included Cluster B personality traits. The diagnosis of schizoaffective disorder and Cluster B personality traits was again noted in September 2010 and October 2010 VA treatment records. 11. In August 2014, Dr. Shroyer from the Southwest Medical Group stated that the Veteran was a long-standing patient of his who had a known diagnosis of paranoid schizophrenia. Dr. Shroyer opined that it was at least as likely as not that the Veteran's schizophrenia began in service as the Veteran had no previous history of any mental disorders. 12. In December 2016, the Veteran underwent a VA mental disorders examination. After evaluating the Veteran, the examiner provided the diagnoses of schizoaffective disorder, unspecified personality disorder with prominent Cluster A features, and a history of polysubstance use disorder. The examiner then opined that it was less likely than not that the Veteran's schizoaffective disorder had its clinical onset in service or within the first year post service, or was otherwise related to military service. In her opinion, the examiner noted that some symptoms consistent with schizoaffective disorder may have been present prior to September 1981, but stated that these symptoms were neither prominent nor at a threshold level sufficient to warrant a diagnosis of schizoaffective disorder. The examiner then provided an opinion regarding the Veteran's diagnosed unspecified personality disorder. The examiner stated that there was evidence that an independent personality disorder preexisted service and that this would likely account for the difficulties documented in the Veteran's service treatment and personnel records. 13. Following the December 2016 VA examination, in September 2017, the Board requested that a psychiatrist from the Veteran's Health Administration (VHA) review the Veteran's file and provide an additional medical opinion regarding the Veteran's acquired psychiatric disorder claim. In November 2017, Dr. Johnson, a psychologist from the Cheyenne, Wyoming VA Medical Center, replied and stated that he had reviewed the Veteran's claims file and spoke with the Veteran over the phone. Dr. Johnson first indicated that he gave Dr. Shroyer's August 2014 opinion little weight as he had no way of knowing what evidence Dr. Shroyer used to form the opinion. Dr. Johnson then stated that, in his opinion, the Veteran's only current diagnosis was schizoaffective disorder and that the Veteran did not meet the criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) for any other psychiatric diagnosis. Dr. Johnson then stated that he had reviewed the December 2016 VA mental disorders examination report and found that the Veteran's behaviors did not constitute or meet the criteria for a separate personality disorder. Rather, Dr. Johnson explained that most of the Veteran's behaviors were best explained by the single diagnosis of schizoaffective disorder. Dr. Johnson elaborated that he did not believe that the Veteran currently had a personality disorder-or that he had one prior to or during service. In support of this conclusion, Dr. Johnson stated that the Veteran was not diagnosed with a personality disorder prior to service, during service, or immediately after service as indicated in the June 1979 VA examination. Moving beyond the lack of a personality disorder, Dr. Johnson then referred again to the June 1979 VA examination and stated that within that examination itself, the examiner noted that the Veteran had an almost complete lack of emotional responsiveness in his face, speech, and gestures. Dr. Johnson found this to be extremely unusual and significant as a major criterion for schizoaffective disorder or schizophrenia is the presence of negative symptoms which are characterized by diminished emotional expression. Dr. Johnson concluded that although it was not possible based on the evidence to say when the Veteran's negative symptoms first started, based on the June 1979 VA examination report, it was his opinion that the Veteran's psychotic disorder of schizoaffective disorder manifested shortly after service-if not in service. 14. The evidence of record is in equipoise as to whether the Veteran currently suffers from schizoaffective disorder and whether it first became manifest during or immediately after service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection is warranted for a disease first 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Additionally, schizoaffective disorder may be classified as a "chronic disease" eligible for presumptive service connection under 38 C.F.R. § 3.309(a). The Board may consider presumptive service connection for "chronic diseases" on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran's separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As indicated above, the Board finds the evidence is evenly-balanced as to whether the Veteran's currently suffers from schizoaffective disorder that manifested in service or immediately after service. Affording the Veteran the benefit of the doubt, the Board will grant the claim. In support of this determination, the Board primarily relies upon the November 2017 opinion of VHA professional Dr. Johnson, who found that (1) the Veteran did not suffer from a preexisting personality disorder-which is not service-connectable; and (2) the Veteran's schizoaffective disorder manifested at least as early as June 1979, about 2 months after discharge, and possibly while the Veteran was still on active duty. The Board finds Dr. Johnson's opinion to be adequate for adjudicative purposes as it: (1) was based upon a consideration of the Veteran's entire medical history; (2) described the Veteran's disability in sufficient detail; and (3) supported its conclusions with a thorough analysis. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges that the December 2016 VA examiner also provided an adequate medical opinion in determining that the Veteran suffered from a personality disorder and that the Veteran's schizoaffective disorder was not related to service. As such, the claims file contains one competent positive medical opinion of record and one competent negative opinion of record. Affording the Veteran the benefit of the doubt, the Board finds that service connection for schizoaffective disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER Service connection for schizoaffective disorder is granted. REMAND Although the Board regrets the additional delay, further development is required prior to adjudication of the Veteran's claims for service connection for a right knee disability and entitlement to a TDIU. Regarding the Veteran's right knee claim, the Veteran was afforded a VA examination in December 2016. The examiner diagnosed the Veteran with degenerative joint disease of the right knee. The examiner then opined that the Veteran's degenerative joint disease was less likely than not incurred in or caused by service. In support of this conclusion, the examiner stated that a June 1979 VA examination after service did not indicate any right knee symptoms. Additionally, the examiner stated the degenerative joint disease was related to wear and tear over the last nearly 40 years since military service. Unfortunately, the Board finds the December 206 VA examiner's opinion inadequate for adjudicative purposes. Specifically, the examiner did not address the Veteran's lay contention, as reported during the October 2015 Board hearing, that he had pain in his right knee in service and that this pain has continued to the present. See Hearing Tr. at 20-21. Accordingly, the Board must remand this matter so that an additional medical opinion may be obtained. Relatedly, in light of the above, the Board will also remand the Veteran's pending TDIU claim as the merits of that claim are dependent upon the initial rating assigned for schizoaffective disorder as well as the outcome of the Veteran's right knee service connection claim. Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Lastly, given the need to remand the foregoing issues, updated VA treatment records should also be obtained. In particular, the RO should attempt to obtain any VA treatment records dates since March 2017. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records and associate them with the claims file-particularly those dated since March 2017. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After the above have been completed to the extent possible, send the claims file to an appropriate VA clinician for the issuance of a medical opinion as to the nature and etiology of the Veteran's right knee degenerative joint disease. After thoroughly reviewing the claims claim, the clinician should then state whether it is at least as likely as not (50 probability or more) that the Veteran's right knee degenerative joint disease was caused by or related to service In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim, including the Veteran's testimony at an October 2015 Board hearing that (1) he has suffered from continuous knee pain in service, and (2) his current right knee condition could be attributable to the running he was required to do in service. For the opinion requested, a complete rationale must be provided. If the clinician cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 that are 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). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs