Citation Nr: 1817217 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-04 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, undifferentiated type. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his sister ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Veteran and his sister testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2013, the Board remanded the case for additional development and it now returns for further appellate review. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, his currently diagnosed schizophrenia had its onset during service, or within a year of service. CONCLUSION OF LAW The criteria for service connection for schizophrenia have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384 (2017) REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for schizophrenia constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses such as schizophrenia, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309, 3.384. 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). However, 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) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See 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). The Veteran contends that his acquired psychiatric disorder, diagnosed as schizophrenia, began during service. At his August 2012 Board hearing, he and his sister testified as to his symptoms immediately following service, and his sister testified that she noticed a change in his behavior compared to before service. In addition, numerous lay statements from the Veteran's family members, to specifically include an August 2007 letter authored by his sister, detailing his behavior during and since service all contain first-hand accounts of his symptoms after service and notice a change in behavior. The Veteran and his family contend that letters written by the Veteran during service also demonstrate the onset of his psychiatric symptoms. Initially, the Board notes that VA treatment records and a July 2017 VA examination report show that the Veteran has a current diagnosis of schizophrenia. Further, while his service treatment records (STRs) are silent for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder, as above, the Veteran has provided numerous statements in support of his contention that the schizophrenia began in service. One such statement the Veteran submitted is a November 2008 letter from his treating mental health provider. The provider noted the Veteran's schizophrenia diagnosis from 1998. The provider explained that such disorder usually manifests itself in the early twenties for men, although the onset of symptoms may occur in the late teens, especially under conditions of increased stress. He noted that it was unclear whether it was just general stress of the military or a singular event that cause a schizophrenic break in the Veteran, but his statement inherently opined that a schizophrenic break occurred while the Veteran was in Germany. He based his opinion on the fact that the Veteran was on active service during the period when schizophrenia usually manifests itself and he came back from service a totally different man. The provider indicated that the symptoms his family described upon the Veteran's return from service (being withdrawn, no longer having or seeking friends, never learning to drive, never getting a job, rarely venturing outside his home, and, when he does so, it is under duress, and retreating into his room when under stress), were signs of schizophrenia. Finally, the provider noted the Veteran's agoraphobia likely contributed to the long delay between the actual onset of symptoms and his diagnosis. In light of the above letter and other statements of record, the Board remanded the claim in November 2013 to afford the Veteran a VA examination so as to determine the current nature and etiology of his acquired psychiatric disorder. Pursuant to the remand, the Veteran underwent an examination in December 2016. The examiner reviewed the record, which included the lay statements of record and the November 2008 letter, and conducted an interview of the Veteran. Ultimately, the examiner opined that the Veteran's schizophrenia was less likely than not incurred in or caused by his service. In so finding, the examiner noted the Veteran's medical examination on leaving service was unremarkable, and there was no evidence to show his disorder was caused by his military service. He further noted that schizophrenia is not "caused" by an event, but it is more of a congenital condition. However, the examiner stated that the Veteran's disorder had its natural onset at the exact time that he served in the military, a conclusion for which the examiner did not provide any rationale. In order to clarify the December 2016 examiner's opinion, the AOJ returned the file to him for an addendum opinion to provide a rationale as to why he believed the Veteran's disorder had its onset in-service. In July 2017, the examiner provided an addendum opinion, in which he stated it was at least as likely as not that the Veteran's disorder was incurred in or caused by his service. He supported his opinion based on the fact that schizophrenia normally manifests between eighteen and twenty-two, the ages when the Veteran was in service. The examiner found no evidence to show a link between the current disorder and service, but an August 2007 letter from the Veteran's sister shows that he had at least entered its prodromal (initial mild) stage by the time he left service. The examiner concluded that this evidence supports a finding that the disorder first manifested during service. The December 2016/July 2017 VA examiner considered all the relevant evidence of record, including specific references to the Veteran's statements, the statements his family submitted regarding his symptoms, and the November 2008 letter from his mental health provider. Consequently, the Board finds the opinion, considering its detailed rationale and well-reasoned conclusions, highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, the lay statements that describe the Veteran's change in behavior immediately upon returning from service provide a helpful insight into the onset of the Veteran's symptoms. In this regard, he and his family members are all competent report the onset and severity of symptoms they witness first hand. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, the Board finds such statements credible as the Board finds no reason to doubt their veracity. As such, they are also highly probative Therefore, the evidence of record indicates that, when the Veteran returned from service, his behavior had dramatically changed. Further, all of the medical opinions on file agree that the usual onset of the Veteran's disorder is at the age when the Veteran was in service. Finally, the most probative medical evidence, the December 2016/July 2017 VA examiner's opinions, conclude that the Veteran's disability had its onset during service, or within a year of service. While the December 2016 opinion concluded that the disability was less likely than not related to service, it is clear from the rationale in that opinion and the July 2017 addendum that, in making that conclusion, the examiner was focused on whether any aspect of the Veteran's service caused his disability. In each opinion, the examiner maintained that he believed the disability had its onset during service, or at least within one year of service. This is further supported by the fact that the examiner changed his conclusion in the addendum to more accurately reflect his opinion. Therefore, the Board resolves all doubt in the Veteran's favor and finds that his currently diagnosed schizophrenia had its onset during service. Accordingly, service connection for such disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for schizophrenia is granted. REMAND By virtue of this decision, service connection has been established for schizophrenia. The Veteran has no other service-connected disabilities. While the Veteran's disability has a current pension rating, such a rating is separate and distinct from a compensation claim. Accordingly, the Veteran's newly service-connected schizophrenia must be assigned a disability rating by the AOJ. Therefore, the TDIU claim is "inextricably intertwined" with such matter. Claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one of the claims cannot be rendered until a decision on the other. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, consideration of the Veteran's TDIU claim is deferred pending the implementation of the award of service connection for schizophrenia with the assignment of a disability rating. Accordingly, the case is REMANDED for the following action: After implementing the award of service connection for schizophrenia with the assignment of a disability rating, and conducting any other indicated development, the Veteran's claim for TDIU should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs