Citation Nr: 21075223 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 12-16 232 DATE: December 17, 2021 ORDER Entitlement to service connection for schizophrenia is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability other than schizophrenia, to include posttraumatic stress disorder (PTSD) (also claimed as mental deficiency and nerves) is remanded. FINDING OF FACT Schizophrenia did not manifest in service, is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for service connection for schizophrenia have not been met. 38 U.S.C. §§ 101 (24), 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.1 (d), 3.6(a), 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1972 to July 1974. In January and April 2014, the Veteran testified on separate occasions during hearings before a Decision Review Officer (DRO) at the RO. Transcripts of those hearings are of record. In November 2014, the Veteran testified during a Board video conference hearing before a Veterans Law Judge (VLJ) at the RO. A transcript of the hearing, however, is not of record as the recording of that hearing was deemed inaudible. In a December 2014 letter, the Board notified the Veteran and his attorney that a transcript of the November 2014 hearing could not be produced due to audio malfunction heard throughout the recorded testimony and offered the Veteran the option to appear at another hearing. The letter further indicated that if no response to the Boards letter was received within 30 days from the date of the letter, the Board would assume that no additional hearing was desired. In May 2015, the Board found that as no response had been received, that the Veteran did not desire an additional hearing. Furthermore, in May 2015, the Board remanded the claims on appeal for further development and adjudication. The Board finds that there was substantial compliance with its May 2015 remand directives as pertains to the claim herein decided. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). Furthermore, in November 2021, the Board notified the Veteran that the VLJ that conducted his prior hearing had retired and offered the Veteran the opportunity for a new hearing. However, as no response was received, the Board assumes that the Veteran does not want an additional hearing and any hearing request has been withdrawn. Service Connection The Veteran contends that he suffers from schizophrenia as a result of his active-duty service. Specifically, the Veteran contends that his schizophrenia began during service with his reported "nerves." Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The claimant bears the burden of presenting and supporting his or her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The-benefit-of-the-doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102. Entitlement to service connection for schizophrenia is denied. As previously noted, the Veteran contends that his current schizophrenia was caused by or began during his active-duty service. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of schizophrenia or other mental health disabilities or symptoms. Furthermore, at the Veteran's June 1974 discharge examination, his mental health was noted as normal. However, post-service treatment records reflect the Veteran's reports of and treatment for nervousness or "nerves." See 1974 VA treatment note, July and February 1980 SSA records, December 1982 medical records, February 1980 Compensation and Pension Application, March 1989 Compensation and Pension Application, July 2009 VA Form 214138, December 2008 VA Primary Care Note. In 1980 the Veteran suffered a psychotic break and was hospitalized. The Veteran was subsequently diagnosed with schizophrenia. Furthermore, VA examinations in June 1993, March 2012, June 2014, and September 2016 note that the Veteran was diagnosed with a psychotic disorder or schizophrenia. In June 1993 the Veteran underwent a VA General Medical examination. The examiner found that the Veteran was a poor historian and that it was "impossible to obtain a good history from him." The examiner diagnosed the Veteran with chronic paranoid schizophrenia. During the March 2012 VA Mental Disorders examination, the examiner only discussed the Veteran's potential PTSD. The Veteran reported various in-service stressors to include: (1) the mysterious death of a friend unwitnessed by the Veteran, (2) an incident where he or someone in his unit had been medevacked, (3) his participation in a "hardship tour" during which he was threatened by an individual but did not feel he would be harmed, and (4) an incident involving money stolen from him while he was asleep. The examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD, and found that his psychotic symptoms were accounted for by a diagnosis of psychotic disorder NOS. In the May 2015 decision and remand, the Board found the March 2012 examination and opinion inadequate as the examiner failed to fully consider all of the Veteran's alleged in-service stressors to include his alleged witnessing of a suicide of a fellow service member. Furthermore, as the examiner did not discuss the Veteran's diagnosed schizophrenia or provide an etiological opinion for such, it is not probative in this current matter. In June 2014 the Veteran underwent an additional VA Mental Disorders examination to address any mental disorder other than PTSD. The examiner diagnosed the Veteran with schizophrenia, in partial remission on medications. The examiner concluded that it was less likely than not that such mental disorder was incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the rationale that there was no evidence in the record of psychotic symptoms during the Veterans active-duty service. He noted that headaches are not known to be etiologically related to schizophrenia and "nervousness" is a common experience in daily life. The presence of nervousness is not predictive of the later development of a psychotic disorder. In the May 2015 decision and remand, the Board found the June 2014 examination and opinion inadequate as the examiner failed to review the entirety of the Veteran's records which contained the Veteran's SSA records. In September 2016 the Veteran underwent an additional VA Mental Disorders examination. The examiner diagnosed the Veteran with schizophrenia, multiple episodes, currently in partial remission. The examiner noted that the Veteran had no other diagnosed mental disorder. The Veteran reported that while he was stationed in Korea he was under a lot of stress and was prescribed medication for "nerves." The examiner found that the Veteran's schizophrenia less likely than not had its onset during service, was not manifested to a compensable degree within one year of discharge or was otherwise medically related to his active-duty service. The examiner provided the rationale that there was no record of the Veteran complaining of any psychiatric issues to include "nerves" during service. There is also no record of the Veteran retrospectively reporting to mental health providers that he experienced psychosis during service. Rather the examiner found that the Veteran has historically given vague, unelaborated reports of "nerves." However, psychiatric status upon discharge was classified as normal. Furthermore, the examiner noted that it was reported that the Veteran had endorsed nervousness, headaches, inability to sleep, and sensitivity to sound in 1974. However, the examiner noted that he could only find evidence of the Veteran reporting headaches and nervousness within 1 year of his discharge. Other symptoms (e.g. report of sleep difficulty and hearing things) were not referenced until 1980 and afterward. Vague complaints of nervousness and headaches, without any provided elaboration or context, could have reflected a variety of possible conditions to include general tension/stress or perhaps an underlying medical condition. They cannot be considered a proxy or general reference to a more serious psychiatric disorder such as schizophrenia. There is no documented evidence of more serious symptoms such as bizarre thinking/behavior during the time period that covers 1974/1975. The examiner found none of the hallmark characteristics of a serious psychiatric disorder until 1980, when the Veteran had a "nervous breakdown." While the Veteran's wife reported some suspicious thinking approximately two years prior to his breakdown, the examiner found that the Veteran had been dealing with postmilitary stressors (e.g. job stress, divorce from his first wife, possible infidelity of his second wife/girlfriend) in the years leading up to his breakdown. Therefore, the examiner found that the onset of the Veteran's schizophrenia could not be directly attributed to his military service/stressors. The examiner further noted that schizophrenia has a strong genetic component and that it typically first manifests in late teens and early adulthood. Therefore, the examiner stated that it is possible that the Veteran's schizophrenia would have emerged even in the absence of his life stressors. The Board notes that the Veteran has a current diagnosis of schizophrenia. Therefore, the first element of service connection is satisfied. The Board must then consider the different theories of entitlement to service connection. First, the Board has considered whether service connection is warranted on a presumptive basis. For the purposes of 38 C.F.R. § 3.309 (a), the term "psychosis" includes diagnoses of brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. In this case, the Veteran has been diagnosed with a psychiatric disorder deemed a psychosis for presumptive service connection purposes. However, the Board finds no credible lay or medical evidence that the Veteran demonstrated psychotic behavior in service or within one year from service discharge. As such, presumptive service connection is not warranted for psychosis as a chronic disease under 38 C.F.R. § 3.309 (a). The Board further observes that the Veteran, while reporting symptomology in service and thereafter, the clinical evidence of record does not document post-service complaints or treatments of a psychiatric disorder until 1980, approximately 6 years after service discharge. This period without evidence of treatment tends to weigh against a finding of in-service onset. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Next the Board has considered direct service connection. Although the Veteran reported nervousness in 1974, there was no indication of any treatment or diagnosis of such during his service. In addition, the September 2016 VA examiner specifically found that the Veteran's current schizophrenia was not incurred in or caused by service. The Board notes that there are no contrary medical opinions of record. The Board notes that the Veteran has contended that his current schizophrenia began in or is directly related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's schizophrenia and any instance of his service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, while the Veteran is competent to describe the current manifestations of his schizophrenia and to describe his alleged in-service symptoms, the Board accords such statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the diagnosis of schizophrenia requires the administration and interpretation of specialized psychiatric testing and evaluation. There is no indication that the Veteran possesses the requisite medical knowledge to perform such testing or interpret their results. Furthermore, the Veteran has offered only conclusory statements regarding the relationship between his purported in-service psychiatric symptoms and his current schizophrenia. Therefore, the Board finds that schizophrenia first manifested many years after service and is not shown to be causally or etiologically related to any disease, injury, or incident during service. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for schizophrenia. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for an acquired psychiatric disability other than schizophrenia, to include PTSD (also claimed as mental deficiency and nerves) is remanded. The Veteran contends that he suffers from an acquired psychiatric disability, other than schizophrenia, to include PTSD, as a result of his service. Specifically, he alleges that he suffered various in-service stressors to include a mysterious unwitnessed death of a friend, an incident where he or someone in his unit had been medevacked, his participation in a "hardship tour" during which he was threatened by an individual but did not feel he would be harmed, an incident involving money stolen from him while he was asleep, and his alleged witnessing of a suicide of a service member. The Veteran's service treatment records are silent for any complaints, treatment or diagnosis of an acquired psychiatric disorder or symptoms of such. Furthermore, while the Veteran's post-service treatment records reflect that he has been diagnosed with schizophrenia, they are silent as to any other acquired psychiatric diagnoses to include PTSD. In March 2012 the Veteran underwent a VA Mental Disorders examination. The examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD, and found that his psychotic symptoms were accounted for by a diagnosis of psychotic disorder NOS. During the May 2015 decision and remand, the Board found the March 2012 examination and opinion inadequate as the examiner failed to fully consider all of the Veteran's alleged in-service stressors to include his alleged witnessing of a suicide of a fellow service member. Therefore, the Board ordered that an addendum opinion be obtained. In September 2016 the Veteran underwent an additional VA mental health examination. The examiner found that the Veteran did not meet the DSM-5 diagnostic criteria for PTSD. He opined that the Veteran's history of postmilitary symptoms were best accounted for by a diagnosis of schizophrenia. He noted that the Veteran did not meet the criteria for PTSD during the examination. He stated that the Veteran did not endorse having characteristic features of PTSD to include persistent reexperiencing of his reported military traumas or trauma-related avoidance behaviors. Such symptoms were also not prominently mentioned in the mental health notes that span nearly 30 years. Over time, the Veteran's primary problems have been episodic disorganized behavior/thinking and hallucinatory experiences. Schizophrenia has been his predominant diagnosis by past and present mental health providers. Unfortunately, the Board finds that an additional addendum opinion is necessary as the September 2016 examiner used the DSM-5 diagnostic criteria instead of the DSM-IV. The Board notes that service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304 (f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). [Parenthetically, the Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-5). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. Since the Veteran's claim was received prior to that date, in July 2014, the DSM-IV is applicable.]. Therefore, on remand an addendum opinion which considers the Veteran's claim for PTSD under the DSM-IV must be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination conducted by a psychologist or psychiatrist in order to determine the current nature and etiology of his claimed acquired psychiatric disorder, other than schizophrenia, to include PTSD. The record should be made available to and be reviewed by the examiner. Following a review of the record, the reviewing examiner is asked to furnish an opinion with respect to the following questions: a) Identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV) criteria. (In this regard, while the DSM-5 is being used in clinical settings, for cases certified to the Board prior to August 4, 2014 (such as the Veteran's), the diagnosis of PTSD must be in accordance with the DSM-IV. Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference DSM-5)). b) The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of the Veteran's claimed in-service stressors. If the examiner does not find that the Veteran meets the DSM-IV's criteria for PTSD, he or she should explain why in detail. c) If an acquired psychiatric disorder, other than schizophrenia and PTSD is diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such disorder is related to the Veteran's military service. In offering any opinion, the examiner should consider the full record, to include the Veteran's lay statements regarding the onset of his acquired psychiatric disorder and continuity of symptomatology, as well as the medical records. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.