Citation Nr: 21072190 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-04 646 DATE: December 2, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is granted. FINDING OF FACT Affording the Veteran with the benefit of the doubt, his schizophrenia began during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1999 to July 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board denied the Veteran's claim for service connection for schizophrenia, among other claims, in a December 2018 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a November 2019 memorandum decision, vacating and remanding the part of the Board's decision that denied the psychiatric disability claim. Following the Court's remand, the Board remanded the matter in June 2020 for additional development including a nexus opinion that adequately addressed the date of initial onset and etiology of the Veteran's psychiatric disability. The matter returned to the Board in October 2020 at which time the scope of the claim was recharacterized under Clemons v. Shinseki, 23 Vet. App. 1, (2009) to include any acquired psychiatric disorder and the amended claim was remanded for a supplemental VA medical opinion. This matter was most recently before the Board in February 2021 when it was remanded once again for additional development to include obtaining any updated VA treatment records for the period from December 2016 to the present, requesting the Veteran complete a VA Form 21-4142 to authorize VA to obtain any updated private treatment records, and obtaining a new medical opinion (and examination if deemed necessary). The record indicates that the RO received a completed Form 21-4142 for private treatment records and the VA requested those records in March 2021, updated VA treatment records were added to the claims file in October 2021, an October 2021 VA medical opinion was obtained, and the RO issued an October 2021 supplemental statement of the case (SSOC). The record includes a July 2021 denial for release of requested records by the private provider based on a failure to include a release or authorization with the records request. The denial noted two additional denials in March 2021. Notwithstanding VA's attempt to obtain the private treatment records, the Veteran was informed in a June 2021 correspondence that even though VA has requested the identified information, it was his responsibility to ensure that VA receives it (except for any evidence kept by the VA, military, or any other federal government agency). The Board notes that VA's duty to assist in the development of a claim is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Rather, the Veteran has an obligation to assist in the adjudication of his claim. "If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, supra. at 195. The Board finds that there was substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. The Veteran contends, to include in his October 2013 Notice of Disagreement (NOD) and his January 2017 VA Form 9, that he is entitled to service connection for an acquired psychiatric disorder to include schizophrenia and depression because of his experiences during active duty. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges that the Veteran has a current diagnosis of schizophrenia, to include as documented in the November 2020 VA mental disorders examination report. Thus, the only question for the Board is whether the current acquired psychiatric disability onset during or is otherwise related to his active military service. A thorough review of the Veteran's service treatment records (STRs) does not reveal complaints of, treatment for, or a diagnosis of an acquired psychiatric disorder, to include schizophrenia and depression. Post service VA treatment records include an April 2013 mental health crisis intervention record wherein the Veteran reported receiving treatment for depression and schizophrenia since 2003. A subsequent local coordinator follow-up noted the Veteran received treatment from a private provider. An April 2013 VA homeless program record noted the Veteran reported he is currently receiving Social Security Disability (SSD) for his depression and schizophrenia. Post service private treatment records include a December 2001 treatment record provided by the Social Security Administration wherein the Veteran reported hearing voices prior to service. A November 2002 behavioral assessment noted a provisional diagnosis of schizophrenia and psychotic, NOS (not otherwise specified). The same record noted the Veteran was dealing with moderate depression. A January 2003 record noted treatment for schizophrenia. An August 2003 private psychiatric evaluation noted a diagnosis of schizoaffective disorder. A January 2005 progress record that noted an assessment of schizophrenia and substance abuse. A May 2005 progress record that noted an assessment of schizophrenia, knee pain, and substance abuse. A May 2005 medical evaluation noted diagnoses of schizophrenia, depression, and substance abuse. An August 2008 treatment letter confirmed residential treatment for chronic paranoid schizophrenia and polysubstance abuse; he was discharged in November 2008. An August 2009 treatment record included an assessment of depressive disorder. A Separate August 2009 treatment record noted a diagnosis of depression. A March 2011 treatment record noted the Veteran is prescribed psychiatric medication. A July 2011 emergency room admission record noted past medical history is significant for depression and schizophrenia. An October 2013 private treatment record noted the Veteran was complaining about moderate recurrent major depression with onset noted in April 2004. An April 2014 treatment record noted the Veteran's past medical history includes a diagnosis of chronic depressive disorder and opiod abuse in remission. A September 2014 emergency department record noted an overdose of psychiatric medications. A September 2014 treatment letter noted the Veteran was being referred to a separate private provider for behavioral health treatment. A September 2019 correspondence from the private treatment provider noted a release is necessary to obtain additional information. The Board also notes August 2008, January 2009, April 2014, and March 2016 treatment records wherein the Veteran denied psychiatric symptoms. The claims file includes a December 2016 VA mental disorders examination wherein the examiner confirmed a diagnosis of schizophrenia. The examiner noted the Veteran was diagnosed and treated for a psychotic disorder since December 2001 and there is no clear and unmistakable evidence of the existence of a mental disorder prior the service. The examiner opined that the Veteran's schizophrenia was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted the Veteran's symptoms and mental disorder did not appear until December 2001, more than 2 years after separation from service. Thus, his schizophrenia was not caused by his military service. Schizophrenia is not caused by an event or circumstance but is related to an imbalance of neurotransmitters in the brain and has a strong family component. There is nothing that occurred during the Veteran's military service that caused his schizophrenia to develop. After the Court's remand, VA obtained a July 2020 medical opinion to address the date of initial onset and etiology of any psychiatric disability including the Veteran's retrospective reports of hearing voices prior to service and "schizing out" during service. As to the question of identified psychiatric disabilities and onset, the examiner noted a confirmed diagnosis of schizophrenia with approximate onset in December 2001, according to records. Private treatment records make one reference to the Veteran reporting he was in service several months until he had a psychotic break. However, the examiner noted there are no details of what this reported psychotic break entailed and this report is not supported by the STRs or military personnel records. The December 2001 evaluation record includes complaints of depression, paranoia, a report of occasionally seeing shadows, being uncomfortable in public places, and difficulty sleeping. The record also documents the Veteran's "feeling" that he had problems in 1999. During the evaluation, the Veteran reported getting paranoid and hearing multiple voices talking about him before service. The examiner noted that these experiences are not noted in the STRs and there is no other indication in the record indicating exactly when symptoms accelerated or became problematic or turned into an actual psychiatric disorder, except that the Veteran presented for care in December 2001. Thus, the evidence of record indicates onset of actual schizophrenia disorder/disability to be December 2001. The examiner concluded that while there is a possibility some symptoms predated December 2001, it is not possible to determine when all the symptoms necessary for diagnosis of schizophrenia manifested without resorting to pure speculation. Addressing the Veteran's retrospective statements of hearing voices and "schizing out," the examiner noted the Veteran's STRs including entrance and separation examinations are negative for any signs of mental illness. The examiner noted that after the Veteran was told he would need to be reclassed and repeat training, he began to act out in ways to get out of the military including failing uniform inspection, falling asleep in class, sleeping instead of performing duties and not reporting as instructed. Military personnel records show his report of these behaviors was due to being "upset about being washed back." The examiner noted that these behaviors are defiant but not psychotic. In his October 2013 NOD, the Veteran reported that he was having nightmares (not reported to any provider in any medical record), losing sleep, crying, and "schizing out." The examiner noted there is no indication in the NOD what the Veteran mean's by "schizing out" but the other behaviors were reported. The examiner noted that while it is possible the Veteran felt sad or depressed when yelled at by sergeants, there is no indication that he met criteria for a mental disorder during service. Further, the examiner noted that there is no clear, credible, tangible, or documented evidence of a psychotic process or mental disorder in service. The Veteran also reported hearing voices before active service. His family, social, academic, and work history prior to service is negative for signs or symptoms of a mental disorder, so the Veteran's statement alone, made while being evaluated and treated for a psychotic disorder are insufficient to show any clear and unmistakable evidence of the existence of a mental disorder prior to service. The examiner explained that a person with schizophrenia has an altered mental state and often cannot tell reality from fantasy, fact from fiction, truth from delusion or confabulation; they also often confuse dates and times due to their disorder and have difficulty thinking clearly and linearly. A person suffering schizophrenia will often have great difficulty recalling and recounting a history that matches their records, because of their non-linear thought process they use to relay information. They often add information to their history or tell historical information out of order, or even seem to make up information that is contradicted by their records. This is all part of the nature of the illness. Thus, the December 2001 report of voices is not a true indication of any psychiatric illness prior to service. No other record, including those associated with the claim for SSD indicate psychotic symptoms before or during service. The examiner also addressed if the Veteran's schizophrenia, considering the Veteran's statements regarding onset of symptoms after stressful interactions with his superiors, is directly due to service. The examiner indicated that there is no evidence from records, reported functioning, or behavior prior to service that the Veteran had a mental disorder or disability prior to service or even during active service. The Veteran's schizophrenia did not manifest until around December 2001, thus the examiner opined it is less likely than not due to his active service or any events he experienced during active service. As a rationale, the examiner noted the Veteran's report of onset of symptoms in response to sergeants screaming at him could have been a feeling of sadness or adjustment reaction with depression due to the temporary stress of being yelled at. The examiner noted that this is neither a mental disorder nor a chronic disability. The Veteran is likely confusing feeling sad or upset about his military performance and being yelled at, with the later development of a psychotic process and in his non-linear thinking is linking the two circumstances and assuming they are etiologically related despite the lack of clinical or documented evidence linking his reported reaction during service to the later development of schizophrenia. Schizophrenia has a strong genetic component and is a result of imbalance of chemicals in the brain and is not due to experiences of being yelled at or failing tests. After the October 2020 Board decision recharacterized the claim to include service connection for any acquired psychiatric disorder to include schizophrenia and depression, the Board remanded the claim for a more thorough medical opinion. The Board observed the July 2020 examiner provided an extensive analysis in support of her finding that the Veteran's schizophrenia did not manifest until approximately December 2001. However, the Board observed the examiner noted depression two times but failed to address if that condition had its onset during or is otherwise related to the Veteran's active service. VA subsequently obtained a November 2020 medical opinion wherein the examiner confirmed a diagnosis of schizophrenia. However, the February 2021 Board remand found the attached medical opinion inadequate because it was unclear if the examiner had considered recent treatment records documenting treatment for depression. The Board need not further discuss this opinion here. VA obtained a new medical opinion dated October 2021. A separate examiner opined that the Veteran's depression was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted that following a review of the record, there is no objective evidence of related complaints or treatment having occurred during service. Furthermore, schizophrenia is the only currently diagnosed mental health condition as indicated on the November 2020 examination. The examiner also addressed the Veteran's report that he started having nightmares and sleep trouble, crying spells, and episodes of schizing out after being yelled by superiors during service. Again, the examiner noted that there is no evidence of depression during service. As a rationale, the examiner noted the above-mentioned descriptions are consistent with schizophrenia. The examiner noted, since there is no established diagnosis of depression, those symptoms should, in fact, be attributed to schizophrenia. There is no objective evidence of related complaints or treatment having occurred during service. Furthermore, the only currently diagnosed mental health condition is schizophrenia as indicated on the November 2020 examination. The record does not reflect other opinions addressing schizophrenia or depression. The Board considered the assertions regarding etiology made by the Veteran in his October 2013 NOD and January 2017 VA Form 9. The Veteran is competent to observe lay symptoms, but the record does not establish that he has the training or credentials to provide a competent opinion as to etiology, diagnosis, or the onset date of a psychiatric disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions are thus of markedly lower probative value than, and are outweighed by, the VA examiners as noted above. However, based on a thorough review of the claims file, the Board finds that the evidence of record is at least in equipoise as to whether the Veteran's schizophrenia is related to active service. The Board is mindful of the December 2016 examination and medical opinion and the July 2020 medical opinion; however, these opinions only serve to place the medical evidence in a state of relative equipoise with the October 2021 medical opinion noted above. Thus, resolving all doubt in the Veteran's favor, the Board finds that the record is in relative equipoise on all material elements of the claim for service connection of schizophrenia. The benefit of the doubt mandate is triggered when the evidence reaches a stage of equipoise. There is competent medical evidence both in favor of and against the claim. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Accordingly, service connection for an acquired psychiatric disorder is warranted. The claim is granted. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.