Citation Nr: 21073333 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-31 664 DATE: December 8, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's schizophrenia became manifest to a compensable degree within one year of separation from active service in September 1976, and no intercurrent etiology of schizophrenia is shown. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384, 4.3, 4.130, Diagnostic Code 9201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1973 to September 1976, with additional National Guard service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In March 2019, the Board reopened the service connection claim and remanded the merits of the appeal for additional development, along with the intertwined TDIU claim. In November 2020, the Board denied entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, as well as entitlement to a TDIU. The Veteran appealed the November 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In June 2021, the CAVC granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of the VA, vacated the November 2020 Board decision, and remanded this matter to the Board for compliance with the JMR instructions. The Veteran and the Secretary agreed that the Board erred when it failed to provide an adequate statement of reasons and bases. Specifically, in September 2020 the Board granted an extension of time to submit evidence and argument through November 5, 2020. Moreover, the Veteran's 90-day period to submit evidence and argument following the issuance of the Board docketing letter expired on November 4, 2020. On November 4, 2020, the Veteran's attorney requested an additional 30 days to submit evidence and argument. The Board issued a decision without addressing the Veteran's November 4, 2020 Correspondence, and thus erred when it failed to discuss whether there was compliance with 38 C.F.R. § 20.1304. The Secretary and the Veteran agreed that on remand, the Veteran could submit additional evidence and argument. Moreover, on remand the Board must re-examine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case. See June 2021 JMR. Initially, the Board observes that the current version of 38 C.F.R. § 20.1304 is limited to a request for change in representation and does not contemplate the submission of additional evidence following certification of an appeal. It appears that the parties to the JMR intended for the Board to discuss the applicability of the current 38 C.F.R. § 20.1305, which governs procedures for legacy appellants (such as the Veteran) to request a change in representation, personal hearing, or submission of additional evidence following certification of an appeal to the Board. The CAVC has held that there is no need for the Board to wait 90 days when, as in this case, an appeal returns to the Board following a remand (as opposed to when an appeal is certified to the Board in the first instance). See Williams v. Wilkie, 32 Vet. App. 46 (2019). However, when an appellant has requested that the Board wait the full 90 days, the Board's failure to do so is a violation of fair process. See Bryant v. Wilkie, 33 Vet. App. 43 (2020). Here, the facts are distinguishable from those in Bryant, as in that matter the appeal had not been previously before the Board. However, the essential rules of fair process still apply, and in any event the Board had explicitly granted the Veteran an extension of time to submit evidence and argument through November 5, 2020. Thus, the Board was required to rule on that request prior to issuing a decision. On October 21, 2021, the Board granted the November 4, 2020 request for a 30-day of extension of time. This extension expired on November 20, 2021. Moreover, the Board observes that the Veteran submitted additional evidence and argument in October 2021. Thus, there has been compliance with the terms of the JMR. 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is granted. Through his attorney, the Veteran asserts that service connection for an acquired psychiatric condition is warranted based on the opinion of Dr. C.R. See October 2021 Brief. The Board agrees. As the attorney has styled the argument as seeking service connection for an acquired psychiatric condition, or alternately entitlement to service connection for schizophrenia, the Board will style the issue on appeal similarly. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Furthermore, for veteran with at least 90 days of service, certain chronic diseases, including psychosis, will be presumed related to service if they are shown as chronic in service or manifest to a degree of at least 10 percent disabling within one year of separation from active service. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309(a). Schizophrenia is a psychosis subject to presumptive service connection as a chronic disease. See 38 C.F.R. § 3.384. As directed by the terms of the JMR, the Board has re-examined the evidence of record, including the additional evidence and argument submitted by the Veteran. Initially, the Board observes that the October 2019 VA addendum opinion relied on by the November 2020 Board decision is inadequate. The examiner stated that the Veteran first sought formal treatment, with acute hospitalization, in 1983. However, the record shows that the Veteran was hospitalized for two months from August 1982 to October 1982 and was diagnosed with schizophrenia. See August 1982 VA Form 10-10. This error is critical, as the Veteran was able to continue his National Guard service after his first hospitalization, and thus this earlier hospitalization establishes that he was had some residual functional capacity notwithstanding his symptoms. However, the examiner emphasized that the Veteran's completion of a bachelor's degree following his service showed the absence of schizophrenia. Thus, the October 2019 VA medical opinion is based on inaccurate facts and it not probative. Additionally, the March 2019 Board Decision and Remand determined that the January 2016 VA medical opinion did not include an adequate rationale. See March 2019 Board Decision and Remand at 5. Thus, that opinion likewise is not probative. The Veteran submitted an addendum opinion from Dr. C.R., who opined that it is at least as likely as not that the strange behavior observed by the Veteran's sister, E.S., represented the early prodromal symptoms of schizophrenia. See September 2021 Dr. C.R. Opinion at 2. Dr. C.R. explained that the Veteran's National Guard service and attainment of a bachelor's degree following service do not show that his schizophrenia had not yet manifested. See id. at 1-2. Dr. C.R. further explained the prodromal phase of schizophrenia and acknowledged that while his first psychotic intervention was in 1982, it was preceded by changes noticed by his sister. Moreover, she explained that although the Veteran did not seek treatment until 1982, this is consistent with his lack of awareness of his condition and inability to act in his self-interest and it is more likely than not that his incapacity was a factor in the length of time between his sister's observations and his first encounter with psychiatric care. See id. at 2-3. Dr. C.R. concluded that it is more likely than not that the Veteran developed symptoms that were visible to his sister long before he was diagnosed with schizophrenia and the long progress of his prodrome show that he could have completed a degree and served in the National Guard despite having developed symptoms. Dr. C.R. is a licensed clinical psychologist and is competent to provide a medical opinion. Moreover, her opinion is well-reasoned and supported by the evidence of record. Indeed, her opinion that the early manifestations of the Veteran's schizophrenia would not preclude service in the National Guard is consistent with the Veteran's continued National Guard service following his psychiatric hospitalization in 1982. See also January 1993 Board Decision at 4 (noting two weeks of active duty for training in May 1983, notwithstanding two months of psychiatric hospitalization for schizophrenia from August 1982 to October 1982). Indeed, evidence shows that the Veteran was acting strangely during his National Guard service. See, e.g., June 1990 B.M.R. Lay Statement (noting the Veteran's strange behavior during his National Guard service). Thus, if her opinion is based on an adequate factual basis, it is probative. Accordingly, the key questions are whether Dr. C.R.'s opinion is premised on an accurate factual basis and the date of the initial manifestation of the Veteran's symptoms. The March 2019 Board Decision and Remand and November 2020 Board decision determined that the September 2018 Dr. C.R. opinion was not probative because it relied upon affidavits by E.S. and C.C. that were not credible. The Board noted that "both the Veteran's sister [E.S.] and friend [C.C.] gave vague accounts regarding the time frame in which the Veteran started exhibiting strange behavior," as E.S. did not state at what point after the Veteran returned from service she noticed changes in his behavior and as C.C. stated that the Veteran exhibited strange behavior during service but also admitted he had been drinking. See November 2020 Board Decision at 5. In her February 2018 affidavit, E.S. explained that the Veteran was acting strangely after he returned from service and began drinking, and his father would have to go out looking for him and found him without clothes or shoes. In September 2021, the Veteran submitted a supplemental affidavit by E.S. addressing the deficiencies that the Board identified in her February 2018 affidavit. She explained that she was not exactly sure of when the Veteran started acting strangely, as she did not live with her brother following his return from service. She noted that she remembered it was "around 1976 or 1977" but did not remember more because her father (who has since passed away) was in charge of the fallout from the Veteran's behavior post-service. See September 2021 E.S. Affidavit. The Board infers that while E.S. did not live with the Veteran following his return from service, she still saw him from time and time. E.S. explicitly stated that an incident when the Veteran gave his car to a stranger without reason, as well as other incidents mentioned in the February 2018 affidavit, occurred prior to the Veteran's first hospitalization. In assessing the credibility of the affidavit of E.S., the Board has informed its analysis with medical evidence specifically the opinion of Dr. C.R. See Miller v. Wilkie, 32 Vet. App. 249 (2020). In this regard, Dr. C.R. opined that is was plausible that the Veteran was able to complete a bachelor's degree and participate in the National Guard during the early prodromal stage of schizophrenia and notes that notwithstanding his degree the Veteran never had a job. The Board emphasizes that this aspect of Dr. C.R.'s opinion does not rely on the statements of E.S. and thus is not circular reasoning. See September 2021 Dr. C.R. Opinion at 2. Thus, Dr. C.R.'s opinion demonstrates that the observations reported by E.S. are consistent with the progress of the Veteran's schizophrenia. E.S. reported that the onset of the Veteran's symptoms was "around 1976 or 1977." Although there is some doubt as to whether the onset was within one year of separation, i.e., by early September 1977, the Board resolves this reasonable doubt in favor of the Veteran. Indeed, the medical evidence shows that an onset within one year of service is consistent with the presence of early prodromal schizophrenia, notwithstanding his subsequent completion of a bachelor's degree and National Guard service. The lag between onset of early prodrome and initial care is consistent with the Veteran's resistance to treatment and lack of awareness of his disease. Finally, the Board acknowledges that the examinations during the Veteran's National Guard service showed normal psychiatric evaluation as recently as February 1982, prior to his initial hospitalization for schizophrenia. However, the Board observes that this evidence does not weigh against sub-psychotic symptoms, as the evidence shows that the Veteran had been treated for acute incidents of alcohol abuse that were not reflected on his examination report. See, e.g., Addiction Services Treatment Notes (showing treatment for alcoholism throughout 1981). Thus, the evidence shows it is at least as likely as not that the Veteran's early prodromal symptoms had manifested by September 1977, within one year of service. The symptomatology noted by the Veteran's sister more closely approximates at least mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. See, e.g., February 2018 E.S. Affidavit (noting Veteran's report of difficulty sleeping after return from service). There is no evidence of intercurrent etiology. Accordingly, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, are met. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. The Veteran's attorney argues that if entitlement to service connection for an acquired psychiatric disorder is granted or remanded, the issue of entitlement to a TDIU should be remanded. See October 2021 Attorney Brief at 3. The Board agrees. The matters are REMANDED for the following action: After implementing the award of service connection for an acquired psychiatric disorder, to include schizophrenia, re-adjudicate the claim of entitlement to a TDIU. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.