Citation Nr: 22018593 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-40 948A DATE: March 29, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, (formerly characterized as an acquired psychiatric disorder, to include an anxiety disorder, nerve disorder, posttraumatic stress disorder (PTSD), depression, and schizophrenia) is granted. Entitlement to service connection for a sleep disorder is denied. REMANDED Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran's acquired psychiatric disorder, to include schizoaffective disorder, is related to his active service. 2. The evidence of record persuasively weighs against a finding that the Veteran has a diagnosed sleep disorder that is separate and distinguishable from his sleep impairment associated with his now service-connected acquired psychiatric disorder, to include schizoaffective disorder. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307. 3.309. 2. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1133, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1988 to August 1991 with additional service in the Navy Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In July 2019, the Board remanded this matter to the RO for further development. 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. § 1131; 38 C.F.R. § 3.303(a). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, certain chronic diseases, including schizophrenia, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder The Veteran contends that his psychiatric symptoms began in service and have continued since service. In the present case, the Veteran was diagnosed with schizoaffective disorder at the November 2021 VA examination. Thus, the Board finds that the first element of service connection is met. Moreover, the Board finds that the Veteran was presumed sound upon service entrance, as a psychiatric disability was not "noted" on his service entrance examination report. 38 C.F.R. § 3.304(b). Next, the Board finds that the evidence is in equipoise as to whether the Veteran had an onset of psychiatric symptoms, later diagnosed as a psychiatric disorder, to include schizoaffective disorder, in service and since the Veteran's separation from service. In this regard, the Veteran's active service treatment records (STRs), including entrance and separation examinations, are silent as to any psychiatric symptoms, complaints, treatment, or diagnoses. The Board notes that, although the Veteran was not specifically diagnosed with an acquired psychiatric disorder during active service, such is not required for service connection to be granted. See 38 C.F.R. § 3.303(d) (providing service connection may be granted for any disease diagnosed after service when the evidence establishes in-service incurrence). Here, the Veteran has consistently reported experiencing psychiatric symptoms in active service or approximately within three years of his discharge from active service. For example, a December 1994 VA treatment record reflects that the Veteran had felt paranoid and self-conscious in the past year while a May 1996 psychological assessment reflects the Veteran's report of an onset of psychiatric difficulties in the summer of 1994. On the other hand, an October 1996 Social Security Administration (SSA) Disability Report reflects the Veteran's report that his schizophrenia with occurrences of depression first started to bother him on August 15, 1992. He further reported that his doctor informed him that stress induces his symptoms and that he hears voices upon occurrences of stress. In a November 1996 SSA Activities of Daily Living Report, the Veteran reported that his problem began in the fall of 1993, manifesting as an inability to sleep well due to anxiety. A January 1977 VA discharge summary reflects that the Veteran admitted to auditory hallucinations on and off for the past three years. However, at the March 1997 VA examination, the Veteran reported that his auditory hallucinations started six years prior and that he was very suspicious between 1991 and 1992. Further, a May 2007 VA treatment record reflects that the Veteran was unable to recall when he was first diagnosed with a psychotic condition but stated that he was untreated while in the Navy and thought that he first sought treatment immediately out of the Navy. A March 2012 VA treatment record also reflects that the Veteran began to talk about "the crossing" which was a machine that broadcasts voices into his head, that it was a common practice among doctors in the military, and that this was first done to him while at a Naval Base. Likewise, at the April 2019 Board hearing, the Veteran testified that he first began to experience psychiatric symptoms in service where he heard "broadcasts" following a gas chamber training. See April 2019 Board hearing transcript, p. 6. He explained that once he heard the broadcasting in service, he never dealt with it because he did not know what was going on or how to deal with it and when he said something, he was sent to a hearing test. See id. at pp. 9, 23. Similarly, at the November 2021 VA PTSD examination, the Veteran described that he started hearing voices, which he perceived as coming from a radio call, after an in-service training involving a gas chamber. He explained that he was very anxious in the training and the voices continued thereafter but that he did not experience hearing these voices prior to the training. He also reported feeling stress with his schedule and that he began to have trouble sleeping and infrequent panic attacks for which he did not seek mental health treatment during service. The Board notes that the Veteran is competent to describe symptoms he experiences, including hearing voices and feeling anxiety, which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, while the Veteran's reports vary slightly concerning the onset of his psychiatric symptoms, his reports all indicate an onset relatively near in time to his discharge from active service, which the Board generally finds credible. Moreover, the post-service treatment records vary slightly as to when the Veteran was first treated and diagnosed with a psychiatric disorder. In this regard, the first treatment of record is dated June 1994 and reflects that the Veteran was brought into the Emergency Room by his mother who had noticed him to be "turned out" and speaking incoherently for 15-to-30-minute periods in the past weeks. He reported hearing voices/feeling depressed for the past two to three weeks but also that his grades had decreased in the past year. He was assessed with psychosis not otherwise specified that appeared schizophreniform. Thereafter, a September 1996 VA treatment record reflects that the Veteran had been treated in the mental health clinic since September 1994 for psychotic symptoms of relatively recent onset. On the other hand, April 2007 and September 2007 VA treatment records reflect that he was diagnosed with schizophrenia in 1992 while January and February 1997 VA treatment records reflect the Veteran had been under treatment with his psychiatrist since 1993. Significantly, in support of the Veteran's claim, his mother submitted a statement dated April 2019, where she reported that the first alarming conversation with the Veteran occurred in 1992, approximately six months to one year after his discharge from service where he mentioned that writings had appeared then disappeared on the wall of his apartment. She stated that the Veteran's conversations began to get increasingly bizarre and that in 1992, he began to stop bathing regularly, cleaning his apartment, and paying his bills. The Board finds that this statement lends credibility to the Veteran's reports of an onset of psychiatric symptoms in and within one year of his discharge from service and serves as competent and credible evidence in support of this claim. Even more, December 2001, December 2002, December 2003, March 2004, November 2004, November 2005, and November 2006 VA treatment records signed by the Veteran's VA treating psychiatrist, who treated the Veteran for over a decade, reflect that the Veteran was with schizophrenia and had been ill since his discharge from the service. Thereafter, an April 2011 psychiatry progress note, authored by the same treating psychiatrist, reflects the Veteran's report that he was part of an accidental tear gas exposure during training and had anxiety attacks during active duty, and that the Veteran was trying to obtain these records because if they were documented, a case could be made that the Veteran's schizophrenia started in the service. The psychiatrist noted that anxiety could be a prequel to the Veteran's psychosis and that he had symptoms related to this tear gas incident. The Board finds this probative evidence in support of the Veteran's claim given that these notations were completed by a treating psychiatrist whose understanding of the Veteran's psychiatric disorder is supported by a treating relationship dating back to at least 1994. The Board acknowledges that the November 2021 VA examiner opined that the Veteran's diagnosed psychiatric disorder was less likely than not related to his active service because the records show active treatment and diagnoses in 1994. The examiner acknowledged the Veteran's mother's statement that his challenges escalated in 1992, which is earlier than the record reflects the Veteran received formal treatment but noted that her statement is supportive of the general timeframe origin beginning while the Veteran was a Naval Reservist. He also noted that he would not engage in speculation as to the origin of the Veteran's disorder and that there was no evidence in the record indicating the presence of notable anxiety or treatment during active service. This opinion appears to focus on whether the Veteran's records show in-service psychiatric treatment. Moreover, the VA examiner did not explain whether the Veteran's disability could have manifested within a year of his discharge from service or whether his diagnosed psychiatric disorder could be related to his reports of psychiatric symptomatology from service to 1994. Although the examiner stated that the Veteran's mother's statement is supportive of the general timeframe origin beginning while the Veteran was a Naval Reservist, a timeframe origin beginning in 1992 would indicate the Veteran's disability manifested within a year of his discharge from service. As such, the Board assigns less probative weight to this opinion. Based on the evidence of record, the Board finds that the Veteran's report of psychiatric symptomatology since separation from service, in the context of the lay statement from his mother observing symptomatology within a year of his discharge from active service, multiple treatment reports over several years from his VA treating psychiatrist noting he had been ill since his discharge from service, and subsequent psychiatric diagnoses and hospitalizations soon after service, places in equipoise the question of whether the Veteran's current psychiatric disorder is related to service. Thus, resolving all reasonable doubt in favor of the Veteran and given that he was diagnosed with a psychiatric disorder relatively shortly after his service and that the post-service treatment records demonstrate that the Veteran's psychiatric disorder continued to present, the Board accepts that he has experienced continuous symptoms since service, and that a nexus has been shown on this basis. For these reasons, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder, to include schizoaffective disorder, is granted. See 38 U.S.C. § 5107. 2. Entitlement to service connection for a sleep disorder The Veteran contends that he has a sleep disorder related to his service. However, following review of the evidence of record, the Board finds that service connection for a sleep disorder must be denied because the Veteran has not been diagnosed with a sleep disorder that warrants separate service connection. In so finding, the persuasive evidence of record weighs against a finding that the Veteran has a sleep disorder that is separate and distinguishable from his now service-connected psychiatric disorder as the evidence of record shows that the Veteran's sleep impairment is a symptom of his psychiatric disorder. Specifically, "chronic sleep impairment" was identified by the November 2021 VA examiner as a symptom of the Veteran's diagnosed psychiatric disorder. Moreover, although VA treatment records show the Veteran's complaints of trouble sleeping, these complaints are predominately made in the context of his psychiatric disorder. See e.g., August 1996 VA psychiatry treatment record (reflecting that the Veteran cannot sleep without medication and that he has symptoms of depression, insomnia, and sadness); May 2007 VA treatment record (reflecting that the Veteran was sleeping well but was taking a psychiatric medication for insomnia); October 2009 VA treatment record (reflecting the Veteran's report that benefits of his medications for schizophrenia include that the medication helps him sleep); August 2015 VA treatment record (reflecting complaints of insomnia in that he has not been able to sleep decently for the past four to five months which is thinks is due to having a white pill missing). Moreover, the medical evidence of record does not otherwise establish a separately diagnosed sleep disorder. Aside from the Veteran's several complaints of sleep impairment in the context of his psychiatric disorder, the record reflects a few reports of sleep difficulties related to apnea or nasal congestion. For instance, a January 2007 VA treatment record reflects that the Veteran's nasal congestion at night was making sleep difficult while a March 2015 VA treatment record reflects the Veteran's reports that he had a little trouble with apnea. Thereafter, a November 2017 VA treatment record also reflects that the Veteran reported feeling weak and tired and that a discussion of some of the possible causes of the Veteran's weakness and fatigue included the possibility of sleep apnea. The record further reflects that the Veteran did not think he ever had a sleep study although one had been recommended to him and that a family member had previously told him he snored. Despite these reports, the October 2021 VA sleep apnea disability benefits questionnaire (DBQ) presents a clear medical determination that the Veteran does not have nor ever had sleep apnea. The DBQ reflects that the Veteran had current symptoms of insomnia with a hard time falling asleep but did not have a formal sleep study nor history of CPAP use. The examiner specifically reiterated that no diagnosis of obstructive sleep apnea nor other sleep disorders had been rendered. The Board finds this opinion is probative and persuasive evidence against the Veteran's claim as the October 2021 VA examiner reviewed the Veteran's claims file and acknowledged his reports. Moreover, the Board finds no contrary competent medical evidence of record that presents the type of specialized findings pertinent to this diagnostic question at issue to indicate that the Veteran has been diagnosed with such a sleep disorder. The Board acknowledges that the November 2021 VA PTSD examination reflects the Veteran's report that he was recently diagnosed with sleep apnea but did not yet have a CPAP machine to use as well as his other reports of sleep apnea; however, the contemporaneous medical records, recent sleep apnea VA DBQ, and the broader set of medical evidence of record does not otherwise show that the Veteran has been medically diagnosed with a sleep disorder pathology during the pendency of this claim. To this point, the available evidence of record does not reflect that the Veteran underwent a sleep study while the Veteran has been provided opportunities to submit or identify private treatment records related to his claim. The Board notes that the Veteran is competent to report current symptoms and finds that the Veteran is competent to report that he has difficulty sleeping. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the Veteran's symptoms of difficulty sleeping are symptoms contemplated in his now-service-connected psychiatric disorder. A diagnosis of a distinct sleep disorder pathology to support this additional claim of entitlement to service-connected benefits requires specific diagnostic/clinical determinations which are outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). As a lay person, he is not competent to establish that he has a sleep disorder that is separate and distinguishable from his psychiatric disorder that is related to his service or to offer an opinion as to etiology of any current sleep disorder as the question regarding the etiology of such disability is a complex medical issue that cannot to be addressed by a layperson. See id. As such, the Board finds the Veteran's representations in this regard, to include that he has sleep apnea, to be of extremely limited probative value and the Board gives greater probative weight to the competent medical evidence as described above which relates the Veteran's symptoms to his now service-connected psychiatric disorder and does not reflect a diagnosis of sleep apnea nor other sleep disorder. Therefore, the Board finds that the Veteran's sleep impairment will be compensated under his rating for his psychiatric disability, and without, a separate distinguishable sleep disorder, separate and apart from his psychiatric disability, he cannot be assigned a separate disability rating without violating the rule against pyramiding. 38 C.F.R. § 4.14 (pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided). Accordingly, as the competent evidence of record fails to show that the Veteran has been diagnosed with a separate and distinct sleep disorder during the appeal period, his claim for service connection for a sleep disorder must be denied. See 38 C.F.R. § 3.303; McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."); Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability). REASONS FOR REMAND Entitlement to SMC based on the need for aid and attendance The Veteran seeks SMC based on the need for aid and attendance. Specifically, at the April 2019 Board hearing, the Veteran testified that although he lived on his own, his mother helped him a lot, to include with his bills, and that he received help from a homemaker who assisted him with cleaning, laundry, and shopping. See April 2019 Board hearing transcript, p. 22. The medical evidence of record also shows that the Veteran received assistance from a homemaker. See March 2010 and May 2021 VA treatment records. In light of this evidence, and the fact that the Veteran is now service connected for an acquired psychiatric disorder, the Board finds that an aid and attendance examination is warranted to more accurately assess the Veteran's needs and limitations. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated December 2021. 2. Then, schedule the Veteran for an appropriate VA examination to determine whether his service-connected disability causes him to be in need of regular aid and attendance of another person. The claims file should be made available to and be reviewed by the examiner. The examiner should assess the nature and severity of any of the Veteran's service-connected disabilities and the impact of these disabilities on his activities of daily living and whether he can leave his home, including whether his disabilities cause him to be unable to dress, undress, keep ordinarily clean and presentable, feed himself, attend to the wants of nature, or protect himself against the hazards or dangers incident to his daily environment. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. Complete rationale should include an explanation of the evidence used in support of the conclusion, as well as an explanation as to why such evidence supports the conclusion. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.