Citation Nr: 21028129 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-09 961 DATE: May 10, 2021 ORDER Service connection for an acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, posttraumatic stress disorder (PTSD), and schizophrenia, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's current acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, PTSD, and schizophrenia, had its onset during the Veteran's active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, PTSD, and schizophrenia, are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.384. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to July 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In November 2017, the Veteran had a hearing before a Decision Review Officer (DRO). The transcripts of these hearings are of record. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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 benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for an acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, PTSD, and schizophrenia. The Veteran contends that his acquired psychiatric disorder, currently diagnosed as schizophrenia, began when he returned from Iraq, and have worsened since discharge from active service. Specifically, at the hearing, the Veteran through his representative, asserted that he experienced depression, difficulty sleeping, excessive worrying, hypervigilance, feelings of hopelessness, and loss of interest in-service. Additionally, the Veteran testified that after he returned from Iraq, he had problems with his superiors, feelings of worry and hopelessness, and he withdrew from others. Further, the Veteran testified that he started experiencing auditory hallucinations in 2008. See 11/8/2017 Hearing Testimony, at pages 7, 8, 14, and 15; see also 7/22/2020 Hearing Transcript, at pages 3, 6, 7, 8, and 9. In addition, the Veteran, through his representative cited medical literature to support his argument that the Veteran's symptoms were the prodromal stage of schizophrenia. See 5/13/2020 Correspondence, at pages 4 and 5. Furthermore, the representative's argument was based on the assertions of treating psychiatrist Dr. S.M., M.D., discussed below. See 6/22/2015 Third party Correspondence, at page 4. Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of schizophrenia as evidenced by the July 2012 and August 2013 VA examinations. Schizophrenia is a chronic disease (as a psychosis under 38 C.F.R. § 3.384) and therefore an enumerated condition under 38 C.F.R. § 3.309(a) and Walker, 708 F.3d at 1336-38. During service, the record showed that the Veteran had symptoms, such as difficulty sleeping, nightmares, depression, lack of interest, hypervigilance, and feelings of worry and hopelessness. Additionally, in 2006, the Veteran was diagnosed with depression and an adjustment disorder. See 8/23/2007 STR Medical, at pages 32, 42, 44, and 47. VA treatment records showed that the Veteran was diagnosed with psychosis NOS, schizophrenia, and depression with psychotic features. See 7/2/2013 CAPRI, at page 510. Further, Social Security Administration records showed a diagnosis of PTSD. See 5/10/2017 Medical Treatment Records Furnished by SSA, at page 635. As mentioned above, the Veteran testified that after he returned from Iraq, he had problems with his superiors, feelings of worry and hopelessness, and he withdrew from others. See 7/22/2020 Hearing Transcript, at page 6. The Board finds that in-service records show that the Veteran's mental health disorder was "noted" in service although a formal diagnosis of schizophrenia was not given at the time. Furthermore, the Board finds that while no treatment records exist from the applicable presumptive period, the Veteran continued to experience the same symptoms from discharge to present based on the lay statements and opinion of Dr. S.M., M.D., submitted in support of his claim. Specifically, the Veteran testified that his symptoms have continued upon separation from active service. Additionally, the Veteran testified that between returning from Iraq through 2009 he transitioned from having anger, anxiety, depression, and trusting problems to having delusions and hallucinations. Further, the Veteran testified that he did not seek treatment before 2009 because he did not think there was anything wrong with him; he thought his delusions were real. See 11/8/2017 Hearing Testimony, at page 9; see also 7/22/2020 Hearing Transcript, at pages 7, 11, 15, 16, and 17. In addition, the Veteran's father submitted lay statements wherein he immediately noted a change in behavior after the Veteran returned from service. The statement went on to say that the Veteran experienced nightmares, anger issues, hallucinations, and paranoia. See 10/31/2017 Correspondence; see also 11/1/2017 Buddy / Lay Statement. The record also showed that Dr. S.M., stated that the Veteran developed the full symptoms of paranoid schizophrenia in the summer 2007. See 6/22/2015 Third Party Correspondence. Additionally, VA treatment records showed at least two inpatient psychiatric hospitalizations; one in July 2009 and the other in May 2011. See 5/23/2012 Medical Treatment Record Government Facility; see also 7/2/2013 CAPRI, at pages 348 and 544. The Veteran was provided a VA PTSD examination in July 2012. The examiner diagnosed the Veteran with paranoid schizophrenia and noted that the Veteran had psychiatric hospitalizations in July 2009 and May 2011. The examiner ultimately provided a negative nexus opinion based on the fact that the Veteran did not have a diagnosis of PTSD. Additionally, the examiner stated that the Veteran's development of schizophrenia after service was more likely than not coincidence since onset typically occurs early after a person turns twenty years old. See 7/13/2012 C&P Examination. The Board finds this opinion inadequate since the examiner did not address if the Veteran's diagnosed schizophrenia was related to the in-service depression and adjustment disorder. Additionally, the examiner did not have the full medical record available for examination, such as the Veteran's contentions that his acquired psychiatric disorder, diagnosed as schizophrenia, began when he returned from Iraq and have worsened since separation from active service, or that the Veteran's symptoms were the prodromal stage of schizophrenia. The Veteran underwent another VA psychiatric examination in August 2013. The Veteran was diagnosed with schizophrenia. At the conclusion of the examination, the examiner rendered a negative opinion. As rationale, the examiner relied on the lack of treatment history prior to 2009, when the Veteran was diagnosed with schizophrenia, and three years after discharger from service. See 8/12/2013 VA Examination. The Board finds this opinion inadequate since the examiner based the opinion on the lack of treatment records prior to 2009 without specifying why that was important. Additionally, the examiner did not have the full medical record available for examination, such as the Veteran's contentions that his acquired psychiatric disorder, diagnosed as schizophrenia, began when he returned from Iraq and have worsened since separation from active service, or that the Veteran's symptoms were the prodromal stage of schizophrenia. The record also showed a negative opinion from Dr. A.M., M.D., who stated that the Veteran had no history of schizophrenia in service. See 2/13/2014 Correspondence. The Board finds this opinion inadequate since it relied on a lack of in-service diagnosis. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether hypervigilance, paranoia, hopelessness, difficulty sleeping, and nightmares were noted in service with post-service continuity of the same symptomatology. As the disability in question, schizophrenia, is a chronic disease (as a psychosis under 38 C.F.R. § 3.384) under 38 C.F.R. § 3.309(a), an award of service connection may be established solely based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (stating that the primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the "nexus" requirement of the three-element test, whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology). Accordingly, the Board finds that service connection for an acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, PTSD, and schizophrenia, is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND A TDIU. In this decision, the Board grants service connection for an acquired psychiatric disorder, to include psychosis NOS, depression with psychotic features, PTSD, and schizophrenia. The Agency of Original Jurisdiction has not been afforded the opportunity to assign a disability rating for this now service-connected disability. Up to this decision, the Veteran does not have any service-connected disabilities; thus, he does not meet the requirements for a schedular TDIU. Therefore, the Board finds that the assignment of an initial rating and effective date for the newly granted service connection claim must be completed prior to the adjudication of the Veteran's TDIU. As such, these matters are intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). This matter is REMANDED for the following action: Assign an initial rating and effective date for the now service-connected acquired psychiatric disorder, as variously diagnosed. Then, adjudicate the issue of entitlement to TDIU. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fuentes, 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.