Citation Nr: 21070689 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-34 614 DATE: November 24, 2021 ORDER Entitlement to an acquired psychiatric disorder, including schizoaffective disorder, depressive type, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the preponderance of the evidence is equipoise as to whether the Veteran's current acquired psychiatric disorder began during active service, and has been manifested by a continuity of symptomatology since service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are 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 September1973 to September 1977. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision. This issue was previously before the Board in May 2016, February 2020, and July 2021. The Board remanded the matter May 2016 Board decision. It returned to the Board and was denied in a February 2020 Board decision. The Veteran appealed the February 2020 Board decision to the Court of Appeals for Veterans Claims (CAVC). In April 2021, the United States Court of Appeals for Veterans Claims (Court) issued an Order granting an April 2021 Joint Motion for Partial Remand (JMPR), vacating the February 2020 Board decision, and remanding for further development according the JMPR. The Board again remanded in July 2021 based on the April 2021 JMPR. The matter now returns to the Board for appellate consideration. The Board finds substantial compliance with the Court's and Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand gives the Veteran a right to compliance with the terms of the remand). Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in the line of duty in active military, naval, or air service. 38 U.S.C. §§ 1110, 1113; 38 C.F.R. § 3.303(a). To establish service connection the following elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the medical "nexus" requirement). See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after service, 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 a matter of any issue material to the determination of the matter, the benefit of doubt will be given to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990) (holding that a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an acquired psychiatric disorder, including schizoaffective disorder, depressive type The Veteran contends that his acquired psychiatric disorder began in 1975 while in service. The evidence establishes a diagnosis of schizoaffective disorder, depressive type and alcohol use disorder. See September 2021 VA Examination Report. Therefore, the first element, existence of a current disability, is met. The evidence of record, including service treatment records (STRs), do not support that Veteran had complaints of, treatment for, or diagnosis of a psychiatric disability. Significantly, STRs, including an August 1977 report of medical examination at release from active duty, indicate the Veteran had normal psychiatric findings upon clinical evaluation; no psychiatric defects were reported or noted. The record does show various disciplinary occurrences in service, an unauthorized absence in 1974, driving under the influence in May 1976 and June 1976, and a violation for disrespectful language towards a superior senior non-commissioned officer in October 1976. See Military Personnel Records; Veteran's Reported History at June 2019 VA Examination. According to the Veteran's testimony, he claims that these in-service incidents occurred due to his feelings of depression, and that such were signs of his psychiatric disability while on active duty. Although the Veteran's STRs are negative for reports or clinical findings of a psychiatric disorder during service, the Board notes that his statements as to experiencing psychiatric symptoms while on active duty to be credible. Notably, he has consistently reported psychiatric symptoms, to include depression, while on active duty due to such factors as racial prejudice, bullying, and dealing with his drill instructor. In this regard, a November 1999 note, create in connection with the Veteran's psychiatric hospitalization, reflects the Veteran's report of having homicidal thoughts about a staff sergeant in the military. Giving the Veteran the benefit of the doubt, the Board finds credible his report of the in-service psychiatric symptoms. Therefore, the second element of service connection is met. The Veteran underwent a VA examination for his acquired psychiatric disorder in September 2021 which provided a negative nexus opinion regarding service connection. The examiner completed a review of the entire record and a comprehensive in-person examination of the Veteran. The examiner reviewed the Veteran's lay statements. The examiner noted that the Veteran's medical records document that, in January 2019, years after the service, the Veteran reported that his depression began in service. The examiner noted the Veteran's reported in-service problems, including performance problems, alcohol problems, and problems that resulted in police intervention (getting maced by the police and a driving while intoxicated charge). The examiner found no notes to support his claims of onset in-service. The examiner noted there was no documentation of mental health treatment in service and the Veteran was not evaluated for a mental health condition prior to separation from the military. The examiner noted the Veteran's reported belief that he received treatment for mental health symptoms at Camp LeJeune, but highlighted that documentation to support that was not found in the record. The examiner noted that the Veteran first sought treatment for his psychiatric disorder in 1993 at age 38, nearly 20 years after separation from service. While the September 2021 examiner's opinion reflects review of the evidence, to include the Veteran's STRs and lay statements, the Board does not find this evidence to be the most probative. Specifically, the examiner's opinion does not adequately address the Veteran's contention that his in-service disciplinary problems were markers of his psychiatric disorder and instead relies heavily upon the lack of documented psychiatric symptoms or treatment in service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an opinion based on the absence of treatment records without consideration of a veteran's competent reports is inadequate. Thus, while the September 2021 has probative value, it does not outweigh the other competent evidence of record. When weighing the evidence of record, the Board finds at most the evidence for and against the Veteran's claim is in relative equipoise. Resolving doubt in the Veteran's favor, the Board concludes competent medical evidence diagnosing the Veteran with an acquired psychiatric disorder as well as the competent and credible lay statements regarding in-service and post-service symptoms, all support a finding the Veteran's psychiatric disorder began in service and has persisted since that time. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, see Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (noting the benefit of the doubt rule is a unique standard of proof, and the Nation, in recognition of our debt to our Veterans, "has taken upon itself the risk of error" in awarding such benefits). Therefore, service connection for the Veteran's acquired psychiatric disorder, to include schizophrenia, depressive type, is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.