Citation Nr: 21072818 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 10-21 483 DATE: December 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, and schizoaffective disorder, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's currently diagnosed acquired psychiatric disability was incurred in his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1951 to May 1953. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, inter alia, denied service connection for PTSD. This case has a long procedural history. In April 2011, the Board recharacterized the Veteran's service connection claim for PTSD more broadly as a claim of service connection for an acquired psychiatric disorder, to include PTSD, depression, and schizoaffective disorder. The Board determined that due to this broadening of the issue, a previously denied service connection claim for schizoaffective disorder was not a new and material evidence claim, but rather an original claim for service connection, and did not address whether new and material evidence had been received to reopen the claim. The Board remanded the matter for further evidentiary development. In April 2013, the Board separated the claim into 2 separate claims, namely entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder, to include depression and schizoaffective disorder, and denied both. The Veteran appealed the April 2013 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for remand (JMR). In October 2013, the Court granted the parties' motion, vacated the April 2013 Board decision and remanded the matter for actions consistent with the JMR. In July 2014 and October 2017, the Board remanded the matter for further evidentiary development. In October 2020, the Board denied the Veteran's claims for service connection for PTSD and an acquired psychiatric disorder, to include depression and schizoaffective disorder. The Veteran appealed the October 2020 Board decision to the Court. While the matter was pending before the Court, the Veteran and VA's General Counsel filed a JMR. In July 2021, the Court granted the parties' motion, vacated the October 2020 Board decision and remanded the matter for actions consistent with the JMR. In light of the evidence of record, the Board has recharacterized the issues of entitlement to service connection for PTSD and entitlement to service connection for an acquired psychiatric disorder, to include depression and schizoaffective disorder, as a claim of service connection for an acquired psychiatric disorder, to include PTSD, depression, and schizoaffective disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In light of the decision below, no prejudice to the Veteran has resulted from the Board's recharacterization of the issues. Bernard v. Brown, 4 Vet. App. 384 (1993) (holding that before the Board may address a matter that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, and an opportunity to address the question at a hearing, and whether the claimant has been prejudiced by any denials of those opportunities). The Board notes that some of the Veteran's service treatment records (STRs) have not been obtained. VA undertook efforts to obtain the missing treatment records but was unsuccessful. See 38 C.F.R. § 3.159(c)(2). In January 2020 correspondence, VA notified the Veteran of efforts to obtain the missing treatment records and of its determination that the records were unavailable and further attempts to obtain them would be futile. 38 C.F.R. § 3.159(e). In these circumstances, the duty to assist does not require additional action on the part of VA. However, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Entitlement to service connection for an acquired psychiatric disability, to include PTSD, depression, and schizoaffective disorder, is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain specifically enumerated chronic diseases, including psychoses, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his acquired psychiatric disability is due to his military service. See June 2008 VA Form 21-4138 Statement in Support of Claim received in July and December 2008. The Veteran's available STRs are silent for complaints, observation, or treatment regarding a psychiatric disability. The post-service record on appeal indicates that the Veteran was injured in January 1968 while working as a police officer in the Commonwealth of Puerto Rico and was thereafter placed on permanent total disability. A supplementary disability report dated in June 1970 indicated that the Veteran was attacked in January 1968 consistent with his functions as a police officer and received blows on his head, neck, back, and waist. See June 1970 Supplementary Disability Report. In November 1970 correspondence, a private psychiatrist, Dr. G.S.O., indicated that the Veteran had been in psychiatric treatment since March 1969 and had been diagnosed with schizophrenic reaction of the paranoid type. The psychiatrist also noted that the Veteran had been retired from the police force for this illness and that there was no doubt that he could not currently assume the responsibilities of work. See November 1970 correspondence from Dr. G.S.O. The Veteran was afforded a VA examination in February 1971. The examiner noted a diagnosis of schizophrenia, undifferentiated, chronic. The examiner also noted that the Veteran worked after separation from the military as a police officer until 1969 "when he became so nervous and confused, that he had to see a psychiatrist." On mental status examination, the examiner noted that the Veteran appeared confused and was obviously under the influence of tranquilizing medication. The Veteran appeared withdrawn and seclusive. Content of thought revolved around ideas of reference and persecution. It was noted that the Veteran admitted to auditory hallucinatory experiences, suspicious thoughts about activities in his environment, and episodes of being mad and agitated. He was disoriented to time. Memory in both spheres was poor. Mental grasp and intellectual capacities were impaired. Insight was missing, and judgment was defective. An August 2007 VA treatment record noted a diagnosis of schizoaffective disorder, depressive type and PTSD by history. It was noted that the Veteran had a history of blunt trauma to the head, neck, back, and eye area in January 1968. It was also noted that the Veteran reported witnessing the death of a young man by automatic machine fire in the 1950s. See August 2007 Geropsychiatric Evaluation. A January 2008 VAMC Problem List indicated a July 2007 diagnosis of depression. See January 2008 Psychiatric Progress Note. In a June 2008 stressor statement, the Veteran reported that while serving in Germany he witnessed a soldier get shot and killed during combat training. He also reported witnessing a soldier accidentally shoot and kill three fellow soldiers when his machine gun accidentally discharged. See June 2008 VA Form 21-4138 Statement in Support of Claim received in July and December 2008. In August 2010 correspondence, a private psychiatrist, Dr. N.P.M., noted a diagnosis of schizoaffective disorder. He noted the Veteran's reports of witnessing 3 soldiers shot and killed during active duty when a weapon accidentally discharged. The Veteran also reported witnessing the death of another soldier who was accidentally shot during a training exercise. The psychiatrist noted the Veteran's complaints of low mood, irritability, nightmares, flashbacks, poor sleep, recurring intrusive thoughts of traumatic experience, hypervigilance, social isolation, poor social functioning, increased startle reflex, and auditory hallucination. The Veteran's prognosis was noted to be poor. The psychiatrist indicated that the Veteran suffered trauma from his experience and developed his emotional condition as a result. See August 2010 correspondence from Dr. N.P.M. received in September 2010. A February 2011 VA treatment record noted the Veteran's reports of running away from home and around the neighborhood. He reported feeling persecuted and hearing "murmurs and steps." The Veteran described persecutory delusions of military content. See February 2011 Psychiatric Progress Note. A June 2011 VA treatment record noted diagnoses of schizoaffective disorder, cognitive disorder, NOS, and PTSD. See June 2011 Psychiatry-1010M Form. The Veteran was afforded a VA examination in July 2011. The Veteran reported that while he was stationed in Germany, a soldier was killed near him during active training. He also reported witnessing several soldiers injured when a rifle fired accidentally. After examination of the Veteran and review of the claims file, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner diagnosed the Veteran with schizoaffective disorder and concluded that it was as least as likely as not related to service. In providing the rationale for that conclusion, the examiner opined in pertinent part, After careful review of C-file and medical records, it was found that: there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to the military service[;] there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment during the military service[;] there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment within one year after discharge from the military service. [V]eteran sought psychiatric care in 1969, and retired from his job in 1970 due to his mental disorder. Longitudinal follow up treatment documentation indicates decline in veteran's global assessment of functioning; however, stressors identified and documented were chronic illness, family stressors, chronic medical conditions and problems related to social environment. A medical advisory opinion was obtained in July 2012. The examiner again determined that the Veteran did not meet the DSM-IV diagnostic criteria for PTSD. Rather, the examiner concluded that the Veteran had a diagnosis of schizoaffective disorder which was due to the trauma he sustained when he was a police officer. The examiner further opined that the Veteran's psychiatric disability was not related to active service as he did not have any problems with mental illness, continued to hold gainful employment, and did not report any problems in his social life until his injuries in 1968. See July 2012 Medical Expert Opinion received in August 2012. A January 2017 VAMC Problem List indicated diagnoses of schizoaffective disorder and chronic PTSD. See January 2017 VAMC Psychiatry Note Problem List. In October 2021 correspondence, a private psychologist, Dr. C.R., noted a current diagnosis of schizoaffective disorder. She noted the Veteran's reports of being subjected to two traumatic events while in the military, namely seeing another soldier shot and killed in Germany during a training exercise and seeing fellow soldiers injured when a rifle accidentally discharged. She indicated that one of the Veteran's primary psychotic symptoms was paranoia, which was exacerbated by intrusive memories and delusional thoughts regarding his military experience. The psychologist rendered a positive etiological opinion regarding the Veteran's psychiatric disability, opining in pertinent part, [The Veteran's] experience of paranoia is exacerbated by intrusive memories and delusional thoughts regarding his military experience because they heighten his fear and apprehension and strengthen his need to be hypervigilant in checking doors and windows. Interestingly, [the Veteran] doesn't report intrusive memories from his experiences as a police officer, even though he was attacked and sustained a head injury that left him disabled. The record indicates that his military memories are unique in their persistence. To summarize, [the Veteran] suffers from Schizoaffective Disorder and has a history of trauma both as a police officer and as a soldier. His trauma history as likely as not increased his potential for delusional thought. His intrusive memories of military trauma exist in parallel with his psychotic symptoms, reinforcing his paranoia. Although he might incorporate other life experiences into his psychotic process, it is as likely as not that his military experience uniquely increased his suffering associated with Schizoaffective Disorder. After a review of the record, the Board has determined that the evidence of record is at least in equipoise as to whether the Veteran's current acquired psychiatric disability, diagnosed as schizoaffective disorder, was incurred during his military service. With respect to the Veteran's reported in-service traumatic events, the Board finds no adequate basis to reject the competent lay statements. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); see also Evans v. West, 12 Vet. App. 22, 26 (1998). The circumstantial evidence of record, including the Veteran's military occupational specialty (MOS) of infantry, is consistent with the reported events. Although the evidence is not unequivocal, the Board nevertheless finds that the evidence is at least in equipoise with respect to the question of an in-service stressful event. Regarding whether the Veteran has a current acquired psychiatric disability, or has PTSD diagnosed in accordance with 38 C.F.R. § 4.125, the Board notes the Veteran has been diagnosed with various mental health conditions during the course of this claim, to include schizoaffective disorder, depression, cognitive disorder, NOS, and PTSD. Based on the evidence of record, it is difficult to make a clear finding as to the Veteran's current diagnosis because the medical professionals who have offered opinions in this case, as well as treating physicians, appear to be in disagreement as to the current diagnosis. Regardless, what is clear is that the Veteran does currently have an acquired psychiatric disability with active symptomatology. As such, the Board finds that the preponderance of the evidence establishes the Veteran does have a current acquired psychiatric disability, regardless of the label it is assigned. 38 C.F.R. §§ 3.303(a). The question before the Board then, is whether there is a link between the Veteran's current acquired psychiatric disability and the above discussed stressors. Considering all the evidence of record, the Board finds the evidence is at least in equipoise on the question of whether the Veteran's current acquired psychiatric disability or disabilities are at least as likely as not related to his active service, particularly in-service incidents he has described. In that regard, the Board assigns great probative weight to the October 2021 opinion from Dr. C.R., as the opinion was based on a thorough review of the Veteran's claims file and provided a detailed rationale for the conclusions reached. The Board finds that the August 2010 opinion from Dr. N.P.M., although lacking extensive reasoning, when read as a whole and in the context of the evidence of record, is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The July 2011 VA examination is entitled to low probative weight, as the examiner's opinion and rationale were contradictory and internally inconsistent. The July 2012 medical advisory opinion is similarly entitled to low probative weight as the examiner did not adequately address multiple notations in the Veteran's VA treatment records noting persecutory delusions of military content and intrusive thoughts due to past military experiences. As the evidence is in equipoise, the Board grants the Veteran the benefit of the doubt, and finds it is at least as likely as not he has an acquired psychiatric disability that is related to service. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board concludes that the criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.