Citation Nr: 21027456 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-39 558 DATE: May 5, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD, but to include schizophrenia, is denied. FINDING OF FACT The preponderance of the evidence of record is against a finding that the Veteran's currently diagnosed acquired psychiatric disorders, to include schizophrenia, are related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, have not been met. 38U.S.C. §§1110, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309, 3.386. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in July 2019. A transcript of the hearing has been associated with the claims file. In a November 2019 decision, the Board denied the Veteran's claims for service connection for posttraumatic stress disorder (PTSD) and an acquired psychiatric disorder other than PTSD, to include schizophrenia. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). While the matter was pending before the Court, in August 2020, the Veteran's attorney and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand. In the Joint Motion, the parties indicated that the Veteran no longer wished to pursue his claim for service connection for PTSD, but a remand of the Board's denial of service connection for an acquired psychiatric disorder other than PTSD was necessary. Specifically, the parties agreed that "the Board failed to provide an adequate statement of reasons or bases addressing continuity of symptomatology." In an August 2020 Order, the Court vacated the Board's November 2019 denial of service connection for an acquired psychiatric disorder other than PTSD. The issue was remanded for readjudication in light of the Joint Motion. Service connection Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has also established certain rules and presumptions for chronic diseases, such as psychoses. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, and manifests certain chronic diseases, including 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; 38C.F.R. §§3.307, 3.309. Under 38 C.F.R. § 3.384, the term "psychosis" means any of the following disorders: brief psychotic disorder; delusional disorder; psychotic disorder due to another medical condition; other specified schizophrenia spectrum and other psychotic disorder; schizoaffective disorder; schizophrenia; schizophreniform disorder; and, substance/medication-induced psychotic disorder. The Veteran maintains that his mental health disability, to include schizophrenia, is related to service. A review of the medical evidence of record shows the Veteran has been diagnosed with various acquired psychiatric disabilities, to include schizophrenia or schizoaffective disorder, psychotic disorder not otherwise specified, anxiety, and polysubstance dependence. As a current psychiatric disability has been confirmed in the record, the question before the Board is whether such a disability had its onset in service, has been chronic and continuous since service separation, manifested to a compensable degree within one year, or is otherwise due to an in-service disease, injury, or other event of service. After considering the totality of the record, the Board finds the preponderance of the evidence is against such a conclusion, and service connection for an acquired psychiatric disability, to include schizophrenia must be denied. The Veteran's service treatment records do not demonstrate any diagnosis or treatment for a mental health disability. The Veteran's January 1974 entrance examination was negative for psychological disabilities, and he did not report any mental health symptoms on his contemporaneous Report of Medical History. A review of the Veteran's service personnel records confirms that he was charged under Article 15 of the Uniform Code of Military Justice (UCMJ) with failure to report to Accountability Formation on at least three occasions between May 13 and 16, 1974. See May 1974 Record of Proceedings Under Article 15, UCMJ. It was noted that the punishment imposed was forfeiture of $75.00 for one month. The form reflects that the Veteran was advised of his appeal rights and the right to consult with legal counsel. The Veteran's DD Form 214 reflects that the Veteran was honorably discharged. There is no separation examination of record. In August 2016, the Veteran submitted a written statement contending that his superior officer harassed him during training due to his race. The Veteran also described an incident during the Veteran's guard duty involving a confrontation with his superior officer. The Veteran stated that his captain would not produce identification at the guard post, which caused the Veteran to point his weapon at his captain. The Veteran indicated that the next day he was verbally threatened by the captain and a few other superiors to sign a discharge of service paper. The Veteran stated that he never lost time or received an "Article 15" in service. The Veteran also stated that his brother was murdered in 1975 after he left service. See August 2016 Correspondence. In July 2019, the Veteran submitted a written statement and testified at a Board hearing. The Veteran's 2019 statements generally duplicate the August 2016 statements regarding the events that led to his leaving the service. The Veteran reported that a superior officer made a comment about his race during basic training and that same officer required him to do push-ups on demand. The Veteran indicated that the officer was treating him unfairly due to his race. The Veteran restated details regarding the incident while the Veteran was on guard duty and the officer failed to show his identification. The Veteran stated he drew his weapon on the officer because that was what he was trained to do. The Veteran stated that the next morning, he was called into the office of his superior officer and told he would have court martial proceedings filed against him or he could sign a paper and voluntarily separate from service. Additionally, the Veteran testified that he tried to go to college in 1975. He added, "I was an athlete but had to leave college. From then on I was in and out of hospitals." Hearing transcript, page 4. The Veteran also testified that he "came out of high school when [he] graduated [he] ran to service because being an athlete [he] wasn't able to go to college." Id., at 7. The Veteran has also testified that he did not graduate high school. Id. While the timeline is unclear from the record and the Veteran's testimony, it appears that he completed eleventh grade before entering service and obtained a Graduate Equivalent Diploma (GED) sometime after service. On a May 1979 VA Form 21-526, the Veteran indicated that his highest level of education was twelfth grade and he had "none" other education or training. Records from August 2011 indicate that his highest education level is eleventh grade, while records from November 2011 report that he obtained his GED and attended half a year of community college. In September 1977, the Veteran was admitted to the Long Beach VA Medical Center (VAMC) for a drug induced psychotic reaction. See VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. In March 1979, the Veteran was admitted to the locked ward on a voluntary basis at the Long Beach VAMC for "psychosis due to drug intoxication." The records note the Veteran's prior psychiatric admission in 1977, but noted the records were not available. It was also noted that the Veteran had no other pertinent medical or psychiatric history, and no history of other drugs such as cocaine, heroin, or barbiturates. The physician noted that the Veteran may be responding to hallucinations and was filled with persecutory ideations, his mood was "hostile and anxious," and his thought content included vivid delusions and "some quite grandiose." The Veteran was initially treated with different medication regimes, to include Diazepam and Haloperidol. After six days, the Veteran left the facility against medical advice. In April 1979, the Veteran was admitted to Long Beach VAMC on a "5150" secondary to PCP (phencyclidine) induced psychosis. A 5150 refers to an involuntary admission. See California Welfare and Institutions Code, § 5150. The Veteran's problem assessment revealed: acute psychosis with rule out thought disorder versus drug induced state, chronic PCP abuse, and poor environmental living situation. The physician noted that the Veteran had been on multiple prescription regimes to control his underlying thought disorder. The Veteran expressed that his depression was due to his inability to acquire a stable living situation and feelings of rejection by the women in his life. Subsequent treatment records demonstrate the Veteran has been in and out of treatment facilities for drug abuse, drug induced psychosis, psychosis induced by PCP, and substance abuse psychotic disorder. The Veteran stated that he started abusing drugs after witnessing his brother's murder. See May 2011 treatment notes. The Veteran specifically denied drug use in service. See August 2011 treatment notes. The records reflect that the death of his brother, getting attacked on the streets, struggles with homelessness, and the bereavement over the death of his father have contributed to his mental disabilities. There is no indication of an association between the Veteran's psychiatric symptoms and racial comments or improper treatment in service. In May 2011, the Veteran stated that he left the Army after four months because he did not get along with his Captain. In August 2011, the Veteran stated that he saw his superior "doing something he wasn't supposed to be doing" and had a gun on him. In September 2013, the Veteran stated that he "tried to kill his Captain" because "something happened," the Veteran refused to elaborate, but stated he was given the option to leave with an honorable discharge and he accepted the offer. Subsequently, in October 2013, the Veteran reported that the captain pulled a gun on him during service, but the treatment record does not elaborate. The records indicate that the Veteran has sustained several head injuries. Notably, in the 1980s he was hit in the head with a fireplace poker and later he was hit in the head with the back of a gun. The physician stated that the Veteran is a somewhat limited historian due to memory difficulties and concrete thought process. See August 2011 treatment records. Upon review of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder other than PTSD is not warranted. As described below, the evidence does not support the conclusion that it is at least as likely as not that the Veteran's current mental disorders manifested in service, developed to a compensable degree within one year of service, or are otherwise related to his active duty service. The Board has considered the Veteran's lay statements regarding his claimed harassment in service and confrontation with his superior officer. While the Veteran is competent to report his experiences and symptoms since service, he is not competent to relate his current disability to the alleged in-service confrontations because the etiology of an acquired psychiatric disability is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board previously found and continues to find the Veteran's statements not credible. See the November 2019 decision, pages 5-6, citing Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The record does not demonstrate that the Veteran's mental health condition started in service. Treatment records reflect the Veteran himself specifically attributing his mental health symptomology to witnessing his brother's post-service murder, being attacked while living on the streets and to dealing with the death of his father. To the extent the Veteran now contends that his mental health disorder is related to service, began during service, or manifested to a compensable degree within one year of his separation, these statements are contrary to previous statements made and the Board does not afford them any probative weight. Caluza, supra. The Veteran's statements are also not credible because they are internally inconsistent. At times, the Veteran has reported that he pulled a gun on his captain because he refused to show identification when returning to base. He also reported that the captain pulled a gun on him. Finally, the Veteran reported that he attempted to kill his captain. As discussed, the Veteran's service personnel records confirm that he was charged under Article 15 of the Uniform Code of Military Justice (UCMJ) with failure to report to Accountability Formation on at least three occasions between May 13 and 16, 1974. The records do not document that he pulled a firearm on a captain. Pulling a firearm on a captain is such a serious and dangerous incident that it is reasonable to conclude that it would have been documented in the Veteran's service personnel records. Instead, the service personnel records only document that he failed to report to formation on time; behavior which is of a lesser severity. In finding that the Veteran's reported history is inaccurate, the Board notes that medical professionals have also found that his memory problems and thought processes make him a "limited historian." See an August 2011 treatment record; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board has also considered the allegation that the Veteran was harassed and humiliated in service. However, there is no indication in the record, other than statements made by the Veteran in conjunction with this claim on appeal, that his currently diagnosed psychiatric disorders are related to service. As discussed above, the Veteran is not competent to make such a determination. His initial diagnosis of psychosis was attributed to PCP intoxication. The Veteran has stated that he began using drugs after his brother's death, which was after service, and the treatment records repeatedly reflect the Veteran himself specifically attributing his mental health symptomology to drug abuse, poor living conditions, witnessing his brother's murder, and dealing with the death of his father. Thus, as there is no indication of a nexus between the Veteran's currently diagnosed acquired psychiatric disorder and service, service connection for this claimed disability on a direct basis is not warranted. The Board notes that schizophrenia is considered to be a psychosis entitled to presumptive service connection for a chronic disability. 38C.F.R. §§3.309, 3.385. However, as there is no evidence of record indicating a diagnosis of this disability within the presumptive period, entitlement to service connection based on a presumptive theory of entitlement for a chronic disability is not warranted. See 38 C.F.R. § 3.309(a). To the extent that the Veteran started taking drugs due to his brother's death in October 1974, within a year of service, that incident has not been shown to be related to service and is clearly an intercurrent cause not attributable to his service. 38 C.F.R. § 3.303(b). Finally, there is no evidence of continuity of symptomology of this disability. "Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was 'noted' during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) As shown, there is nothing in the Veteran's service treatment records or personnel records demonstrating a mental disability. The Board has considered the Veteran's lay statement regarding a confrontation in service, but as noted above, his statements are not credible in that they are internally inconsistent and were made over 35 years after in relation to a claim for benefits. The Veteran stated that he did not use drugs in service and began using drugs after the death of his brother in October 1974. The first evidence of record that the Veteran was hospitalized with drug induced psychosis was in 1977 at Long Beach VAMC, three years after service. The Veteran testified that he remembered his first treatment being at the Long Beach VAMC and the Veteran indicated that his first treatment was "like" in 1975, but he was uncertain of the actual year. In September 2013, the Veteran stated that he was hospitalized involuntarily due to psychosis induced by PCP use on at least eight occasions, three of which were at Long Beach VAMC. The April 1979 Long Beach VAMC records indicate that it was his third time at that facility. Given the that the Veteran's memory has been compromised, the Board finds the contemporaneous evidence more probative and concludes that 1977 was the Veteran's first treatment for his mental disability, not 1975. To the extent the Veteran maintains that he tried to go to college in 1975 but had to leave, in part because he was in and out of hospitals, the Veteran's statements are not credible. As shown, his head injuries and resulting memory problems have rendered him an inaccurate historian. While the record does not contain the exact date the Veteran attended his semester of college, the earliest indication is 2011. The Board acknowledges that the Veteran has not been provided a VA examination for his mental health disabilities; however, there is no credible indication of a nexus between any current diagnosis and service. Because the Veteran's statements are not credible, the evidence does not establish symptoms of the disease manifesting during service or within the presumptive period. A VA examination would not otherwise aid in substantiating the claim. Hence, remand for a VA examination is not warranted. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Miller v. Wilkie, 32 Vet. App. 249 (2020); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The August 2020 JMR stated that the Board failed to provide an adequate statement of reasons or bases addressing continuity of symptomatology. First, the parties noted that the Board did not take into consideration the Veteran's lay statements of an in-service confrontation when determining that he had a chronic disability in service. As discussed above, the Board finds that the Veteran's statements conflict with each other and the alleged event did not occur. There is also no mention of the Veteran drawing his firearm against a captain. Even if the Board were to assume that the event occurred, the post-service treatment records document that the Veteran's psychiatric disorder began as a result of his post-service drug use and not during his active duty service. Accordingly, a chronic disability was not noted during service. Second, the parties agreed that the Board did not address his post-service medical history when considering continuity of symptomatology. As discussed above, the record indicates that the Veteran began receiving treatment following his separation from service and post-service drug use following the death of his brother. Medical professionals have indicated that the Veteran's memory is impaired and the JMR notes that the Veteran was uncertain when he began mental health treatment. A psychosis was not diagnosed within one year and the record does not indicate that a psychosis manifested to a compensable degree with in one year. Although the Veteran has a lengthy history of mental health treatment, that treatment did not begin until after service and the contemporaneous records do not suggest that it is related to the Veteran's active duty service. Finally, the parties agreed that the Board must consider the Veteran's lay statements regarding a confrontation in service to determine whether he had a chronic disability evidenced by this behavior change. Again, the Board finds that the alleged in-service incident did not occur. The Board recognizes that the Veteran repeatedly failed to report for formation in May 1974 during Advanced Individual Training (AIT), however, these incidents occurred early into the Veteran's active duty service and there is insufficient evidence to establish that this was a change in behavior. In this capacity the Board notes that the Veteran's enlistment paperwork documents that he had conduct issues prior to service. Specifically, he had been arrested on three separate occasions, one of which involved discharging a firearm within municipal limits. In light of this evidence, the Board finds that there is insufficient evidence to find that the Veteran's failure to report for formation was a change in behavior. In sum, the preponderance of the evidence is against finding that the Veteran's mental disabilities had their onset in service, were chronic and continuous since service separation, manifested to a compensable degree within one year of service, or are otherwise due to an in-service disease, injury, or other event of service. Accordingly, as entitlement to service for an acquired psychiatric disorder, to include schizophrenia, is not warranted, the Veteran's claim is denied. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.