Citation Nr: 21007452 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 14-00 684 DATE: February 9, 2021 ORDER Entitlement to service connection for schizoaffective disorder, bipolar type is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his schizoaffective disorder, bipolar type, is at least as likely as not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for schizoaffective disorder, bipolar type have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1968 to August 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. In April 2016, the Board determined that new and material evidence was not submitted to reopen the Veteran’s service connection claim for bipolar disorder, among other mental health conditions. The Veteran appealed the Board’s April 2016 decision. In June 2017, the Court of Appeals for Veterans Claims (Court) found that the Board did not provide an adequate statement of reasons and bases for finding the appellant had not submitted new and material evidence sufficient to reopen his mental disorder claim. In October 2017, the Veteran expressed his intent to have this appeal remanded so that the RO can consider additional evidence that he submitted. In March 2018, the Board reopened the Veteran’s service connection claim for bipolar disorder and remanded the claim for additional development. A VA opinion was obtained in August 2018. The RO issued a December 2018 supplemental statement of the case which continued the denial. In June 2019, the Board denied the Veteran’s claim for entitlement to service connection claim for bipolar disorder, among other mental health conditions. The Veteran’s attorney representative at the time failed to make any argument in regard to the adequacy of the August 2018 VA opinion relied upon by the Board. The Veteran appealed the Board’s June 2019 decision to the Court, and in a June 2020 Joint Motion for Remand (JMR), the parties moved the Court to vacate the Board’s decision on the basis of the adequacy of the August 2018 VA opinion relied upon by the Board. The Court granted the JMR in a June 2020 Order. The case has been returned to the Board for readjudication. 1. Entitlement to service connection for bipolar disorder, paranoid schizophrenia and mixed personality disorder (claimed as neurosis, posttraumatic stress disorder, stress, pressure, and abuse) The Veteran contends that he has an acquired psychiatric disability due to racial discrimination while on active duty. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. June 1984 private treatment records show the Veteran was admitted to a psychiatric hospital and diagnosed with schizophrenia, paranoid type and mixed personality disorder. June 1984 VA treatment records noted the Veteran had grandiose delusions. VA treatment records from September 1984 and November 1984 state the Veteran experienced less anxiety and pressure as of the date of the examination, however he exhibited delusions, as well as grandiose and persecuting thinking. The Veteran’s private treatment records from June 1989 to October 1989 show the Veteran was hospitalized for seven days. He experienced grandiose delusions and paranoid ideations. The Veteran was diagnosed with bipolar disorder. The December 1989 VA examiner evaluated the Veteran and diagnosed the Veteran with bipolar disorder, manic type. The February 1992 VA examiner evaluated the Veteran and diagnosed him with bipolar affective disorder and noted the Veteran was admitted for treatment in February 1992. February 1992 private treatment records show the Veteran had a history of schizophrenia and was hospitalized for a little more than a month. He was diagnosed with bipolar affective disorder, manic. VA treatment records from February 2010 to June 2010, show the Veteran experienced sleep disturbance, psychomotor agitation, depression, and suicidal ideation. He was diagnosed with schizoaffective disorder, bipolar type, depression anxiety, and PTSD. VA treatment records from April 2016 to July 2016 note the Veteran has an unspecified personality disorder. He began taking medication to control his anxiety, agitation, irritability, frustration, grandiose delusional ideation, and sleep disturbance. In August 2016, the Veteran denied having depression, anxiety, and changes in his sleep habits. The August 2018 VA examiner evaluated the Veteran and determined that, while it is unusual to arrive at an opinion of no current diagnosis, the Veteran did not have any DSM-IV or DSM-V diagnosis, to include bipolar, paranoid schizophrenia, mixed personality, neurosis, or PTSD. The VA examiner stated the Veteran denied all significant mental health symptoms, denied any clinical significance related to mental health concerns, and denied clinically significant criteria for nearly all mental health diagnostic considerations. The VA examiner noted the Veteran reported anger regarding cultural injustice and systemic racism that he has experienced throughout his life. The examiner stated that this type of racism does not meet the life/death criteria for PTSD criteria A because the Veteran denied experiencing life/death events related to the racism. The Veteran also denied PTSD criteria B, D, and E. His endorsement of PTSD criteria C appears to primarily relate to normal avoidance of unpleasant memories and reminders and his symptoms did not meet PTSD criteria F and G regarding clinical significance. The VA examiner considered possible mild unspecified trauma and stressor related disorder or mild depression diagnosis regarding racism, but the Veteran denied current symptoms and clinical significance. The VA examiner’s opinion is that the Veteran’s anger and feelings of injustice are normal and to be expected reactions to cultural racism. The VA examiner found the Veteran’s medical records from July 1970 showing his prescription of Valium and upset stomach, insomnia, and tremors do not have a plausible link to the Veteran’s current mental health which does not meet the criteria for any current DSM-IV or DSM-V diagnosis based on the Veteran’s denial of current symptoms and clinical significance. The VA examiner considered the Veteran’s medical history of bipolar and schizoaffective disorder. The Veteran denied typical sleep patterns associated with bipolar, such as staying up all night or several nights in a row engaging in manic behaviors. The VA examiner found that although the Veteran presents as grandiose and hard to track at times and reports creative interests, he denies any recent manic experiences and denies any current symptoms of clinical significance. The Veteran also denied any hallucinations or delusions which would be commonly associated with any schizophrenia spectrum disorders. There is also no indication of typical Cluster A, B, or C personality disorders of any current clinical significance. The VA examiner stated it is possible that the Veteran met the criteria in the past for the prior diagnosis and they are now resolved and/or the current prescription for “mood and sleep” is working well and keeping all current symptoms below clinical threshold for diagnosis. The Veteran was afforded an independent medical evaluation in September 2020. Dr. P.L. concluded the Veteran has a current diagnosis of schizoaffective disorder, bipolar type, severe, chronic, recurrent. Dr. P.L opined that it is as least as likely as not that the Veteran’s current acquired psychiatric disorder started while he was on active duty. Dr. P.L. reasoned that the Veteran had an issue of sleeping problems, described as not sleeping for two or three days, and indicates the sleep impairment was as likely as not the first indication of his mental health problems. The Veteran was given Valium, not for pain, but because of his agitated state manifested in his hyperventilation and tremors. The examiner stated that while his not sleeping could be related to pain, in light of his future diagnosis of schizoaffective disorder, it is certainly at least as likely as not the behavioral signs noted in July 1970 were the initiation of the severe mental illness that has repeatedly been treated for at least 35 years of his life. It is unacceptable to conclude this chronic illness has simply resolved. The examiner explained the Veteran’s 14-year gap in records from 1970 to 1984. The examiner reasoned that knowing the course of the Veteran’s life in the next 35 years, it is as likely as not his behavior and function was marked by chaos, distress, and dysfunction prior to his first hospitalization in 1984. Resolving reasonable doubt in favor of the Veteran, service connection for schizoaffective disorder, bipolar type is granted. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.