Citation Nr: 20021497 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-27 714 DATE: March 26, 2020 ORDER Entitlement to an acquired psychiatric disorder, including schizoaffective disorder and psychosis not otherwise specified (NOS) is denied. FINDING OF FACT An acquired psychiatric disability, identified as schizoaffective disorder, is not the result of a disease or injury incurred in active duty service. A psychosis was not manifested in service or to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for entitlement to an acquired psychiatric disorder, including schizoaffective disorder and psychosis NOS have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1994 to August 1995. This appeal arises from a February 2011 rating decision, denying service connection for a schizoaffective disorder (claimed as mental disorder). The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has characterized the issue as entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and psychosis NOS. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In June 2015, May 2017, December 2017, June 2018 and January 2019, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. Entitlement to an acquired psychiatric disorder, including schizoaffective disorder The Veteran contends he developed a severe mental disorder during service. The Veteran contended that prior to military he was not having any mental problems, but shortly after enlistment he began having issues. Specifically, the Veteran reports he began hearing voices while in service telling him to kill. See July 2010 claim. 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, including psychosis, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). At the outset, the Board observes that a question was raised as to whether the Veteran had a pre-existing psychiatric disability, i.e., whether the Veteran’s schizoaffective disorder preexisted his military service. In particular, the July 2017 VA examiner discussed that on review of his post-service medical records, the Veteran did report auditory and visual hallucinations since junior high school. However, the record shows that the Veteran’s January 1994 entrance examination is absent of any notations of defects, infirmities, or disorders. Additionally, the October 2019 VA examiner opined, “It is less likely than not the [V]eteran’s acquired psychiatric disability of schizoaffective disorder clearly and unmistakably existed prior to service.” The examiner found that the overall evidentiary record contains almost no documentation to suggest a pre-service mental disorder, and rather, only the veteran’s own testimony to providers suggests the possibility of pre-service symptoms of a mental disorder. Notably, although the Veteran would be competent to testify concerning experiencing hallucinations, nonetheless, such statements on any pre-existing psychiatric symptoms are inconsistent, and thus, simply not credible, and not probative in support of his claim. For instance, in his July 2010 claim, he specifically denied that he had mental illness or symptoms of a mentally disturbed person prior to entering service. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Therefore, in this case, the presumption of soundness has attached. See Gilbert, 26 Vet. App. 48, 52 (2012). The Board will adjudicate the appeal as one for direct service connection. The Veteran currently has an acquired psychiatric disability, diagnosed as schizoaffective disorder, bipolar type, per the October 2019 VA examiner’s opinion report. VA treatment records, dated in January 2018, also show a diagnosis for psychosis NOS. The Board’s review of the service treatment records does not reveal that the Veteran had any in-service treatment or diagnoses of an acquired psychiatric disability, including schizoaffective disorder. During service, the Veteran was referred for mental status examination by his command for a history of poor duty performance. An April 1995 Report of Mental Status evaluation found no Axis I and II psychiatric disease or defect, such that he was psychiatrically cleared and met retention standards, although he declined assistance for occupational stress management. Soon thereafter, at the June 1995 separation exam, the Veteran reported depression, worry and nervous trouble. However, the June 1995 separation examiner did not diagnose any psychiatric disability and found a normal clinical psychiatric evaluation. The Board observes that a June 1995 service personnel record dispensed an Article 15 misconduct punishment of extra duty for 45 days, for the Veteran’s wrongful use of cocaine in violation of military rules. In July 1995, the Veteran issued a general discharge (under honorable conditions), for commission of a serious offense, i.e., cocaine use. Further, of record is a highly probative medical opinion weighing against the possibility that an acquired psychiatric disability is related to service. The October 2019 VA examiner opined that it is less likely than not the Veteran’s acquired psychiatric disability, schizoaffective disorder, had its onset during active service or otherwise is related to service. The examiner reasoned, “a) the only documented mental or behavioral issue during his service career is that he was abusing illegal drugs and was administratively discharged because of this (“abuse of illegal drugs (cocaine)”- DD214); b) he never sought mental health treatment during service; c) he was never diagnosed or treated for a mental disorder during service; d) there’s no evidence in service treatment or personnel records the veteran experienced a traumatic incident or event in service that could be hypothesized to contribute to mental or behavior problems; e) a 4/19/95 Report of Mental Status Evaluation determined “there is no psychiatric disease or defect”; f) outpatient treatment records from the VAMC Dallas in January 2018 do not correlate his substance abuse, psychosis, or mood symptoms with service; and g) there is no evidence of mental health complaints or treatment until 1997, two years after service- and only after being incarcerated for robbery (at which point he claimed to hear “mumbling voice”). Moreover, the VA examiner attributed the Veteran’s admissions of depression, worry and nervous trouble at the separation examination to his concurrent in-service misconduct and disciplinary problems for abuse of illegal drugs, as opposed to psychiatric symptoms. Given the VA examiner's thorough review of the claims file and sound rationale of the opinion, the Board finds the VA examiner's opinion is highly probative evidence against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also observes that a July 2017 VA examiner’s medical opinion, and March 2018 addendum opinion, also provided a negative nexus opinion against the possibility of direct service connection. However, these opinions are accorded lesser probative value, as the rationales provided do not appear to be supported based on a thorough review of the evidence. Also, a June 2019 VA examiner appears to essentially be declining to provide an opinion, so that it is provided no probative value for or against the claim. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion, such as diagnosing an acquired psychiatric disorder or determining its etiology. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex. Therefore, while the Veteran asserts his present acquired psychiatric disorder, including schizoaffective disorder and psychosis, began during or was otherwise caused by his military service, he is not competent (i.e., medically qualified) to address the etiology of any claimed acquired psychiatric disorder. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Also, the Veteran’s statements of psychiatric symptoms beginning in service are contradicted by an in-service April 1995 mental status evaluation that found he had no psychiatric disease or defect. Moreover, the October 2019 VA examiner’s opinion attributes his few reported psychiatric symptoms at his service separation examination to his concurrent disciplinary problems arising from substance abuse. As such, statements regarding a continuity of psychiatric symptoms shortly after service started are not competent or credible, and thus not probative in support of his claim. Further, the Veteran does not meet the criteria for presumptive service connection. Although VA treatment records have shown a diagnosis for psychosis, NOS, the record does not show psychosis was diagnosed, much less manifested to a compensable degree (10 percent) during service or within a year following separation, or August 1996. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The Board concludes the evidence does not support the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, Counsel 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.