Citation Nr: 21005190 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-20 299A DATE: January 29, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include schizophrenia is denied. FINDING OF FACT The preponderance of the evidence does not support that the Veteran’s psychiatric disorder manifested during service or was otherwise related to his active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include schizophrenia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1969 to June 1969. The appellant is the Veteran’s surviving spouse. At the time of the Veteran’s passing, the instant claim was on appeal. In July 2019, the appellant filed a claim for substitution. In April 2020, the Agency of Original Jurisdiction (AOJ) found that the appellant is a valid substitute claimant to continue the appeal. See 38 C.F.R. § 3.1010 (2018). Initially, the Board expresses its sympathy to the Veteran’s family for their loss and recognizes the valuable service he gave the United States during his service in the United States Marine Corps. This matter came before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by AOJ. The matter was previously remanded by the Board, most recently in August 2020. It has been returned to the Board for appellate review. The appeal was remanded in August 2020 obtain an adequate medical opinion as to the nature and etiology of the Veteran’s psychiatric disorder. The Veteran was afforded a VA examination in November 2020. The Board finds that the medical opinion issued with the November 2020 examination is supported by sufficient rationale. Thus, the Board determines that there has been substantial compliance with the August 2020 remand directives. Therefore, further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). Entitlement to service connection for a psychiatric disorder to include schizophrenia Service Connection Law Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran who served on active duty 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.” 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Every veteran shall be taken 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. 38 U.S.C. § 1111. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the presumption of soundness attaches, the burden shifts to the Secretary to show by clear and unmistakable evidence that: “(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service.” Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an “onerous” evidentiary standard, requiring that the no-aggravation result be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096; 38 U.S.C. § 1153. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis As to a current disability, the Veteran was diagnosed with schizophrenia. Most recently, in November 2020, a VA examiner confirmed this diagnosis after review of the Veteran’s file. The examiner explained that although the Veteran had periods of remission during his lifetime, his recurrent symptoms met the diagnostic criteria for schizophrenia. Further, the examiner refuted a November 2017 diagnosis of Unspecified Depressive Disorder and Anxious Distress explaining that the examiner who proffered this diagnosis did so without adequately considering the Veteran’s longitudinal mental health records. The Board finds November 2020 examination report probative as it is consistent with the evidence which reveals repeated episodes of active schizophrenia and periods of remission. Therefore, the first element of service connection, a current disability, is established. Turning to an in-service incurrence, the Veteran contended that he had a psychiatric disability that predated service which was aggravated during active duty. Alternatively, he argued that his psychiatric symptoms, including auditory hallucinations, had their onset during service. Here, there is no notation in the Veteran’s February 1969 entrance examination regarding any psychiatric symptoms or disabilities; thus, the presumption of soundness applies. However, this presumption can be rebutted if there is clear and unmistakable evidence that the disability pre-existed service and was not aggravated by service. Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)). In this case, there is a question as to whether the Veteran’s schizophrenia preexisted his active duty military service from February 1969 to June 1969. The Veteran reported that he began hearing voices in the early 1960’s and his childhood and adolescent years were hallucinatory at times. The Veteran also alleged he was involved in a motor vehicle accident in 1968 and suffered a traumatic brain injury (TBI). He contended that the TBI was not healed when he enlisted in 1969 and went through rigorous training which he felt aggravated his TBI and caused his psychiatric symptoms. The Veteran’s reports regarding the onset of his symptoms were inconsistent throughout the record. The Veteran reported a range of onset dates from the early 1960s to sometime in 1977. Thus, his lay statements do not constitute clear and unmistakable evidence sufficient to rebut the presumption of soundness. Further, the Veteran’s service treatment records (STRs) are silent for any indication of a pre-existing psychiatric condition, and there is no post-service medical evidence indicating that his psychiatric disorders pre-existed his period of service. Accordingly, there is no clear and unmistakable evidence to rebut the presumption of soundness. Given that the presumption of soundness applies, the next element of service connection is whether there is an inservice incurrence for the Veteran’s psychiatric condition or symptoms. As noted above, the Veteran reported a variety of onset dates for his psychiatric symptoms ranging from before service, during service to post-service. His STRs show no complaints, treatment or diagnoses of a psychiatric condition. A notation from “sick call” in April 1968 indicates “no mental illness”. Moreover, a May 1969 notification of proposed discharge action specifically found “no major emotional or mental disorders indicated which would warrant medical survey.” In weighing this evidence, the Board finds that the Veteran was competent to report his observable symptoms of a psychiatric condition, such as hallucinations, etc.; however, the Board finds that his reports of the onset of his symptoms were not credible. His statements contradicted each other and the contemporaneous medical evidence of record. Accordingly, his lay statements as to the onset of his psychiatric symptoms or condition are of no probative value. As a result of this finding, the Board finds that the February 2013 private examiner’s opinion that provided a nexus between the Veteran’s current psychiatric diagnosis and his active service is of no probative value as to the onset of the Veteran’s symptoms because it is based on an inaccurate factual premise - the Veteran’s lay statements of his onset of symptoms in service - which the Board finds to be not credible. The examiner did not address the STRs and their lack of support for symptoms or a mental disorder in service. Accordingly, the most competent and credible evidence of record regarding inservice incurrence of a psychiatric condition or symptoms are the Veteran’s STRs, which fail to show that the Veteran’s schizophrenia, or any psychiatric condition manifested during the Veteran’s period of military service from February to June 1969. Thus, there is no probative evidence of an inservice event, injury or disease related to the Veteran’s psychiatric disability, and the second element of service connection is not met. In addition to a lack of inservice incurrence, the Board finds that the most probative evidence is against a finding of a nexus between the Veteran’s current psychiatric diagnoses and his active service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In assessing the nexus evidence, the Board acknowledges the positive opinion of the February 2013 private physician. However, as noted above, the Board finds this opinion inadequate for several reasons. First, the opinion failed to indicate whether a thorough review of the STRs as well as a complete review of all pertinent medical records was conducted in forming the opinion, and did not address any inconsistencies between these records and the Veteran’s statements of onset. The opinion’s failure to address those records suggests that no such review was undertaken. Second, the physician based the opinion solely on the Veteran’s own account of his onset of symptoms without addressing the other evidence of record and these lay statements have been found not credible, thus, they cannot support a nexus. Finally, the physician did not provide any rationale for the conclusions reached. Accordingly, the Board finds this private opinion to have little to no probative value. The Board instead accords much greater evidentiary weight to the November 2020 VA Examination report. The Veteran underwent VA examinations in November 2016, November 2017, and April 2020. The Board found these negative nexus opinions inadequate. Therefore, a new opinion was obtained in November 2020. The November 2020 examiner opined that there was no evidence that the Veteran’s schizophrenia was related to his military service. The examiner explained that the Veteran was not treated for any psychiatric condition during his military service. The examiner reasoned that the Veteran was examined in April 1969 and was found to have no mental illness. The first objective evidence of a psychiatric evaluation that led to any mental health diagnosis is from December 1980, which is 11 years after the Veteran was discharged from the military. During this evaluation, the physician noted that the Veteran’s symptoms dated back to 1977 with an onset of auditory hallucinations and confusion at that time. The examiner found this was consistent with the record which indicated mental health treatment services in 1977. Accordingly, the examiner determined that it was less likely than not that the Veteran’s psychiatric symptoms had their onset in service. The November 2020 examination report included a review of the record and provided a complete rationale for the opinion that was based on accurate facts and was consistent with the evidence of record. The VA examiner’s opinion was clearly based upon a comprehensive and factually accurate review of the record and considered evidence from all sources, to include the Veteran’s service treatment record, military service personnel record, and post-service medical records. The examiner also explained her reasoning for affording more weight to the medical evidence than the lay evidence. As described above, the opinion concluded that there was no evidence that the Veteran’s psychiatric symptoms were related to his active duty service. Given the above, the most probative evidence is against a finding of a nexus between the Veteran’s psychiatric condition and his period of active service. Thus, the preponderance of the evidence weighs against the claim and service connection for a psychiatric disorder, to include schizophrenia, is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.