Citation Nr: 21001845 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-04 088 DATE: January 12, 2021 ORDER The Board of Veterans’ Appeals (Board) July 20, 2020, decision denying service connection for an acquired psychiatric disorder, including schizoaffective disorder, is vacated. Entitlement to service connection for schizoaffective disorder is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. Prior to the July 20, 2020 Board decision, additional evidence was received that was not considered by the Board. 2. Resolving all reasonable doubts in favor of the Veteran, the evidence of record is at least in equipoise as to whether his schizoaffective disorder arose during or as a result of his active service. CONCLUSIONS OF LAW 1. The criteria for vacating the July 20, 2020, Board decision denying service connection for an acquired psychiatric disorder, including schizoaffective disorder, are met. 38 U.S.C. § 7104; 38 C.F.R. § 20.904. 2. The criteria for entitlement to service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1975 to January 1979. This matter was previously before the Board of Veterans’ Appeals (Board) on an appeal from a June 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently remanded by the Board in June 2019 so that the Veteran could be afforded an additional VA examination. The Board finds that the RO substantially complied with the Board’s remand directives, and the Board may now proceed with adjudication. In July 2020, the Board issued a decision denying the Veteran’s claim for service connection. In August 2020, the Board received correspondence and evidence from the Veteran’s counsel requesting reconsideration of the July 2020 decision. Counsel asserts that he submitted additional evidence in support of the claim that was not considered at the time of the decision. A review of the record shows that on July 20, 2020, (the date of the decision), the Board received medical evidence dated July 7, 2020. As the Board did not review this evidence, its earlier decision must be vacated. The Board may vacate an appellate decision at any time upon request of the Veteran or his representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.904. Accordingly, the July 2020 Board decision is vacated. The Veteran asserts that he suffers from schizoaffective disorder and PTSD as a result of his active service. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran’s claim to include any psychiatric disorder. Additionally, as discussed in the remand section below, the Board finds that additional development is needed prior to adjudicating the issue of whether the Veteran’s PTSD arose during or as a result of his active service; however, no such development is needed concerning his schizoaffective disorder. Accordingly, the claim for PTSD has been recharacterized as a separate issue and remanded for additional development. 1. Entitlement to service connection for schizoaffective disorder The Veteran asserts that he experiences an acquired psychiatric disorder, including schizoaffective disorder, that arose during or as a result of his active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service.38U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331(Fed. Cir. 2013). Service connection may be granted for any disease initially 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Veteran’s service treatment records (STRs) are negative for any complaints, treatment, or diagnosis of psychiatric disorders or for records related to mental health issues. The Veteran’s January 1979 pre-discharge medical examination was negative for any psychiatric issues or complaints. In a February 2010 medical evaluation, a physician diagnosed the Veteran with schizoaffective disorder. The Veteran’s VA and private treatment records reflect ongoing treatment for schizoaffective disorder but are negative for evidence or medical opinions tying his current disabilities to his active service. During his May 2017 Board hearing, the Veteran attributed his psychiatric problems to seeing dead bodies during his active service and stated that he was prescribed medication for his disabilities. The Veteran’s wife stated that he was consistently depressed and experienced nightmares. During the Veteran’s October 2019 VA examination for mental disorders other than PTSD, the VA examiner stated that the Veteran met the criteria for a diagnosis of major depressive disorder (MDD), and his MDD resulted in severe occupational impairment. The examiner opined that the Veteran did not have an acquired psychiatric disorder, including schizoaffective disorder, that was at least as likely as not related to his active service. The examiner noted that the Veteran’s STRs were negative for any mental health problems, and they stated that the Veteran’s mental health issues were more likely related to post-service events in his life. The Veteran reported being diagnosed with hepatitis C was devastating, and the examiner found that the loss of his only child and struggle to find or maintain employment contributed to his depression. In a June 2020 lay statement, the Veteran asserted that his depression and mental health issues began during service, as a result of seeing dead bodies, and disagreed with the examiner’s conclusion that post-service events, including the loss of the Veteran’s child, were the primary cause of the Veteran’s post-service mental health problems. In July 2020, the Veteran submitted a PTSD Disability Benefits Questionnaire (DBQ) and medical opinion by a private physician. The physician diagnosed the Veteran with PTSD and schizoaffective disorder. The physician reviewed the Veteran’s service history and post-service mental health treatment history and opined that his conditions were at least as likely as not caused by his active service, including the post-recovery event of Jonestown, Guyana that the Veteran had been involved in. While there is positive and negative evidence regarding the Veteran’s claim as to schizoaffective disorder, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, the evidence of record is at least in equipoise. While the October 2019 VA examiner opined that the Veteran did not have an acquired psychiatric disorder that arose as a result of active service, the July 2020 private physician reached the opposite conclusion. After considering the Veteran’s lay statements and resolving all reasonable doubts in his favor, the Board finds the evidence is at least in equipoise, and the benefit of the doubt will go to the Veteran. Accordingly, service connection for schizoaffective disorder is granted. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The July 2020 DBQ and medical opinion by a private physician diagnosed the Veteran with PTSD. The Board notes that the Veteran has not since been afforded a VA examination for PTSD, and the RO has not yet adequately attempted to verify his asserted in-service stressors. Accordingly, this claim must be remanded for additional development. The matters are REMANDED for the following action: 1. Take appropriate action to verify the asserted in-service stressors reported by the Veteran in lay statements and the July 2020 private medical opinion. Document the claims file accordingly. 2. Schedule the Veteran for a VA examination, with a psychiatrist or psychologist, with regard to his claim of service connection for PTSD. The examiner should review the file. The examiner should also discuss the Veteran’s military and medical history, and current complaints and symptoms, with the Veteran and document the Veteran’s assertions in the examination report. All opinions must be supported by a rationale. The examiner should identify the Veteran’s current psychiatric disorder(s), including whether he meets the criteria for PTSD. If PTSD is not diagnosed, it should be explained why this is so. If PTSD is present, the examiner is requested to identify the stressor(s) that support the diagnosis. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, Associate 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.