Citation Nr: 21069814 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-05 899 DATE: November 19, 2021 ORDER Entitlement to service connection for schizoaffective disorder, also claimed as bipolar disorder, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. There is clear and unmistakable evidence that schizoaffective disorder pre-existed the Veteran's military service, and the disorder was not permanently worsened by active service. 2. The Veteran's service-connected disability alone does not prevent her from obtaining or maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for schizoaffective disorder, also claimed as bipolar disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 5110(a), 5107(b); 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2004 to June 2005. These matters were originally before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, these matters were remanded for further development to include obtaining an addendum opinion. The Board observes that it granted service connection for posttraumatic stress disorder (PTSD). Subsequent to the Board decision, a January 2020 rating decision granted service connection and assigned a noncompensable rating. In February 2020 correspondence, the Veteran requested a higher-level review regarding the rating and effective date. In a March 2020 letter, the RO informed the Veteran that it was unable to process her request at that time because she had to remove her issue from the Legacy appeal system in order for them to be processed under the Appeals Management Act (AMA) system. In March 2020, the Board issued a decision that denied both of the Veteran's claims. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Office of General Counsel for the VA and the Veteran's representative before the Court (hereinafter the parties) filed a Joint Motion for Remand (Joint Motion) that was granted by the Court in June 2021. The March 2020 Board decision was vacated, and the case was returned to the Board for further consideration in accordance with the terms of the Joint Motion. The parties agree the Board failed to discuss whether the Veteran was given the required time to opt into the AMA. Indeed, they found that VA offered the Veteran the option to opt into AMA and explained that she had 60 days to do so. They noted, however, the Board issued its decision on March 20, 2020, less than 60 days from the date of the supplemental statement of the case (SSOC). The parties agree that the Board's issuance of its decision without addressing whether the Veteran was afforded the required amount of time to opt into AMA in light of the January 31, 2020, opt-in notification warrants remand. In light of the findings, the Board will address this now. The Board observes that in February 2020, the RO contacted the Veteran to inquire whether she had received the SSOC. The Veteran indicated that she did receive her copy of the SSOC and that she had no additional evidence she wanted to submit. She told the RO to certify her appeal back to the Board. As the Veteran has indicated she had no additional evidence to submit, and that she wished for her appeal to be re-certified back to the Board, the Board finds she had no intent to opt into the AMA regarding these issues; and addressing the appeal did not violate her due process. Subsequent to the June 2021 Joint Motion, the Veteran was sent a June 2021 letter informing her she has 90 days from the date of the letter in order to submit any additional evidence. The Board notes that she has not submitted any additional evidence. 1. Entitlement to service connection for schizoaffective disorder, also claimed as bipolar disorder Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). When a pre-existing condition is not noted on a veteran's entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As further explained in Horn v. Shinseki: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In determining whether service connection is warranted for a disability, 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 v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that she had bipolar disorder before service that worsened during service. See August 2013VA Form 21-526 EZ. Her service entrance examination did not report a history of treatment for mental health. Because a mental health disability was not noted at entrance, the Veteran is entitled to a presumption of soundness. 38 C.F.R. § 3.304(b). Ordinarily, in such cases, the presumption of soundness would be applicable and evidence establishing that the disease or injury manifested in service would be deemed to satisfy the in-service incurrence element of a service connection claim. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). The presumption of soundness may be rebutted if there is clear and unmistakable evidence demonstrating the injury or disease existed prior to service and it was not aggravated by such service. Horn, 25 Vet. App. at 235. The evidence supports that the Veteran has a current disability of schizoaffective disorder, bipolar type. See October 2014 VA examination. The evidence also supports the Veteran was sexually assaulted during service, that she attempted to overdose on Tylenol a few days after the sexual assault occurred, and desired inpatient treatment secondary to the overdose. See July 2004 service treatment record. During October 2014 VA examination, the examiner opined that the evidence shows the Veteran's schizoaffective disorder preexisted service. This, combined with the Veteran's statements that she had a preexisting psychiatric disorder, is probative evidence that her schizoaffective disorder preexisted service. Having reviewed the record, the Board finds that there is clear and unmistakable evidence the Veteran's psychiatric disability existed prior to service. Thus, the pivotal question in this appeal is whether there is clear and unmistakable evidence demonstrating that her schizoaffective disorder, which existed prior to service, was not aggravated by service. See Horn, 25 Vet. App. 231, 234-35 (holding that neither the presumption of aggravation prescribed in 38 U.S.C. § 1153 nor the regulations implementing it in 38 C.F.R. § 3.306 are applicable when considering the aggravation prong of the presumption of soundness). If there is clear and unmistakable evidence demonstrating the pre-existing schizoaffective disorder was not aggravated by service, then service connection must be denied. See Gilbert, 26 Vet. App. at 55. In the January 2019 remand, the Board observed that no VA examiner had opined on whether the Veteran's military service, to include the in-service sexual assault, aggravated her schizoaffective disorder. Pursuant to the January 2019 Board remand, the Veteran was examined in December 2019. The examiner opined that the Veteran's schizoaffective disorder was less likely related to or aggravated by military service. She reasoned that the Veteran's course of her schizophrenic illness appears to be rather typical given that she has frequently been noncompliant with prescribed medication and has abused various substances that would contribute to deterioration. The examiner indicated that there is no scientific literature available to her knowledge that would support the idea that sexual assault can be the etiology for a schizophrenic disorder. She indicated that the Veteran clearly had serious psychiatric difficulties and a poor adjustment prior to the military likely representing the early symptoms of schizophrenia coupled with an abusive and chaotic upbringing. She concluded that it was her opinion that the Veteran's current schizophrenia was neither incurred in service, nor aggravated by her military service. The Board recognizes here that the Veteran is competent to provide evidence regarding the lay observable symptoms of her schizoaffective disorder. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). She is not competent to render a medical diagnosis or opinion on such a complex medical question as the aggravation of her schizoaffective disorder beyond its natural progression, however. The Board notes that such would require training in the workings of the mind. As such, the Board places no weight on her opinion in this regard. With respect to whether the pre-existing schizoaffective disorder was aggravated by service, the record does not show that the Veteran had any psychiatric events during active dutyother than her sexual assault, which has been found to be unrelated to her schizoaffective disorder. Again, the Veteran is in receipt of service connection for PTSD due to this in-service sexual trauma. The most probative evidence weighs against a finding that her schizoaffective disorder was aggravated beyond its natural progression, including the fact that the Veteran showed no symptoms upon separation. The December 2019 VA examiner also opined that her schizoaffective disorder was not aggravated beyond its natural progression during active-duty service at it progressed in its natural course. Based on the totality of the probative competent evidence, the record clearly and unmistakably demonstrates that the Veteran's schizoaffective disorder was not aggravated beyond natural progression by service. 38 C.F.R. § 3.304(b). As the evidence of record clearly and unmistakably shows that schizoaffective disorder pre-existed service and was not aggravated by service, service connection is not warranted. The Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim for service connection claim for schizoaffective disorder, the doctrine is not for application. 2. Entitlement to a TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's sole service-connected disability is posttraumatic stress disorder (PTSD), rated 0 percent. As such, she does not meet the schedular rating threshold for the grant of a TDIU. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation because of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Board concludes that referral for an extraschedular TDIU is not warranted in this case. Consideration has been given to the fact that the Veteran has a history of psychiatric disability that interferes with her daily activities; however, the Veteran has skills, as shown by her prior work experience, that the Board finds would not preclude her ability to secure and follow gainful employment. During October 2014 VA examination, the examiner opined, after examining the Veteran and reviewing the claims file, all the Veteran's occupational and social impairment is due to non-service-related schizoaffective disorder. Further, in a December 2019 VA examination report, the examiner indicated that the Veteran exhibited total occupational impairment because of schizophrenia/affective disorder. Although the Veteran is shown to exhibit total occupational impairment, such is shown to be due to non-service-connected schizoaffective disability. Indeed, the examiner indicated that the Veteran did not meet the criteria for PTSD. Referral of the Veteran's TDIU claim for extraschedular consideration is not warranted. As the preponderance of the evidence is against a finding of unemployability due to a service-connected disability, the "benefit of the doubt" rule does not apply, and the Board must deny the claim. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.