Citation Nr: 21009003 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-09 325 DATE: February 18, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. FINDING OF FACT The evidence of record is in relative equipoise as to whether the Veteran’s acquired psychiatric disorder is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to March 1984. This appeal is before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes, the Veteran’s claim was previously remanded by the Board in December 2013, September 2016, March 2018, and September 2019. The Board finds substantial compliance with the September 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends his acquired psychiatric disorder had its onset in-service. 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 requires: (1) the existence of a present disability; (2) 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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Board notes, as the evidence of record has been previously stated in the four prior Board remands, the following will not be a full recitation of the record. Turning to the evidence of record, in September 2019, the Board remanded the Veteran’s claim for further development to include a VA examination and medical opinions as to the nature and etiology of any current psychiatric disorders. In January 2020, the Veteran underwent a VA mental disorders examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report determined the Veteran was diagnosed with “Schizoaffective Disorder, Bipolar Type.” Four medical opinions were associated with the examination report. First, the examiner determined it is less likely than not any psychosis manifested within one year of service and supported his opinion by citing the lack of medical records or treatment within one year of separation from service. Second, the examiner determined it is less likely than not that his current psychiatric disorders were otherwise medically related to service and supported this opinion by citing the current medical rationale as to the etiology of schizoaffective disorder which includes genetic factors. Third, the examiner determined it is less likely than not that any psychiatric disorder is related to the Veterans’ in-service mental health treatment. Specifically, the examiner opined the following: There is no evidence from a review of the medical records of diagnosis or treatment of a mental health disorder while in the service. In 1984 a mental status evaluation documented level mood, clear thought process. The first indication of Mental Health Services per the medical record was in 2002. The current diagnosis of Schizoaffective Disorder was first assigned in 2017. The reports in service in 1984 of "strange mood" and difficulty sleeping are not considered to be precursors of the current diagnosis. Although the Veteran recalled feeling paranoid while in the service, no documentation is available to provide support for that assertion. Without documentation of mental health problems prior to 2002, and service discharge in 1984, it is less likely than not. Lastly, the examiner determined it was less likely than not any of his psychiatric disorders had their onset in-service and cited to the lack of a diagnosis of a mental health problem until 2002. In October 2020, the Veteran submitted an examination report from a private psychologist, Dr. C.M. attesting that his psychiatric symptoms began during active duty service. The examiner cited to the Veteran’s March and April 1983 performance issues and the April 1983 incident where he was “rude, used obscene language and requested medications so he could not return to duty” as examples of his disorder’s onset. Moreover, Dr. C.M. cited to his negative 1983 performance review, a February 1984 mental status evaluation that he appeared anxious, and during his separation examination the same day it was noted he had lost weight and experienced trouble sleeping as further evidence of his disorder’s onset. As to a medical nexus, Dr. C.M. cited to a February 2013 letter from the Veteran’s psychiatrist, Dr. A.J., that stated his psychiatric issues date back to his military service (The Board notes that multiple attempts have been made to acquire evidence to support the opinion from Dr. A.J. but to date, no response has been received). Dr. C.M. also explicitly disagreed with the February 2016 VA examiner noting the Veteran’s in-service “erratic” behavior as evidence of the onset of a psychiatric disorder as he was within the prime age of onset for the disorder (late teens to early twenties). Ultimately, Dr. C.M. opined it as least as likely as not his psychiatric disorders began during active duty service. Dr. C.M. then wrote, “In fact, my opinions in this matter are actually much higher than that standard as my opinions are within a high degree of certainty.” After a review of the claims file and in conjunction with the applicable laws and regulations, the Board finds the evidence is in relative equipoise as to whether the Veteran’s acquired psychiatric disorder had its onset in-service. The Board acknowledges there is an equal balance of positive and negative medical evidence in the claims file. Both the VA and private medical opinion provided medical opinions supported by rationales relying on evidence. As such, considering the equal balance of positive and negative evidence, the Board finds the evidence of record is in relative equipoise as to whether his acquired psychiatric disorders are related to active duty service. When cases such as this contain an approximate balance of positive and negative evidence regarding the matter at issue, the Board must resolve reasonable doubt in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Accordingly, considering the extreme length of time and four prior Board remands that have occurred since the Veteran filed his claim and the date of this decision and upon resolution of all reasonable doubt in favor of the Veteran, the Board determines that the evidence of record is in relative equipoise as to whether his current acquired psychiatric disorders are related to active duty service. As such, the benefit of the doubt rule applies. Id. at 58. Therefore, the Veteran’s claim of service connection for an acquired psychiatric disorder is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.