Citation Nr: 21027032 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-27 543 DATE: May 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder, including schizophrenia and schizoaffective disorder bipolar type, began during active service; is otherwise related to an in-service injury or disease; or is secondary to the Veteran's service-connected glomerulonephritis. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, including schizophrenia and schizoaffective disorder bipolar type, and including as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A March 1972 rating decision denied entitlement to service connection for schizophrenia. Subsequently VA received relevant service personnel records. An October 2018 Board decision reconsidered the Veteran's claim pursuant to the service department records exception under 38 C.F.R. § 3.156 (c). The October 2018 Board decision also recharacterized the claim from one for schizophrenia to one for an acquired psychiatric disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's claim was remanded for further development in October 2018 and May 2020. The Board finds substantial compliance with the May 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309 (a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as a disease of the nervous system, including sensorineural hearing loss, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303 (a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for an acquired psychiatric disorder. The Veteran seeks service connection for an acquired psychiatric disorder to include diagnoses of schizophrenia, as well as schizoaffective disorder, bipolar type. He contends that his psychiatric disability began in service and has continued to the present. Alternatively, he asserts that his psychiatric disability is secondary to his service connected glomerulonephritis. 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, or whether it is at least as likely as not related to a service-connected disability. The Board concludes that, while the Veteran has a current psychiatric disability, the preponderance of the evidence weighs against finding that the Veteran's acquired psychiatric disability began during service or is otherwise related to an in-service injury, event, or disease. Further, the evidence does not reflect that the Veteran demonstrated a continuity of symptomatology relative to his psychiatric disability since active duty. Moreover, there is no finding that an acquired psychiatric disability is related in any way to the Veteran's service-connected glomerulonephritis. In that regard, the Board notes that while the Veteran's service treatment records (STRs) and military personnel records (MPRs) reflect a troubled service, they do not show that the Veteran had any complaints or manifestation of a psychiatric disorder during active duty. The Veteran's February 1968 enlistment examination and November 1969 separation examination are silent for any psychiatric condition. Notably the Veteran's STRs indicated that in July 1969 and October 1969 mental hygiene evaluations were requested by the Veteran's commanding officer which determined that no psychiatric disease or personality disorder was present. While the STRs confirmed that the Veteran was hospitalized extensively for body swelling due to nephritis, there are no STRs or MPRs reflecting complaints of or treatment for a psychiatric condition. The Veteran's MPRs reflected a substantial history of AWOLS, confinements, and court marshals. Specifically, the Veteran was absent without leave (AWOL) on 5 occasions for a total period of 47 days and confined on 2 occasions for a total period of 63 days. A November 1969 command statement in the Veteran's MPRs cited behavioral symptomatology including passive-aggressive actions, negative attitude toward the service, and refusing to soldier. Commanding officers noted that they had difficulty keeping the Veteran in the Medical Holding Company (MHC) and documented that while receiving medical treatment for nephritis the Veteran went AWOL. He was also found carrying a knife while in the MHC. He was subsequently discharged under AR 635-212 separation code 46 A, which is defined as a separation due to unsuitability, apathy, defective attitudes, and inability to extend effort constructively. An original application for disability benefits submitted in January 1971 sought service connection only for the Veteran's kidney condition. At a March 1971 VA General Medical Examination, the Veteran stated that he had a nervous condition recently diagnosed by a private psychiatrist. VA accepted the Veteran's statement as an informal claim for entitlement to service connection for a nervous condition. The Veteran submitted a private evaluation report dated March 1971 by Dr. D.W.H. of the Mental Health Center of Norfolk, Virginia, who privately evaluated the Veteran. Symptoms were poor social adjustment and confusion. Dr. H diagnosed the Veteran's disability as schizophrenia, chronic undifferentiated type and opined that the Veteran was not unemployable. No medical history was offered, and no etiology opinion was provided. In April 1971, the Veteran was evaluated by VA and an extensive medical history was documented. The VA examiner concurred with Dr. D.W.H. that the Veteran was having a schizophrenic reaction but questioned whether it was a chronic undifferentiated type or a paranoid type. The April 1971 VA examiner took an extensive medical history. The Veteran reported that he was hospitalized for 11 months during active duty for nephritis and a nervous condition but felt he was not treated properly. By way of history he was assigned as a cook in the mess hall at Fort Gordon, Georgia where he functioned by doing considerably heavy drinking. In December 1968 he was admitted to the Fort Gordon Specialized Treatment Center for nephritis because he had considerable body swelling. The Veteran stated that the hospitalization was particularly difficult for him because he got nervous, uptight and would go into rages during which he threatened to strike his commander. The Veteran indicated that he was seen by a psychiatrist on two occasions and given medication which helped him control his feelings, but he never received enough medication or psychiatric care. Post discharge, the Veteran remained in Georgia and was employed for 2 months as a stock clerk but had difficulty with his superiors and foreman and relied on unemployment compensation. The Veteran began treatment with a psychiatrist in January 1971 when he returned to Virginia to live with family. He endorsed symptoms of hypersexuality, auditory hallucinations and anger. The Veteran reported that he was considering an inpatient hospitalization to try to help get his head together. In July 2015, the Veteran's treating VA staff psychiatrist wrote a statement in support of the Veteran's claim. The psychiatrist indicated that the previous diagnosis of schizophrenia was a misdiagnosis. She noted that based on her evaluation of the Veteran, the appropriate diagnosis was schizoaffective disorder bipolar type. The VA examiner also indicated that the condition began during active military service; however, the opinion was based on the erroneous belief that the Veteran was already service - connected for schizophrenia. The VA examiner opined that just as his mis - diagnosed schizophrenia is service connected the Veteran's schizoaffective disorder bipolar type is service connected. The same VA examiner authored an additional opinion in May 2016 confirming that in her professional opinion the psychiatric evaluation while in the military which concluded that the Veteran had schizophrenia when in fact he had schizoaffective disorder, bipolar type should result in service connection for the latter. The VA examiner stated that service connection based on a schizophrenia diagnosis should not preclude service connection based upon a corrected diagnosis. The Veteran was most recently examined in person by VA in August 2020. The diagnosis was personality disorder unspecified which resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior, self care and conversation. Specific symptoms noted were difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances including work or a work like setting. The VA examiner opined that it was less likely than not that an acquired psychiatric disorder was incurred in or caused by active duty. The examiner's rationale was that there was no diagnosis for the Veteran's claimed condition of an acquired psychiatric disorder because there are no findings, signs and/or symptoms to support a diagnosis. Rather, the Veteran's symptom profile is best characterized as an unspecified personality disorder established in his youth secondary to his childhood environment. The August 2020 examiner also opined that the Veteran's claimed psychiatric disability was less likely than not proximately due to or the result of his service connected glomerulonephritis. The rationale for the opinion in addition to the finding of no current disability was that based on a review of the Veteran's medical records there was no evidence linking the Veteran's mental health profile to a medical condition either during active duty or thereafter. This was also the rationale for the medical opinion stated in a November 2020 addendum opinion which concluded that it was less likely than not the Veteran's mental health diagnosis was aggravated beyond its natural progression by the Veteran's service connected kidney disability. The Board finds that the August 2020 VA examiner's opinion is probative evidence against a finding that the Veteran's psychiatric disorders are not related to his active duty service and accords it great weight. In particular, the Board notes that the examiner based their opinion on a comprehensive claim file records review as well as an in person examination of the Veteran. Notably, the findings of the August 2020 examiner are consistent with the plain reading of the Veteran's STRs and MPRs which are silent for any psychiatric problems during active duty. Similarly, the Board finds that the VA examiner's medical opinion that service connection is not warranted on a secondary basis to also be probative. There is no evidence linking the Veteran's kidney disability to an acquired psychiatric disorder. While the Veteran has sought service connection on a secondary basis, he has not otherwise identified why he believes his service connected disability has caused or aggravated a psychiatric disorder. The Board acknowledges the opinions dated July 2015 and May 2016 from the Veteran's treating VA psychiatrist. However, the Board finds that those opinions are not probative on the issue of service connection because they are based on erroneous findings. They are afforded no weight. In that regard the Board notes that the treating VA examiner did not have access to the Veteran's claims file for review. Rather it appears that the examiner based their opinion on a medical history reported to them by the Veteran. The July 2015 and May 2016 medical opinion statements are predicated on the mistaken belief that the Veteran was already service connected for schizophrenia. Furthermore, although the Veteran's reports that he experienced symptoms of mental illness during active duty are not substantiated by any of the contemporaneous medical evidence of record, those reports are nevertheless the basis for the examiner's rationale that the Veteran's psychiatric disability began during active duty. The Veteran's statements have been considered. While the Veteran is competent to attest to the symptoms he experiences, such as nervousness, hypersexuality and uncontrollable anger, he has not otherwise shown that he possesses the requisite medical training to determine the causation or etiology of such symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is not otherwise competent to attribute these symptoms to any later psychiatric diagnosis. Moreover, the Veteran appears to have had only identified these symptoms in March 1971, well after his November 1969 separation. This evidence weighs against the Veteran's contentions regarding continuity of psychiatric symptoms since active duty. In sum, the Board finds that the more probative evidence of record does not establish that the Veteran has a current diagnosis to support service connection for an acquired psychiatric disorder. Moreover, there is no nexus between any acquired psychiatric disorder and the Veteran's active duty service. Thus, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply and service connection for an acquired psychiatric disorder must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.