Citation Nr: 21003769 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-39 849 DATE: January 22, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for erectile dysfunction is granted. Entitlement to service connection for a left hand disability manifested by tremors is granted. FINDINGS OF FACT 1. An acquired psychiatric disorder had its’ onset in service. 2. Erectile dysfunction and left hand tremors are due to the medication the Veteran takes to treat his service-connected acquired psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, erectile dysfunction, and left hand tremors are met. 38 U.S.C. §§ 101, 106, 1101, 1111, 1112, 1113, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1980 to May 1981. The Veteran also had service with a Reserve Component from May 1980 to May 1986. In May 2018, the Board of Veterans’ Appeal (Board) remanded the appeal. In September 2019, a Veterans’ Law Judge other than the undersigned issued a decision that denied the appeal. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent August 2020 order, which incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the September 2019 Board decision. Initially, the Board notes that it has characterized the claim of service connection for an acquired psychiatric disorder as it appears above because the record shows the Veteran has a number of psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Service Connection Claims Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “[F]ear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). a. Service connection for an acquired psychiatric disorder. Initially, the record shows the Veteran being diagnosed with acquired psychiatric disorders (i.e., a schizoaffective disorder, schizophrenia, bipolar disorder, and depression). See, e.g., Temple University Hospital treatment records dated from November 1982; COMHAR treatment records dated from December 2015; Psychiatric Disability Benefits Questionnaire (DBQ) dated in August 2018; VA examination dated in June 2019. Next, and as noted in the JMR and the earlier Board decision, the Veteran claims that he is entitled to service connection for an acquired psychiatric disorder because he began to hear voices and speak to himself while on active duty and he has had similar problems with these observable symptoms of his psychiatric disorder since that time. See, e.g., VA 21-0781, Statement in Support of claim for PTSD dated in May 2013; Psychiatric DBQ dated in August 2018; VA examination dated in June 2019. In this regard, while the Veteran is not competent or credible to diagnose an acquired psychiatric disorder because this is a complex medical question, the Board nonetheless finds that he competently and credibly reported on his observable symptoms (i.e., hearing voices and speaking to himself) of his acquired psychiatric disorder in and since service because these symptoms come to him via his own senses. See Davidson, supra. Next, while the Veteran’s active duty service treatment records are negative for the diagnosis of an acquired psychiatric disorder, the Board notes that a further in-depth review of the record discloses November 1982 medical records from Temple University Hospital, just 19 months after the appellant’s May 1981 release from active duty and while still serving with a Reserve Component, that document his involuntary psychiatric hospitalization (i.e., the records show his brother had him hospitalized because he was a danger to himself and others) due to an acquired psychiatric disorder diagnosed as schizophrenia psychosis. Parenthetically, the Board notes that it would have been valuable to the Board if the Court or the Veteran’s attorney would have referenced the November 1982 Temple University Hospital medical records in the JMR, as opposed to the Board’s alleged failure to discuss the competency and credibility of the appellant’s assertion that he began to hear voices during military service, as the basis for the JMR, because on page five of the prior September 2019 Board decision, it did, in fact, discuss these lay claims. Tellingly, a Reserve Component examination also held in November 1982 included the Veteran’s denial of his having a history of depression, excessive worry, and nervous trouble. Moreover, the November 1982 examination as well as the earlier November 1980 and April 1981 active duty examinations found that the Veteran’s psychiatric examination was normal. However, the Board finds these service examiners’ psychiatric examinations lack some probative value. The Board has reached this conclusion because the November 1982 involuntary psychiatric hospitalization, which documented the Veteran was delusional and having hallucinations, shows that he was in denial as to his having psychiatric problems while on active duty as well as while serving with a Reserve Component. See Owens, supra. In other words, the Board finds that the most probative evidence of record is the November 1982 involuntary psychiatric hospitalization records from Temple University Hospital and these records show that the Veteran was suffering from an acquired psychiatric disorder while on active duty and he hid this fact (or was not aware of this fact) from the Army and the examiner’s that held his November 1980 and April 1981 active duty examinations as well as the November 1982 Reserve Component examination. Id; Also see 38 C.F.R. § 3.304(b) (“[s]igned statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record.). Given this record and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he had a disease (i.e., an acquired psychiatric disorder) while on active duty. 38 U.S.C. §§ 101, 106, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(b); see also Gilbert, supra. Further, given the nature of the Veteran’s disease (i.e., an acquired psychiatric disorder manifested by hearing voices and speaking to himself), the November 1982 involuntary psychiatric hospitalization at Temple University Hospital just 19 months after his May 1981 release from active duty and while still serving with a Reserve Component, and the subsequent post-service treatment records which regularly document his continued complaints and treatment for acquired psychiatric disorders, it is reasonable for the Board to find that he had problems with an acquired psychiatric disorder during, or within one year of service, and since service. See Davidson, supra; Owens, supra. The June 2019 VA examiner opined, in substance, that the Veteran’s acquired psychiatric disorder is not due to his military service. However, the Board finds that this opinion lacks som probative value because it relied on a faulty factual premise. Specifically, the VA examiner opined that the Veteran’s acquired psychiatric disorder was not due to his military service because he did not have document complaints, diagnoses, or treatment for an acquired psychiatric disorder until 1987 when, as explained above, the record shows the appellant undergoing an involuntary psychiatric hospitalization at Temple University in November 1982. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Board also finds that the June 2019 VA opinion lacks some probative value because it disregarded the Veteran’s competent and credible lay claims of having observable symptoms of an acquired psychiatric disorder (i.e., hearing voices and speaking to himself) while on active duty simply because active duty treatment records did not document these complaints. See Davidson, supra. Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran had problems with an acquired psychiatric disorder since a qualifying period of service is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board concludes that he did. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert, supra. Accordingly, the Board finds that service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. §§ 101, 106, 1131; 38 C.F.R. § 3.303. b. Service connection for erectile dysfunction and left hand tremors. As to the claims of service connection for erectile dysfunction and a left hand disability manifested by tremors, it is claimed that they are due to his acquired psychiatric disorder including the medication he takes to treat this disorder. Initially, the Board notes that the record shows the Veteran being diagnosed with erectile dysfunction and left hand tremors. See, e.g., COMHAR treatment records dated in January 2016, March 2016, and/or March 2017. Moreover, as explained above, the Veteran meets the criteria for service-connected for an acquired psychiatric disorder. Therefore, the Board finds that the appeal turns on whether the record contains competent and credible evidence that shows that the Veteran’s erectile dysfunction and left hand tremors are caused or aggravated by his service-connected acquired psychiatric disorder. See 38 C.F.R. § 3.310; Wallin, supra. In this regard, the June 2019 VA examiner reported that the Veteran treats his service-connected acquired psychiatric disorder with Haldol, Benztropine, and Zoloft. Moreover, publicly available records show that the side effects of the medications the Veteran takes to treat his service-connected acquired psychiatric disorder include erectile dysfunction and hand tremors and these records are not directly contradicted by any other evidence of record. See Owens, supra. Under such circumstances and with granting the Veteran the benefit of any doubt in this matter, the Board concludes that service connection for erectile dysfunction and left hand tremors is warranted. 38 U.S.C. §§ 101, 106, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.