Citation Nr: 21041557 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-21 208 DATE: July 9, 2021 ORDER Service connection for schizophrenia/schizoaffective disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The probative medical evidence of record shows that the Veteran did not develop a psychiatric disorder until many years after leaving military service and that there is no relationship to any events or behaviors occurring during such service. 2. Throughout the period of appeal, the Veteran's service-connected disabilities have not been shown to render the Veteran unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for schizophrenia/schizoaffective disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from June 1978 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision. The above-listed claims were previously denied in a December 2017 Board decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court remanded the matter back to the Board in October 2018 for action consistent with the terms of the JMPR. The claims were again denied in an April 2019 Board decision. The Veteran appealed that decision to the Court, and pursuant to a new JMPR, the Court remanded the matter back to the Board in September 2020 for action consistent with the terms of the JMPR. Service Connection Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, schizophrenia and other psychoses are chronic diseases under VA regulations. Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) 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. VA examinations from 2014 and 2016 establish a current schizophrenia diagnosis during the appeal period. Therefore, the remaining question is whether that condition was incurred in service. For his part, the Veteran has related the disability to medications received in a January 1985 procedure in service that made him hallucinate. He has described this medication as being experimental in nature. Second, the Veteran reported being subjected to various forms of abuse and traumatic events during service. During a June 2014 VA examination, he reported that he was picked on by a drill instructor during basic training and singled out for verbal and physical abuse (extra physical training). During a June 2015 private examination, he described being verbally and physically abused by his drill sergeant during boot camp, and that he believed the sergeant was racially prejudiced against him. He said he was forced to jump off a high diving board into deep water even though he could not swim, and that one of his friends drowned in boot camp. He said he was also verbally harassed by his boss, including racial slurs, while he was stationed in Okinawa. During the April 2016 VA examination, he claimed to have been present at the following: leaving a marine to die at a gas chamber, a homicide (reporting a marine was deliberately pushed in the water, left to drown, while recruits were ordered to stand facing away), and a medical event (being resuscitated with a defibrillator). Service treatment records show that the Veteran was treated for a tonsillar abscess in August 1984 and in January 1985. A January 1985 inpatient nursing note (the treatment note is dated "1/17/84," but this appears to be an incorrect notation, as the next two nursing notes on the same page are dated "1/17/85" and "18 JAN 85") shows he underwent incision and drainage of the abscess under local anesthesia, and was given an IV (intravenous) of D5RL (dextrose 5% injection with Ringer lactate) in the left forearm and medicated with 4 milligrams of Stadol IM (intramuscular) for throat pain. The Veteran reported that the medication made him "hallucinate." He was observed to be diaphoretic and sleepy, but later discharged two days after admission. Subsequent medical records from the hospitalization are negative for complaints of hallucinations or other psychiatric symptoms. There are no further complaints and no diagnoses or other findings relating to a psychiatric disorder in service. On examination in June 1984, and again at his discharge examination in February 1985, his psychiatric system was clinically normal, and he denied a history of depression, excessive worry, nervous trouble or trouble sleeping. He wrote that he was in good health. VA treatment records dated from 1986 through the mid-1990's reflect treatment for various medical conditions but are negative for complaints or diagnoses of a psychiatric disability. Private treatment records from 1993 and 1994 similarly show treatment for unrelated medical problems without mention of a psychiatric disorder. The first post-service report of possible psychiatric complaints is in records dated June 1998, when the Veteran reported experiencing asthma attacks related to various stressors, including arguments with his former wife. His records show a diagnosis of asthma. He also reported occasional depression related to his illness. He was seen later that month by a social worker for a psychosocial assessment, but no psychiatric condition was diagnosed. A mental status examination from July 1998 was also normal. A February 2000 certificate of health, generated for medical leave purposes, indicated that the Veteran had recent explosive personality behaviors, but also stated that this and other problems were present for many years. The provider recommended weekly anger management classes and individual therapy with a psychologist. VA records dated June 2001 show the Veteran reported symptoms of auditory and visual hallucinations and having disturbing dreams. He reported that he received an experimental drug during service and had experienced bad dreams and visions since then. The diagnostic impression was psychosis. Additional VA records in April 2006 show a diagnosis of schizoaffective disorder. In an October 2008 letter, a VA physician stated that the Veteran had schizophrenia for which he had been treated for the past 18 years, although the basis for that treatment history is not clear. At his March 2014 Board hearing, the Veteran asserted that he was given an experimental drug for pain during a hospitalization for a throat surgery around 1983 or 1984 in service which caused delusions, nightmares and dreams that continued ever since. He said the nurse asked him to sign papers agreeing to get "experimental X" drug in his IV when he asked for pain medication. He reported continuing hallucinations afterward. He said he did not seek treatment for this until he went to the VA and did not pay attention to this because he thought it was normal. The Veteran was provided with a VA examination in June 2014. The Veteran was diagnosed with an unspecified schizophrenia spectrum and other psychotic disorder. The examiner opined that the condition was less likely than not the result of military service, but limited the inquiry to a relationship with a peritonsillar abcess. It was indicated that medical science does not support that a peritonsillar abcess can cause a schizophrenic disorder. The Veteran has submitted affidavits dated in May 2015 from his brother and uncle in support of his claim. Both stated that the Veteran's personality changed after service and was less social. The Veteran's uncle recalled that his sister told him that the Veteran's behavior was bizarre after he came home. He said the Veteran was on a lot of medication and was never able to work because of his mental condition. His brother stated that after returning from service, the Veteran was very short-tempered, and was once aggressive with another brother. The Veteran provided the results of a June 2015 private psychiatric examination. The June 2015 private examiner provided a positive opinion linking the Veteran's current schizophrenia to the extreme emotional distress he experienced in response to the reported abuse. However, this opinion was based on an inaccurate factual premise, in that the Veteran had inpatient psychiatric treatment in service. As discussed above, this was not the case, and aside from the Veteran's reported hallucination in service, psychiatric treatment of any kind was not present during service or for many years after. Therefore, the probative value of this opinion is greatly reduced. See Reonal v. Brown, 5 Vet. App. 458 (1993). The Veteran was provided with an additional VA examination in April 2016. The April 2016 VA examiner indicated that Veteran had a diagnosis of schizophrenia/ schizoaffective disorder. However, he further stated that the evidence substantiates the presence of malingering, as evidenced by conflictual accounts, reports of highly improbable situations, etc. It was striking that although the Veteran's narrative contained several references to events or experiences in a context of being associated with psychological distress that are highly implausible (he and his platoon being ordered to march away leaving a Marine to die; he and other Marines being told to stand and face the other way while a Marine drowns to death in a pool, then seeing his body), the record lacks evidence of any such events. Similarly, the Veteran reported extensive drug use in the barracks, in which he had not been involved, but he did quote the prices of what drugs were selling for. He also repeatedly stated that he had not turned in anyone, but somehow had reported getting involved with an undercover MP, being polygraphed. Again, this was not in the records and appeared manufactured. He had also previously reported under oath that the onset of hallucinations and delusions was 1983 or 1984, and yet stated to this examiner that he had started to have mental health problems, including nightmares, in basic training. Thus, his statements have been contradictory. He also made an implausible statement that he had apparently coded during service, needed to have defibrillator applied, and was resuscitated. The examiner noted that there is obviously no evidence of this in his medical records, and that if such an event happened, he would have been treated in the ICU, been on oxygen, had a cardiac monitor, etc. The examiner concluded that the picture at hand was most consistent with the Veteran intentionally presenting various accounts which are not substantiated. In addition, the one event which has been used as evidence in this case, namely getting pain medication, has been exaggerated. Overall, there was malingering in the events themselves, as well as the onset and chronology of symptoms, was apparent. He further noted that records indicate that Veteran had been able to work for the state of Alabama for a 10-year period from approximately 1991-2001. For most of this time, there is no record of him having treatment for mental health. This is not consistent with the natural course of an untreated emotional disorder - particularly the claimed contention of psychotic disorder - for the Veteran to have such functioning despite no treatment. Additionally, to the extent that he has asserted that medication administered to him in 1985 in service caused his current disability, the April 2016 VA examiner noted the Veteran had been given an FDA-approved pain medication, which was within the bounds of practice at the time. Mental status changes such as the hallucinations reported by the Veteran are known to medical science to not be permanent and not result in any lingering psychological effects. The examiner further noted that medication resulting in development of schizophrenia and/or a lifelong mental disorder was not founded in medical science. Any such mental status changes were expected to resolve once the medicine wears off, and indeed his records indicated that he had nursing re-assessments which documented that no lingering symptoms persisted. The Veteran provided the results of an April 2017 private medical opinion. The April 2017 private medical opinion of Dr. S. found that the current psychiatric disorder (schizoaffective disorder, bipolar type) was first manifested in service, as demonstrated by a January "1984" (actually 1985) service treatment record showing that the Veteran had hallucinations. He also opined that the Veteran's service personnel records showed a decline in work performance. Beginning in July 1980, the Veteran had disciplinary issues, demonstrated a poor attitude, required constant supervision, and presented himself poorly to subordinates; resulting in loss of rank and not being recommended for re-enlistment. Dr. S. opined that this supported the conclusion that his current psychiatric disorder was manifested in service. An addendum opinion to the April 2017 private opinion was provided in April 2021. Dr. S. found that the current psychiatric disorder, schizoaffective disorder, bipolar type was still supported by diagnostic testing. He further indicated that the Veteran's condition at least as likely as not began in military service. In support, he provided that the service personnel records reflected a drastic drop in performance and behavior that were consistent with the onset of the type of psychiatric disability from which the Veteran currently suffers. Furthermore, Dr. S. reiterated that the Veteran's disorder was consistent with his inability to accurately render the factual history of his illness. The Board finds that service connection for schizophrenia as a chronic disease is not warranted. As seen above, service treatment records do not establish that schizophrenia or any psychiatric disability was reliably diagnosed during service, and post-service VA records do not show that schizophrenia was present within one year of the Veteran's discharge. Although an indication of the presence of psychiatric disability was provided by the Veteran's lay statements of his symptoms along with the lay statements of observed behavioral changes by the Veteran's family and friends, it is noted that such statements were vague and overly general to the point that they could have been describing any acute life events or stressful periods without a clinically diagnosed psychiatric disability being present. In particular, the uncle's statement is not clear as to the period of time he is describing, and the brother's statement doesn't necessarily describe symptoms of mental illness. There is no indication that any of the providers of these lay statements possessed medical knowledge or expertise as would be required to diagnose such a medically complex issue as a psychiatric disorder or its symptoms. Last, throughout the course of appeal, the Veteran has been rendered, as discussed in examinations above, to be an uncredible historian, and, therefore, his statements regarding early onset of symptoms and precursor events appear to be have a low likelihood of occurrence. In any event, these statements are afforded very low probative value. Additionally, the 2017/2021 private examiner's findings that there were early indicators of the Veteran's psychiatric disorder seen in his documented declines in performance during service interpreted the Veteran's disciplinary actions in-service as a significant change that marked the onset of the current disability. However, the April 2016 VA examination provided that this was simply documenting an existing pattern. The Veteran had a number of infractions that apparently were not enough to prevent him re-enlisting in 1981, indicating an expectation of that sort of behavior, or at least that the Veteran adapted appropriately to being a Marine. In any event, the behavior persisted after the re-enlistment, and although at that point he was not recommended for re-enlistment, he had an honorable discharge. All this occurred without any medical person finding a psychiatric disorder, even when it was the subject of a specific inquiry as set out on the report of medical examination completed in connection with service separation. Likewise, the VA examiner noted the steady employment for years post service, which is not the natural course of an untreated psychotic disorder, countering the private evaluator's assertion of an ongoing psychosis since service. However, the most probative evidence is the service treatment records and the many years of post-service medical records which contemporaneously document encounters with the Veteran and failed to show the presence of a psychiatric illness until years after service. These records, together with the adverse VA examinations outweigh the favorable evidence. Accordingly, the preponderance of the competent, probative evidence of record fails to establish and etiological relationship between the Veteran's psychiatric disability and his active duty service. The benefit-of-the-doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107 ; 38 C.F.R. §§ 3.102 , 4.3. TDIU Following a careful review of the record, the Board finds that the preponderance of the evidence is against the claim for a TDIU. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a) (2019). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16 (a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019). During the period on appeal, the Veteran's service-connected disabilities included sleep apnea (rated 50 percent disabling from May 2, 2018) and herpes (rated noncompensable). Thus, he does not meet the TDIU criteria pursuant to 38 C.F.R. § 4.16 (a). Records on file show that the Veteran was employed on a full-time basis from 1986 to 2001, including with the same employer, a state hospital, for the last 10 years. March 2001 SSA records show that the Veteran reported that he worked as a cook/kitchen aide from January 1986 to June 1987, a steward from July 1987 to November 1989, and as a food service cook from March 1990 to March 2001 on a full-time basis. In a February 2000 certificate of health care provider, for Family Medical Leave purposes, S.A., CRNP primary care provider, indicated that the Veteran had severe asthma, hypertension, and gastrointestinal reflux disease (GERD), as well as recent explosive personality behaviors. She also stated that all problems were present for many years. She said he should work a reduced schedule, and could be incapacitated by acute exacerbations of his asthma. She recommended weekly anger management classes and individual therapy with a psychologist. In a February 2001 physician's report of disability, Dr. S. indicated that the Veteran had severe asthma and sarcoidosis. Records from the Veteran's state reflect that his application for disability retirement was approved, and the effective date of his retirement was April 1, 2001. In December 2002, the Social Security Administration (SSA) granted disability benefits with a primary disability of asthma and a secondary disability of affective or mood disorders. The SSA determined that the Veteran became disabled in February 2001. In this context, there was no discussion of the Veteran's sleep apnea or herpes as any kind of impediment to employability. In a June 2009 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran said that he became too disabled to work in January 2001, due to schizophrenia. He said he worked as a cook on a full-time basis from 1989 to 2001 at a private hospital. He reported that he completed high school and had no additional education or training. The Veteran has made no specific allegations regarding the impact of his sleep apnea or herpes on employability. The medical evidence of record has not shown that the Veteran's sleep apnea and/or herpes taken singularly or together would cause unemployability. The Veteran was provided with a VA examination for his sleep apnea in January 2019 and the examiner found that the Veteran's sleep apnea may impact his ability to work due to feelings of shortness of breath, but there was no indication that this would altogether prevent work or that reasonable accommodations would not be available to counter these feelings. Additionally, a December 2019 VA examination found that the Veteran's sleep apnea would impact his work due to daytime sleepiness and fogginess. However, there was again no indication that this would altogether prevent work or that reasonable accommodations would not be available to counter this. Here, the Board finds that the preponderance of the evidence does not show that his service-connected disabilities have rendered him unemployable. Rather, he has significant occupational impairment due to nonservice-connected disabilities. In this regard, the Board has considered VA medical records, private medical records, and SSA records that indicate that the Veteran has been considered disabled for that agency's purposes due to nonservice-connected disabilities. The SSA is a separate government agency and has unique criteria to determine when someone is disabled that are separate and distinct from VA's criteria. Thus, the Board concludes that the findings during VA treatment and examination to be more probative than the SSA determination of unemployability regarding the effect of the Veteran's service-connected disabilities on his occupational functioning. In light of the foregoing evidence, which does not show that the Veteran is unemployable as a result of his service-connected disability, the Board finds that extraschedular referral under 38 C.F.R. § 4.16 (b) is not warranted. The most probative evidence of record does not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The claim for entitlement to a TDIU is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.