Citation Nr: 18116643 Decision Date: 07/06/18 Archive Date: 07/06/18 DOCKET NO. 11-29 476 DATE: July 6, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, other than PTSD to include schizoaffective disorder, is denied. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.29 based on hospital treatment in excess of 21 days for psychiatric disorder is denied. Entitlement to a temporary total evaluation under 38 C.F.R. § 4.30 based on convalescence for a psychiatric disorder is denied. FINDINGS OF FACT 1. An acquired psychiatric disorder, other than PTSD, to include schizoaffective disorder, existed prior to the Veteran’s active duty service. 2. The evidence of record does not show that the Veteran’s acquired psychiatric disorder, other than PTSD, to include schizoaffective disorder, increased in severity during service. 3. The evidence of record does not reflect that the Veteran was hospitalized for 21 days or more, and/or received treatment requiring convalescence due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, other than PTSD to include schizoaffective disorder, have not been met. 38 U.S.C. §§ 1131, 1132, 1153 (2012); 38 C.F.R. § 3.306 (2017). 2. The criteria for a temporary total rating based on hospitalization for treatment of a service-connected disability have not been met. 38 C.F.R. § 4.29 (2017). 3. The criteria for a temporary total rating based on convalescence for treatment of a service-connected disability have not been met. 38 C.F.R. § 4.30 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1976 to July 1978. This matter was previously before the Board in December 2015 and in June 2017, and was remanded on each occasion. In June 2017 the matter was remanded to afford the Veteran a videoconference hearing. In October 2017 written correspondence, the Veteran withdrew his request for a Board hearing. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(e) (2017). The matter was remanded in December 2015 to afford the Veteran a VA psychiatric examination which was accomplished in December 2016. Review of the record shows substantial compliance with the prior remand; thus additional development is not necessary. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD) was granted in a January 2017 rating decision. Thus this claim is no longer on appeal and the board does not have jurisdiction at this time. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include schizoaffective disorder. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be “competent”. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran’s service treatment records (STRs) show that, in October 1976, he was interviewed concerning adult adjustment reaction; the Veteran was observed to be moderately anxious, yet denied any psychiatric difficulties. In March 1978, he was hospitalized for emotional problems and was released. An STR dated May 1978, indicates the Veteran admitted himself for treatment because he was fearful he would harm himself or someone else. Notably, there is no record of any psychiatric disorder on the Veteran’s July 1978 separation examination. The Veteran’s VA treatment records reflect consistent treatment for schizoaffective disorder beginning in April 2008, although his records indicate he had been diagnosed with schizophrenic episodes in approximately 1981. The records show that the Veteran continues to be treated for schizoaffective disorder and has been hospitalized at different times due to this disorder. In its December 2015 decision, the Board determined that the Veteran “clearly and unmistakably had a psychiatric disability that preexisted service.” The Board remanded the issue for a VA psychiatric examination and opinion as to whether or not any of the Veteran’s preexisting psychiatric disorders increased in severity during service; and if so, whether such increase in severity represented the natural progression of the condition, or was beyond the natural progress of the condition (representing a permanent worsening of the disorder). VA treatment records dated October and November 2016 indicate that the Veteran revealed he was the victim of a sexual assault in 1978 while he was stationed in Germany. The Veteran reported that he did not divulge his military sexual trauma (MST) in the past due to fear of being perceived as a homosexual, as well as his fear of being discriminated against by other soldiers. The Veteran was afforded a VA PTSD examination in December 2016. The examiner diagnosed the Veteran with PTSD/MST and schizoaffective disorder. The examiner was able to differentiate the PTSD symptoms which include “intrusive thoughts of traumatic events, flashbacks, anxiety, poor sleep with nightmares, avoidance behaviors, hypervigilance and jumpiness” from symptoms related to his schizoaffective disorder. The examiner stated the “episodic major depressive symptoms concurrent with delusions and auditory hallucinations and periods of depressive symptoms, with full remission of psychotic symptoms” were attributable to schizoaffective disorder. However, the examiner did note that Veteran’s symptoms of “depressed mood, anxiety, poor sleep, isolation, decreased attention and concentration, fatigue and low energy level” may be caused by both disorders. The examiner noted that the Veteran’s service treatment records (STRs) indicated he had a 3 day hospitalization prior to service and was admitted to a psychiatric ward in service at which time he was diagnosed with a “passive aggressive personality.” The examiner noted that the Veteran began psychiatric treatment in 1980, with admissions to VA hospitals in Chicago, Milwaukee and Miami. The examiner observed that the Veteran had more recent periodic psychiatric hospitalizations between 2011 and 2013 due to his continued diagnosis of schizoaffective disorder. The examiner stated that the Veteran’s STRs indicated he had a mental condition that “began prior to service and persisted to present – Schizoaffective Disorder.” The examiner stated that the Veteran’s service treatment records indicated an “exacerbation of mental health problems that could consider as a marker for the alleged sexual assault, that the Veteran states, occurred prior to his psychiatric admission in Frankfort, Germany.” The examiner noted that the Veteran did not share his military sexual trauma (MST) in the past due to fear of being perceived as homosexual and fear of discrimination by other soldiers. The examiner further noted that there is documented evidence in the VA records indicating that several mental health providers diagnosed the Veteran with “PTSD – MST” and other providers with “R/O PTSD.” Based upon her examination of the Veteran and thorough review of his medical records, the examiner determined that “there is no evidence that the condition increased in severity during service, since the documented symptoms were vague and nonspecific, and seemed the prodromal symptoms of current Schizoaffective Disorder.” In January 2017, based on the findings of the December 2016 VA PTSD examination, the Veteran was granted service connection for PTSD due to the MST he experienced in service, and assigned a 70 percent disability rating for this disorder. The Veteran’s file contains a June 2017 letter from his VA psychiatrist who treated him for over three years. The VA psychiatrist noted that the Veteran had been treated for schizoaffective disorder for the past 20 years. The VA psychiatrist stated that the Veteran was the victim of a MST in service which exacerbated his schizoaffective disorder. After a thorough review of the Veteran’s file, the Board finds that the Veteran is not entitled to service connection for an acquired psychiatric disorder, other than PTSD, to include schizoaffective disorder. The Board notes that the December 2016 VA examiner was able to distinguish the Veteran’s PTSD symptoms from his preexisting psychiatric symptoms – schizoaffective disorder – and determined that the symptoms the Veteran exhibited in service were not manifestations of an increase in the severity of his schizoaffective disorder. The examiner’s opinion is based upon a review of the Veteran’s STRs, post service treatment records, and an examination of the Veteran. Indeed, a review of the Veteran’s STRs shows that, while he was treated on several occasions in service for symptoms including anxiety and depression, these episodes resolved and he was found fit for duty. The Veteran’s separation examination listed his psychiatric examination as normal. The Board acknowledges the letter from the Veteran’s VA psychiatrist who stated that it was his opinion that the Veteran’s schizoaffective disorder was exacerbated by the MST he experienced in service. However, the Board notes that this opinion did not address the Veteran’s diagnosis of PTSD due to a MST, nor did it cite to the findings of the December 2016 VA PTSD examination. As such, the Board concludes that relevant medical evidence was not considered in rendering this opinion and therefore attaches less probative weight to it. The Board finds the December 2016 opinion that the Veteran’s MST is the underlying cause of his service-connected PTSD and that his schizoaffective disorder was not aggravated by his military service to be the most probative opinion. This opinion was based on an examination of the Veteran and a full review and consideration of the Veteran’s service and post service records, and was well supported by a thorough rationale. The examiner discussed the Veteran’s diagnoses of PTSD and schizoaffective disorder and the symptoms and problems associated with each diagnosis. When the evidence is read as a whole, and recognizing the Veteran’s recent diagnosis of PTSD based upon a MST, the Board finds the negative medical opinion regarding aggravation of schizoaffective disorder is supported by adequate rationale. Thus, the Board accepts this opinion as highly probative evidence on the question of whether the Veteran’s schizoaffective disorder was aggravated by his military service. The Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, other than PTSD to include a schizoaffective disorder, and it is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). Increased Rating 2. Entitlement to a temporary total rating based on hospitalization in excess of 21 days due to a service-connected disability. A temporary total disability rating (100 percent) will be assigned when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days. 38 C.F.R. § 4.29. Treatment records reveal the Veteran was hospitalized from November 10, 2010 to February 9, 2011 due to schizoaffective disorder. However, as outlined above, the Board has determined that service connection is not warranted for this disability. As the law does not provide for the assignment of a temporary total evaluation for a nonservice-connected disability, this claim must be denied as a matter of law. 3. Entitlement to a temporary total rating based on convalescence for treatment of a service-connected disability. A temporary total disability rating (100 percent) will be assigned when it is established by report at hospital discharge or outpatient release that entitlement is warranted. Total ratings will be assigned under this section if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or for continued use of wheelchair or crutches, (3) immobilization by cast, without surgery, of one major joint or more (emphasis added). 38 C.F.R. § 4.30. A review of the Veteran’s treatment records does not show that he received treatment for a service-connected disability which necessitated a period of convalescence. Therefore, this claim must be denied as a matter of law. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.M. Lunger, Associate Counsel