Citation Nr: 21023398 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-60 855 DATE: April 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, diagnosed as schizoaffective disorder, is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left wrist disability is remanded. FINDING OF FACT The evidence supports a finding that the Veteran has a current psychiatric disorder, diagnosed as schizoaffective disorder, that is related to service. CONCLUSION OF LAW The criteria for the establishment of service connection for an acquired psychiatric disorder, diagnosed as schizoaffective disorder, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5102, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from March 1985 to September 1994. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veteran’s Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with this determination, and the present appeal ensued. The Veteran subsequently testified at a virtual hearing in February 2021 held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. 1. Entitlement to service connection for a psychiatric disability; diagnosed as schizoaffective disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 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 requires 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. 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 psychoses, 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). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time support a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”)). Analysis In the instant case, the evidence is at least in equipoise as to whether the Veteran’s currently-diagnosed psychosis had its onset during her active military service. Pertinent evidence of record includes service treatment records, private treatment records, VA treatment records, and lay statements from the Veteran. The Veteran has received various diagnoses for her psychiatric symptoms since she separated from service. The underlying symptoms, both during and after service, likely stem from her current diagnosis, given most recently by her private provider, of schizoaffective disorder. The Board notes that both schizophrenia and schizoaffective disorder are both listed as psychoses under 38 C.F.R. § 3.384. During a February 2021 hearing the Veteran described the stressors she experienced in service, specifically in Panama and Saudi Arabia. In Panama in December 1989, the Veteran felt abandoned by her unit while participating in monitoring activities, and spent an evening hiding under a bed while hearing tanks and gunfire outside the home she was in alone. While hiding under the bed she began to hear a voice speaking to her. The Veteran also experienced a stressor due to fear when she was stationed in Saudi Arabia in 1991. Her MOS was intelligence analyst and that required that she deliver maps via an airplane throughout Saudi Arabia. On one occasion she experienced missiles being fired at the airplane she was in. The Veteran contends that she initially sought treatment for her mental health in the 1990s and has been dealing with persistent psychological issues since active duty. The Veteran’s private treatment records indicate she received treatment around 2004 for her psychological issues, but as with the records from the 1990s, these records are not associated with the Veteran’s electronic file. Although records are missing, a remand to obtain such opinions would only result in unnecessary delay in light of the favorable disposition of the Board’s decision. Soyini v. Derwinski, 1 Vet. App. 540 (1991). Post-service treatment records included in the Veteran’s electronic file contain diagnoses and treatment records beginning in 2012 for bipolar disorder and major depression. In 2013 her private treatment records contain diagnoses of bipolar disorder and generalized anxiety disorder. The Veteran’s private treatment records conclude that her symptoms are most associated with schizoaffective disorder, with a long-standing history of a single voice auditory hallucination. The Veteran reported to her provider in January 2016 that along with the single voice auditory hallucination, she was experiencing referential paranoid feelings, and had been sleeping with a knife for a long time. She continued to explain that the voice she hears is the same as she first experienced in Panama in December 1989. In January 2017 the Veteran had a psychiatry evaluation with the VA. The provider documented the Veteran’s reports that her symptoms stem from her service in the military. The VA provider also noted that the Veteran first sought treatment for her mental health in 1995. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault, are substantive rules which are the equivalent of VA regulations and must be considered. More recently, Federal Circuit observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting “medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated.” Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton, 12 Vet. App. at 280 (rejecting the requirement that “something more than medical nexus evidence is required for ‘credible supporting evidence’” in personal-assault cases). In Acevedo v. Shinseki, 25 Vet. App. 286 (2012), the Court held that hostile criminal actions, such as the harassment alleged by a Veteran, are also contemplated under the provisions of 38 C.F.R. § 3.304(f)(5). The Board notes that the Veteran, on multiple occasions, has additionally reported that she experienced military sexual trauma in service. The Veteran met with a VA mental health social worker in August and December 2016. The Veteran described her twenty-five-year history of psychiatric symptoms that she continues to experience today. The Veteran also reported to the social worker the experience of stressors in Panama and Saudi Arabia, and instances of sexual harassment in both places. The Veteran described sexual assaults by a supervisor in Panama and by a supervisor in Saudi Arabia. The Veteran is competent to report the onset and continuity of her psychiatric symptoms. See Layno, supra (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). Throughout the appeal period, the Veteran has reported that her psychiatric problems began during service, that she sought treatment within a year after she was discharged, and that she was eventually received her current psychiatric diagnosis in 2016. The Board finds no reason to doubt the credibility of her statements concerning the onset and continuity of her psychiatric problems, and her statements are further supported by the evidence of record, including the December 2016 and January 2017 VA medical records, and her private medical records. Accordingly, because some of the Veteran’s stressors include personal assaults that have been corroborated at least to some degree by medical statements from VA clinicians, a private opinion supports a relationship between her schizoaffective disorder and service, and the credible and competent lay evidence of record otherwise demonstrates an onset of psychiatric problems in service, and a continuity of symptomatology thereafter, service connection for a psychiatric disorder, to include schizoaffective disorder, is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. 2. Entitlement to service connection for a left wrist disability is remanded. A remand is required to afford the Veteran a VA medical examination to determine the etiology of the Veteran’s left wrist and back disabilities. The Veteran has not been provided an examination for either claim during the appeal period. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding the first element, the Veteran has complained of persistent back pain since service, and recently, in March 2021, she was diagnosed with multilevel degenerative disc disease and mild multilevel degenerative joint disease. While no diagnosis has been rendered regarding the Veteran’s claimed left wrist disability, the Veteran’s left wrist pain is documented within her medical records. To this point, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and that “pain alone can serve as a functional impairment and therefore qualify as a disability. Therefore, element one of McClendon has been met for both of the Veteran’s claims. The Veteran has consistently contended that her back disability and left wrist disability were incurred in service. The Veteran’s service treatment records contain references to injuries of both her back and her left wrist. Service treatment records from June 1987 note that the Veteran fell off a ladder and experience pain, and she was injured in a car accident in April 1992. Left wrist pain is documented in her service treatment records in both November 1991 as well as January 1992. Therefore, element two of McClendon, has been met. As the Veteran has consistently maintained that her current disabilities stem from her in-service incidents and have continued to cause her pain since that time, element three of McClendon, is satisfied. Finally, as there is insufficient medical evidence contained in the Veteran’s file to make a decision on her claims, the must be remanded to provide the Veteran with VA medical examinations for both her back disability and her left wrist disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. The AOJ must obtain and associate with the file all updated records of VA treatment pertaining to the Veteran. 2. Thereafter, the AOJ must schedule the Veteran for an examination with an appropriate VA clinician to determine the nature and etiology of her back disability and left wrist disability. The examiner is requested to review all pertinent records associated with the file, including the Veteran’s service treatment records, post-service medical records, and lay statements. 3. Thereafter, the examiner should address the following: (a.) Provide an opinion addressing whether the Veteran’s back disability, currently diagnosed as multilevel degenerative disc disease and mild multilevel degenerative joint disease is at least as likely as not (i.e., 50 percent probability or greater) related to service. (b.) Provide an opinion addressing whether the Veteran’s left wrist pain is a manifestation of a disability, which is at least as likely as not (i.e., 50 percent probability or greater) related to service. (c.) If the Veteran’s reported back pain or left wrist pain is not found to be a manifestation of any disability (service-connected or otherwise), please describe the functional impairment resulting from such pain and whether it is at least as likely as not (i.e., 50 percent probability or greater) related to service. In doing so, the examiner is requested, to the extent possible, to describe any and all functional impairment stemming from the Veteran’s back or left wrist pain, on her ability to stand, walk, run, stoop, lift objects, bend, and maintain balance In addressing the above, the examiner is on notice that the Veteran is competent and credible to report experiencing pain and such evidence may not be discounted for the sole reason that it is not reflected in the medical evidence. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definite opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.