Citation Nr: 20034470 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-23 334 DATE: May 18, 2020 ORDER The claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, is granted. FINDINGS OF FACT 1. In an unappealed rating decision dated September 2008, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran’s claim for service connection for PTSD. 2. Since the September 2008 rating decision, new evidence that relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for PTSD has been associated with the claims file. 3. The evidence is at least in equipoise that the Veteran has an acquired psychiatric disorder that is etiologically related to his active service. CONCLUSIONS OF LAW 1. The September 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. 2. The criteria to reopen the claim for service connection for PTSD have been met. 38 U.S.C. § 5108(a); 38 C.F.R. § 3.156(a). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizophrenia, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1967 to May 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a February 2019 hearing, a transcript of which is associated with the claims file. VA received evidence subsequent to the final consideration of the claim by the RO, but the Veteran waived RO consideration of that evidence in correspondence received in September 2019. The Board may consider the appeal. See 38 C.F.R. § 20.1304(c). Petition to Reopen The Veteran seeks to reopen his claim for service connection for PTSD. The RO denied the claim in a September 2008 rating decision on grounds that the evidence did not show a verified in-service stressor. The September 2008 rating decision became final because the Veteran did not file a notice of disagreement or new and material evidence within one year following notification of the decision. To reopen a claim that was denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence means evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence added to the electronic claims file since the September 2008 rating decision includes concession by VA of the Veteran’s asserted in-service stressor, extended underwater training during BUD/S training. This evidence is new, as it was not previously considered in the prior final rating decision, and is material as it relates to the existence of an in-service stressor. The Veteran’s claim for service connection for PTSD is reopened. Service Connection for an Acquired Psychiatric Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The Veteran contends that he has PTSD and/or a non-PTSD acquired psychiatric disorder that developed as a result of underwater Navy BUD/S training (Basic Underwater Demolition/SEAL School) that triggered traumatic memories of having his head forcibly submerged underwater for over two minutes by his parents when he was a child. See, generally, October 2006 OSP-SMU Admission Psychiatric Evaluation (Veteran reported that as a child he was “held under water for over two minutes and the paramedics had to be called”); November 2007 PTSD Questionnaire (stating that being underwater and participating in water-based training were traumatic to the point he often felt he was drowning or being dragged out to sea to drown); January 2016 VA Decision Review Officer Conference Report; February 2019 Board hearing transcript. The Veteran was first diagnosed with PTSD during active service, and has since received additional diagnoses including schizophrenia and psychosis NOS (not otherwise specified). See, e.g., December 2001 Standard Form 513 (PTSD); October 2006 Prison Admission Psychiatric Evaluation (PTSD); February 2010 private Psychiatric Diagnostic Interview (schizophrenia); April 2014 VA psychiatric examination (noting examiner “substantiated a diagnosis of schizophrenia”); November 2015 VA mental health consultation note (psychosis NOS and schizophrenia). The Board has consolidated the Veteran’s claims for PTSD and for non-PTSD acquired psychiatric disorders into a single claim for an acquired psychiatric disorder, generally, to include both PTSD and non-PTSD disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As noted above, VA has conceded the Veteran’s claimed in-service stressor, such that the remaining issue before the Board is whether there is a causal relationship or nexus between any of his currently diagnosed acquired psychiatric disorders and the verified in-service event upon which his claim (and PTSD diagnosis) is based. For the reasons set forth below, the Board finds that the evidence is at least in relative equipoise that the Veteran has an acquired psychiatric disorder that is etiologically related to his BUD/S training and that service connection is warranted. As an initial matter, every Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as “noted” for the purpose of this analysis. 38 C.F.R. § 3.304(b). If a condition is not “noted” upon entrance into service, VA must rebut the presumption of soundness by showing clear and unmistakable evidence that (1) there was a pre-existing condition and (2) that the pre-existing condition was not aggravated during or by the Veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Relevant to this case, the Veteran did not report any history of psychiatric symptoms, treatment, or diagnoses in his September 1999 pre-service Report of Medical History, and his contemporaneous Report of Medical Examination shows that his psychiatric clinical evaluation was normal. Thus, the Veteran had no “noted” acquired psychiatric disorder at the time of his entrance into active service. There must be clear and unmistakable evidence that the Veteran had a pre-existing acquired psychiatric disorder sufficient to rebut the presumption of soundness. The Veteran’s service treatment records show that in November 2001 he was charged with drunk and disorderly conduct and referred for psychiatric evaluation. See December 2001 Standard Form 513. He was diagnosed with PTSD and alcohol and nicotine dependence under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) that was in effect at the time. The DSM-IV had five parts, called axes, and each axis gave a different type of information about the diagnosis. Axis IV was used to describe psychosocial and environmental factors affecting the person. The Veteran’s diagnosis shows an Axis IV factor of occupational problems. The evaluation report also notes that the Veteran had concerns with his childhood and reported physical and emotional abuse, though those factors were not specifically noted under Axis IV. In his December 2001 pre-discharge Report of Medical History, the Veteran marked “yes” to whether he then or ever had “frequent trouble sleeping” and “depression or excessive worry.” His January 2002 pre-discharge Report of Medical Examination notes in the summary of defects and diagnoses that the Veteran had a history of physical and emotional abuse, with alcohol dependence and nicotine abuse. Since his discharge from service, the Veteran has received mental health treatment from a variety of sources, including from state providers while he was incarcerated, from private mental health providers, and from VA. The Veteran has consistently reported to his providers that he began experiencing auditory hallucinations in connection with his BUD/S training. See, e.g., December 2005 Mental Health Evaluation Psychosocial History (Veteran reported that he began hearing voices when trying out for Navy Seals); February 2010 private Psychiatric Diagnostic Interview (Veteran reported auditory hallucinations began in 2000 while he was doing BUD/S training but he did not report them and thought they were part of the training); October 2013 VA Mental Health Initial Evaluation Note (Veteran reported symptoms began during service and that he abused alcohol in service to manage auditory hallucinations). Regarding the etiology of the Veteran’s acquired psychiatric disorders, an October 2006 Admission Psychiatric Evaluation that was conducted while he was incarcerated notes that he “appears to have suffered significant abuse during his upbringing and that his presenting mental health issues appear to be a sequelae of these events/experiences.” Another Admission Psychiatric Evaluation that was conducted in November 2007 while the Veteran was incarcerated notes that he “has a well-established history of PTSD from extensive physical abuse during his childhood.” The Board affords some probative value to these reports but finds that their failure to address the Veteran’s previously reported in-service onset of auditory hallucinations (which was part of his prison health records) renders their analysis incomplete, which somewhat reduces their evidentiary weight. The Veteran underwent a VA psychiatric examination in April 2014 at which time the examiner noted that she “substantiated a diagnosis of schizophrenia” but “was not able to find evidence of symptoms of psychosis or any treatment” of the condition during the Veteran’s service. The Board finds the examination report to be of little probative value as to the etiology of the Veteran’s acquired psychiatric disorder. First, in stating she was unable to find “any evidence” of in-service symptoms, the examiner either missed or disregarded the Veteran’s statements regarding auditory hallucinations that began during service after BUD/S training. See December 2005 Mental Health Evaluation Psychosocial History (Veteran reported that he began hearing voices when trying out for Navy Seals); February 2010 private Psychiatric Diagnostic Interview (Veteran reported auditory hallucinations began in 2000 while he was doing BUD/S training but he did not report them and thought they were part of the training); see also Miller v. Wilkie, __ Vet. App. __, No. 18-2796, 2020 U.S. App. Vet. Claims LEXIS 64 at *19 (January 16, 2020) (holding that the duty to assist requires that an examiner “address the veteran’s lay statements to provide the Board with an adequate medical opinion”). The RO obtained another VA psychiatric opinion in January 2016. That examiner opined that it “appears” the Veteran’s in-service PTSD diagnosis was based on “severe childhood abuse,” and that although the Veteran was charged with alcohol-related misconduct during service and eventually forced out of service for alcohol abuse, there was “no evidence” that the Veteran’s PTSD was aggravated by service because the Veteran’s alcohol abuse began at age 16. See also December 2001 Standard Form 513 (showing Veteran’s reported alcohol consumption beginning at age 16). The Board finds this portion of the opinion is inadequate. First, it offers no independent analysis regarding the onset of the Veteran’s PTSD, nor any analysis of the Veteran’s specific lay statements regarding onset and causality. See Miller v. Wilkie, supra. Next, the finding that the Veteran’s 2001 PTSD diagnoses was based solely on childhood abuse is not supported by the December 2001 Standard Form 513 in which the diagnosis was noted. Although that document does show that the Veteran reported childhood physical and emotional abuse, it specifically identified the Veteran’s occupational problems, which at the time was his Naval service, as the Axis IV component of his PTSD diagnosis. Finally, the statement that the Veteran’s use of alcohol starting at age 16 equates to “no evidence” of in-service aggravation is conclusory and of no probative value without an underlying rationale. The January 2016 VA psychiatric examiner was also asked to provide an opinion of whether the Veteran had schizophrenia and/or bipolar disorder that was related either to treatment in service or to BUD/S training. The examiner essentially opined that the Veteran did not have schizophrenia and/or bipolar disorder that began during service because the Veteran’s service records did not show evidence of a psychotic break or any symptoms that would suggest the beginning of schizophrenia or bipolar disorder. The examiner cited to the previous April 2014 VA psychiatric examination report, stating that it appeared to be the “most accurate in describing the lack of evidence of schizophrenia during service.” The Board finds this portion of the January 2016 opinion to be inadequate. First, it failed to address the substance of the Veteran’s prior lay statements regarding the onset of auditory hallucinations during his BUD/S training. See Miller v. Wilkie, supra. Next, it impermissibly relied on the putative absence of complaints, treatment, or diagnoses in the Veteran’s service treatment records. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). In addition, it failed to address the Veteran’s report of symptoms of “frequent trouble sleeping” and “depression or excessive worry” in his December 2011 Report of Medical History, and why those symptoms were not medically significant. The record also contains letters from two of the Veteran’s VA psychiatrists as well as testimony from the Veteran’s VA Licensed Clinical Social Worker (LCSW), who testified at the Veteran’s January 2016 informal VA Decision Review Officer (DRO) conference. One of the Veteran’s VA psychiatrists stated in a November 2013 VA Mental Outpatient Note and in a December 2013 VA Form 21-4138 that it was his opinion that it was “clearly more likely than not” that the first symptoms of the Veteran’s schizophrenia occurred during active service based on statements made by the Veteran “on several occasions” in the course of receiving treatment. That psychiatrist also stated that he found the Veteran “to be a highly credible historian in this matter.” Although it is within the Board’s purview to determine the credibility of evidence, the psychiatrist’s evaluation of the Veteran as a “credible historian” is probative of the psychiatrist’s overall professional medical judgment about the Veteran. One of the Veteran’s other VA treating psychiatrists stated in a February 2019 VA Mental Health Outpatient Note that his “professional opinion is identical” to the November 2013 VA treating psychiatrist’s opinion, based on both his treatment of the Veteran since 2013 and what he described as having “thoroughly reviewed” the Veteran’s complete medical history. According to the January 2016 DRO Conference Report, the Veteran’s VA LCSW opined that the Veteran’s psychiatric symptoms began during service, based on her treatment of the Veteran as well as her review of the Veteran’s prior treatment records. The Board finds that the opinions of the Veteran’s treating VA psychiatrists and VA LCSW are highly probative of the in-service onset of the Veteran’s acquired psychiatric disorder. Unlike the April 2014 and January 2016 VA examiner reports which relied primarily on the absence of medical records that corroborated the Veteran’s lay statements and did not address the substance of the statements themselves, the opinions of the Veteran’s treatment providers considered the Veteran’s reports in the context of several combined years of treatment, in addition to the review of medical records in the case of the February 2019 opinion. Although there is some evidence that the Veteran’s current acquired psychiatric disorder(s) may have had their onset during childhood as a result of physical and emotional trauma, the Board finds that there is not clear and unmistakable evidence that the Veteran had a pre-existing acquired psychiatric disorder sufficient to rebut the presumption of soundness. While he certainly experienced stressors prior to service, he did not actually have a psychiatric condition prior to service. Viewing the records as a whole, the evidence shows that the Veteran experienced physical and emotional trauma as a child, to include being forcibly held underwater for an extended period, and that the Veteran credibly began experiencing symptoms of an acquired psychiatric disorder, namely auditory hallucinations and frequent trouble sleeping, that were triggered by his water-based BUD/S training. This was initially diagnosed as PTSD, although it appears that over the course of many years of treatment it has since been primarily characterized as schizophrenia. Based on the foregoing, the evidence is at least in relative equipoise that the Veteran has an acquired psychiatric disorder that was caused by an in-service event. The Veteran’s claim for service connection for an acquired psychiatric disorder is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leamon 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.