Citation Nr: 21075407 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-24 411 DATE: December 20, 2021 ORDER Service connection for psychiatric disability, diagnosed as schizoaffective and bipolar disorder, is granted. FINDING OF FACT The Veteran's acquired psychiatric disorder had its onset during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1981 to February 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing; the transcript is associated with the claims file. Subsequently, the Veterans Law Judge who conducted the hearing retired and the Veteran was provided notice in August 2021 of the Veterans Law Judge's retirement. The notice letter also informed the Veteran that he has 30 days from the date of the notice to request a new hearing; otherwise, it would be assumed that the Veteran did not want another hearing. To date, the Veteran has not responded to the August 2021 notice letter. This matter was previously remanded by the Board in March 2020 for additional development. Service Connection Entitlement to service connection for an acquired psychiatric disorder. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran contends that his psychiatric disorder began during service and psychiatric symptoms have been recurrent since discharge. Specifically, the Veteran stated he tried to stab his sergeant with knife during service and was committed to a mental hospital for two weeks in January 1982. After release from the hospital, he was honorably discharged from service; however, he reports that his psychiatric symptoms persisted. See January 2020, Hearing transcript; May 1995, Notice of disagreement (NOD). After review of the record, the Board finds that the criteria for service connection an acquired psychiatric disorder, diagnosed as schizoaffective and bipolar disorder, have been met. Service treatment records (STRs) indicate the Veteran only speaks Spanish and has difficulty understanding English. In January 1982, a clinician diagnosed manic depressive psychosis and mixed personality disorder after the Veteran was admitted to a psychiatric hospital for trying to stab his drill sergeant. While explaining his family's psychiatric history, the Veteran mentioned hospitalization at age 7 for a psychiatric evaluation and being seen until 18 for a psychiatric disorder but stated his mother and father did not have any psychiatric problems. In February 1982, an interpreter was used to interview the Veteran before he was discharged from the psychiatric hospital. However, there is no indication that an interpreter was used at the time the Veteran was admitted to the psychiatric hospital in January 1982 which indicates the Veteran received psychiatric treatment from ages 7 to 18. See STRs dated October 1981, January 1982, and February 1982. Post-service medical records include diagnoses of schizoaffective disorder and bipolar disorder with explosive disorder. See October 2016, Private treatment record; March 2014, VA examination; April 1999, Social Security Administration (SSA) record. On multiple occasions, the Veteran's treatment providers mention the Veteran's poor command of the English language and need for an interpreter. See SSA records dated November 1994 and July 2006; VA treatment records dated February 1995 and July 2003; March 1995, VA examination. In 2003 and 2016, the Veteran's treatment providers indicate the Veteran's longstanding psychiatric problems date back to his in-service hospitalization for a psychiatric disorder. See October 2016, Private treatment record; July 2003, VA treatment record. During an examination in 1994, the Veteran's niece was present to interpret for the Veteran. She stated the Veteran received psychiatric care from ages 8 to 16 at an outpatient clinic in Puerto Rico prior to being hospitalized in the Army in 1982 and gave vague details concerning the Veteran's psychiatric symptoms since discharge from service. See November 1994, SSA record. In 2014 and again in 2016, the Veteran's niece wrote letters stating she misrepresented the Veteran's medical history during the 1994 examination by passing off her father's mental health history as the Veteran's (her uncle). See Correspondences dated October 2014 and July 2016. The Veteran explained that his niece was consumed with grief from her father's murder at the time of the 1994 examination and started speaking about her own father's mental health history instead of the Veteran's. As further support, the Veteran signed an affidavit attesting that he never received psychiatric treatment as a child, provided medical records from Puerto Rico Medical Center indicating that he does not have any treatment records, and submitted medical records of his older brother which include mental health treatment. See Private treatment records dated July 2016 and January 2019 (for L.R.M., the Veteran's brother); September 2020, Correspondence; December 2014, NOD. The Board notes that the Veteran and his brother's names are identical except the Veteran's brother's middle initial is "R." Additionally, the Puerto Rico Medical Center records for the Veteran's brother include a middle initial of "R," social security number, date of birth, and age, all of which do not match the Veteran's. Indeed, there are records that state L.R.M. was 20 years old in August 1968, when the Veteran was only 7 years of age, and in 1973, L.R.M. complained of nervousness and aggressive behavior towards his wife and familythe Veteran was only 12 years old and unmarried at that time. See Private treatment records dated April 1970, May 1973, March 1975. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time, or where clear and unmistakable evidence or medical judgment establishes that an injury or disease preexisted service. 38 U.S.C. § 1111, 38 C.F.R. § 3.304(b). When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Based on the evidence of record, the Board finds that the Veteran is presumed sound with respect to his psychiatric disability. The Board notes the record does not contain any evidence of a psychiatric disorder being noted upon entry; accordingly, the Veteran is presumed sound in this regard. See October 1981, Entrance exam. The Board further finds that this presumption has not been rebutted by clear and unmistakable evidence to the contrary. Specifically, the Board acknowledges the January 1982 STR and November 1994 SSA record noting the Veteran's hospitalization from ages 7 or 8 to 16 or 18 for a psychiatric disorder; however, the evidence of record demonstrates the Veteran spoke little to no English at the time of both examinations; there was no mention of an interpreter being provided to the Veteran during the January 1982 intake examination and explanation of his family medical history; and his niece (serving as the Veteran's interpreter in 1994) admitted to passing off her father's (the Veteran's older brother's) psychiatric history for the Veteran's because she was grieving her father's death and not thinking clearly. Further, the Veteran's brother's first and last name are the same as the Veteran's, his brother had psychiatric problems as demonstrated by his medical records, and a record from Puerto Rico Medical Center conclusively shows the Veteran has never been treated at that institution. Accordingly, the evidence of record does not clearly and unmistakably demonstrate that the Veteran had a preexisting psychiatric disorder, and the presumption of soundness has not been rebutted. At the Board hearing, the Veteran testified that his psychiatric problems began during service and have been continuous since discharge. He further stated that he sought mental health treatment a few months after discharge from service but could not continue with treatment because he could not maintain employment due to his psychiatric disorder and did not have medical insurance. He also recounted his history of going to jail 14 times because he could not control his anger or physical aggression. See January 2020, Hearing transcript. In light of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is warranted. The Board notes the Veteran is presumed sound upon entry into service, the presumption was not rebutted by clear and unmistakable evidence, and there was an in-service diagnosis of a psychiatric disorder. The Board also notes the competent and credible lay evidence, including the Veteran's testimony, that psychiatric symptoms started during service and have been recurrent since discharge from service. Jandreau v. Nicholson, 492 F.33d 1372, 1376-77 (Fed. Cir. 2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that which he or she has personal knowledge). Thus, the Board concludes the Veteran's acquired psychiatric disorder, diagnosed as schizoaffective and bipolar disorder, had its onset during active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The Board acknowledges the March 2014, May 2020, and June 2021 negative nexus opinions of record but finds they are inadequate as they all found the Veteran was treated for a preexisting psychiatric disorder from ages 7 or 8 to16 but failed to address the Puerto Rico Medical Center records indicating that the Veteran's brother, and not the Veteran, was treated for psychiatric problems prior to 1981. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). Resolving all reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder is therefore warranted because the onset of the condition was coincident with the Veteran's active duty service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Straughn, Shavonne 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.