Citation Nr: 20072913 Decision Date: 11/12/20 Archive Date: 11/12/20 DOCKET NO. 17-45 045 DATE: November 12, 2020 ORDER The petition to reopen a claim of entitlement to service connection for schizophrenia is granted; the appeal is granted to this extent only. Entitlement to service connection for a psychiatric disability, other than anxiety and depression, claimed as posttraumatic stress disorder (PTSD) and schizophrenia, is denied. REMANDED Entitlement to service connection for anxiety and depression is remanded. FINDINGS OF FACT 1. A claim for service connection for a nervous condition was denied in June 1969; an appeal was not perfected, and no additional evidence was received within one year of the denial. 2. At the time of the June 1969 denial, the Veteran’s disability was diagnosed as schizophrenia. 3. The Veteran does not have a current disability of PTSD. 4. The Veteran has current disabilities of schizophrenia, undifferentiated, and vascular dementia with behavioral disturbance. 5. The Veteran’s schizophrenia was not chronic in service, manifest to a compensable degree within one year of service separation, and has not been productive of symptoms continuously since service. 6. The Veteran’s schizophrenia and vascular dementia are not related to service. CONCLUSIONS OF LAW 1. The June 1969 rating decision denying service connection for a nervous condition is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence to reopen the claim of entitlement to service connection for schizophrenia has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for acquired psychiatric disorder, to include PTSD, schizophrenia, and vascular dementia, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.384. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1953 to March 1955. This matter comes before the Board on an appeal from a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran has been adjudicated as not competent to handle disbursement of payments of VA compensation benefits, and his spouse has been appointed as his fiduciary with respect to matters before VA. See 38 C.F.R. § 20.301. She has pursued this appeal on his behalf and is the appellant in this case. This matter was previously before the Board in October 2018, and the Board denied the claim. The Veteran appealed the matter to the Court of Appeals for Veteran’s Claims (Court) and in a July 2019 order, the Court granted a Joint Motion for Remand (JMR), and vacated the Board’s October 2018 denial, remanding the matter to the Board for action consistent with the JMR. Whether New and Material Evidence has been Received to Reopen a Claim of Entitlement to Service Connection for Schizophrenia The Board has not addressed the procedural history of the Veteran’s claim for acquired psychiatric disorder, either in the October 2018 denial or the July 2019 remand. A previous claim for a nervous condition was denied in July 1969. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff’d, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board is whether new and material evidence has been received, regardless of how the RO characterized the issue. The Veteran originally filed a VA Form 9 in March 1969 in conjunction with other claims which was interpreted by the RO as claim for entitlement to service connection for a nervous condition. See March 1969 VA Form 1-9. This claim was denied in a July 1969 rating decision. The disability was identified as schizophrenia, undifferentiated, based on medical evidence then of record. The Veteran filed a notice of disagreement in July 1970 on another VA Form 9. A statement of the case was issued in October 1970. The Veteran’s spouse filed a VA Form 9 in December 1970. The RO determined the Form 9 was not valid as the Veteran was not incompetent and his spouse was not authorized to act on his behalf. The RO informed the Veteran of the problem in a February 1971 letter providing a new VA Form 9 and a note that, if the Veteran was incapacitated, to submit evidence proving that fact. The Veteran did not respond with either a valid Form 9 or evidence of incapacitation. Additional evidence of any sort was not received in the sixty days following the October 1970 statement of the case. Thus, the July 1969 rating decision is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. § 3.104 (2018). The July 1969 rating decision denied the prior claim because there was no evidence showing the Veteran’s schizophrenia was present in service or otherwise related to service. A March 2016 medical opinion has been received which states that the Veteran’s psychiatric disorders “are more probable than not [secondary] to his military service….” This evidence is new, relates to the grounds of the prior final denial, and raises a reasonable possibility of substantiating the claim since a prior final denial. The Board concludes that reopening is warranted. 38 C.F.R. § 3.156(a). Entitlement to service connection for a psychiatric disability, claimed as PTSD, anxiety, depression, and schizophrenia is denied. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, there must be competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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(b); 38 C.F.R. § 3.102. i. Current Disability The current claim stems from a July 2016 application listing “nerves, PTSD, and anxiety.” See July 2016 VA 21-526EZ. To establish a current psychiatric disability, VA requires the diagnosis to conform to the fifth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 4.125(a) (2020). The medical evidence establishes clearly that the Veteran has several current psychiatric disabilities. The Veteran’s VA treatment records reveal DSM-5 diagnoses of vascular dementia. See, e.g., October 2019 Psychiatric Note. The Veteran also has been under care and treated for schizophrenia, though the type of schizophrenia has varied in the record. The Board finds the Veteran has current disabilities of schizophrenia and vascular dementia. See Shedden, supra. The Board finds, however, that the Veteran does not have a current disability of PTSD. The Veteran’s July 2016 claim mentions PTSD as among those disabilities for which he sought benefits. In support, a March 2016 letter from Dr. C. M.-Q. indicates that the Veteran had paranoid schizophrenia and PTSD. The letter does not explain the basis of the diagnoses and whether they conform to the DSM-5. The Veteran underwent a February 2017 VA examination that has been determined to be inadequate for adjudication purposes. Specifically, the February 2017 VA examination found a diagnosis of PTSD, but provided a negative opinion based on the lack of a diagnosis for PTSD. The examiner provided no further rationale for their negative opinion regarding the other diagnosed psychiatric disabilities. See July 2019 JMR. Because of the discrepancies in the February 2017 findings and medical opinion, and the conflicting evidence of record, the Board remanded the appeal in January 2020 for a new opinion to reconcile whether the Veteran has a psychiatric disability diagnosis, to include PTSD, that is related to active service. See January 2020 Remand. A March 2020 VA examination and opinion were obtained the Board finds these reports are adequate for adjudication purposes. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The March 2020 opinion finds the Veteran does not meet the criteria for a diagnosis of PTSD. This opinion explains that the Veteran experienced a traumatic event in service and had intrusion symptoms associated with the event, satisfying Criteria A and B for a diagnosis. The examiner explained that the Veteran lacked the symptoms under Criteria C, D, and E, and as a result, Criteria F, G, and H were not met either. The Board finds that the March 2020 opinion outweighs the March 2016 opinion. The March 2016 private opinion does not include a discussion of the diagnostic criteria for PTSD or any rationale in support of the physician’s finding, unlike the March 2020 VA examination which included a comprehensive discussion the criteria for a diagnosis of PTSD and well-supported rationale. On the contrary, the March 2020 opinion discusses the Veteran medical history accurately and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds the March 2020 opinion is entitled to significant probative value as to a diagnosis of PTSD. 38 C.F.R. § 3.304(f)(3). The Board finds the preponderance of the evidence demonstrates that the Veteran does not have and has not had PTSD during the pendency of the appeal. The Board concludes the criteria for service connection for PTSD have not been met. 38 C.F.R. §§ 3.303, 3.304. ii. Presumptive Service Connection Psychoses, such as schizophrenia will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.383. The Veteran’s service treatment records, including his separation examination, are silent as to any psychiatric disorder or symptoms during service. See March 1955 Medical Examination. Post-service evidence of record reflects that the Veteran’s psychological problems manifested after he experienced an accident at his workplace in 1968, years after his discharge from the military. Specifically, a November 1971 psychiatric evaluation of the Veteran notes that, as a result of the workplace accident the Veteran developed a psychotic reaction, thought to be either schizophrenic reaction or psychotic depression. See November 1971 VA Examination. A June 1974 VA examination also concluded that the Veteran’s problems were “of a psychologic nature” and found the explosion at his work post-service resulted in anxiety, ideas of reference, depression, auditory hallucinations, and hyper-withdrawal. See June 1974 VA Examination. The Veteran provided a statement in November 2016 that recounted some experiences that occurred during service but largely concerned other disabilities. During the March 2020 VA examination, the Veteran reported that he had worked at a chemical plant from 1955 to 1970. He began to have problems with constant visual and auditory hallucinations and had not worked since. He did not report symptoms occurring during service, within one year of separation from service or continuously since service. The Board finds the preponderance of the evidence demonstrates that the Veteran’s schizophrenia was not chronic in service, manifest to a compensable degree within one year of service separation, and has not been productive of symptoms continuously since service. The criteria for presumptive service connection are not met. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). iii. In-Service Incurrence The Veteran related during his February 2017 VA examination that the war had ended when he was in Korea but he witnessed a person who appeared to be carrying a bag and a rifle being shot, and it was then discovered that the person had been carrying a baby and a cane. See February 2017 VA Examination. The Veteran presented this account again during his March 2020 VA examination. The examiner concluded that this stressor was credible. The Veteran is competent to report this incident and has been found credible by qualified medical experts. The Board finds the in-service event occurred. See Shedden, supra. iv. Nexus As to nexus between current disability and service, the Veteran was most recently examined in March 2020 and the examiner noted that the Veteran’s schizophrenia, undifferentiated and vascular dementia with behavioral disturbance were less likely than not due to his service, including his reported stressor. The examiner noted in support of their opinion that the Veteran’s service treatment records and post-service treatment records were silent for psychiatric disorder for many years after service. See March 2020 VA Opinion. The March 2020 VA examiner discussed the evidence showing the Veteran sought psychiatric evaluation in 1971 and also noted that the Veteran did not experience any impairment in function as a result of his reported stressor. Importantly, the March 2020 VA examiner noted the Veteran’s stressor meets the diagnostic criteria for PTSD, but that the Veteran does not meet the diagnostic criteria for experiencing symptoms, and there for does meet the criteria for a diagnosis of PTSD. The Board finds that the evidence weighs against finding a link between the Veteran’s current symptoms and the claimed stressor. The March 2020 examination is entitled to probative weight because it is based on a review of the relevant medical records and provides a rational basis for the conclusions that the Veteran’s psychiatric conditions are not service connected. Nieves-Rodriguez, 22 Vet. App. at 301. In contrast, the Veteran submitted a March 2016 opinion from his physician that his “psychiatric disorders... are more probable than not secondary to his military service performance” is not entitled to any weight because of the lack of any rationale offered for the opinion. The March 2016 opinion of the Veteran’s physician is not entitled to any probative weight because the physician merely lists PTSD as a diagnosis, without any evidence supporting their conclusion that it is related to the Veteran’s military service. See 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.”). Here, the evidence does not support a finding that the Veteran’s psychiatric disorders of schizophrenia, undifferentiated and vascular dementia are causally connected to his military service. The weight of the evidence, including the November 1971 and June 1974 VA examinations, and the Veteran’s statements, support the conclusions of the March 2020 VA examination that the Veteran’s psychiatric disorders are not related to his active service. The benefit-of-the-doubt doctrine is not applicable as to the this claim because the medical evidence submitted by the Veteran has no probative weight and the remaining evidence in the file is not in equipoise. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for anxiety and depression is remanded. The Board regrets the additional delay, but remand is necessary to resolve the remaining aspects of the appeal. The Veteran’s VA and private treatment records reflect that, during the period on appeal, he has been diagnosed with generalized anxiety disorder and recurrent major depressive disorder. See, e.g., October 2019 VA Psychiatric Note. The March 2016 opinion from Dr. C. M.-Q. directly relates the depressive disorder to service, albeit without any rationale. The Board remanded in this in January 2020 for further examination and opinion; however, the obtained medical opinion did not address these additional diagnoses and whether they are misdiagnoses or are evidence of other, present psychiatric disabilities even if they have resolved and, if so, whether they are at least as likely as not. The Board remands for additional examination and opinion to determine whether the anxiety and depression disorders were present at the time of claim filing or any time thereafter and, if so, whether any such disorder is related to service. The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for an appropriate VA examination to determine the nature and etiology of all current psychiatric disorders. All diagnostic testing deemed to be necessary by the examiner should be accomplished. After examination of the Veteran and a review of the claims file, the examiner should do the following: a) The examiner should determine whether the Veteran had or has had either generalized anxiety disorder or a major depressive disorder at any time since July 2016. b) If the Veteran had or has had either generalized anxiety disorder or a major depressive disorder at any time since July 2016, the examiner should opine as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that such disorder had its clinical onset in service or is otherwise related to active duty. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.