Citation Nr: 22045705 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 18-15 859 DATE: August 11, 2022 ORDER Entitlement to service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to special monthly compensation (SMC) based on aid and attendance prior to September 25, 2020, is remanded. FINDING OF FACT The competent medical record of evidence is in relative equipoise as to whether the Veteran's diagnosed schizophrenia, paranoid type, is causally related to service. CONCLUSION OF LAW The criteria for service connection for schizophrenia, paranoid type, have been met. 38 U.S.C. §§ 1110; 5107, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1974 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (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 disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For certain chronic disorders, including psychoses, such as schizophrenia, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to service connection for an acquired psychiatric disability is granted. At the outset, the Board notes that based on the evidence of record, a positive nexus has been rendered for a diagnosis of schizophrenia, paranoid type, as having been causally related to service. However, an April 2022 Supplemental Statement of the Case (SSOC) issued by the RO denied the issue, noting that an April 2022 VA examiner opined that it is less likely than not that the psychiatric disability manifested within one year following military service. In a May 2022 correspondence, the Veteran's attorney argued against the continued denial of the claim, citing a Colvin violation in the April 2022 SSOC in direct opposition to the favorable, April 2022 VA mental disorders examination opinion made by a psychologist. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As the Board's review of the appeal is de novo, no further discussion is needed regarding the rationale or appropriateness of the RO's determination in April 2022 SSOC. The Board highlights, however, the RO's factual finding that the evidence of record shows a diagnosis of schizophrenia in March 2003 and acknowledged the positive nexus of record. Given this, the Board declines to remand the issue for yet another etiological opinion. As such, turning to the elements of establishing service connection, the record reflects a current diagnosis of schizophrenia, paranoid type, as reflected in the April 2022 VA mental disorders examination. Furthermore, based on the lay testimony of record, the Veteran contends that his condition was caused by racial tension and being jailed for 59 days in service. The Veteran's military record notes a Court Martial Order based on an incident that took place on or about August 19, 1974, where it is indicated that the Veteran pushed his superior commissioned officer aside. At the November 2021 Board hearing, the Veteran testified regarding the in-service incident, stating that he had gotten into a dispute with a fellow airman, was called a racial slur, and was later disciplined due to an incident with his captain. The Veteran testified that he was jailed for 59 days, at which time he could not go anywhere, "could not breathe right", could not do anything or leave out of his room. Thus, the Board finds that the first two Shedden elements are satisfied. Shedden, 381 F.3d at1166-67. Next, there is no evidence of record to indicate a finding that suggests that the Veteran's schizophrenia, paranoid type, likely existed prior to entering service as the Veteran's report of medical examinations and report of medical history are silent for such. The Veteran's service treatment records (STRs) are negative for a diagnosis of any psychiatric disorder. An August 1974 STR notes the Veteran's complaint of sleeping during times he was supposed to be at work. While medical evidence indicates that the Veteran's mental disability manifested in his 20's, the post service evidence of record does not clearly demonstrate an exact age or date of onset of the disability as having been rendered in service or documented within one year of the Veteran's separation of service, a date of November 1975 for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. Thus, the Veteran is not entitled to presumptive service connection. The Board finds that the post service medical evidence of record documents the Veteran's mental health treatment at least starting in 2002. October 1984 treatment records note the Veteran was sick, had a blood infection and also was treated by a doctor starting in April 1984, but the problem is not listed. A November 2002 VA medical center (VAMC) mental health consult notes that the Veteran felt that he was depressed after divorce in 1974. A January 2003 VAMC treatment record notes that the Veteran reported that he heard his captain and sergeant making derogatory statement about him since his service in the military. The psychologist noted that he first thought the Veteran was reporting negative thoughts, but then noted that the Veteran clearly reported hearing these voices. The psychologist noted that during the discussion, the Veteran became very upset and was frankly paranoid. The psychologist also noted that the Veteran reported seeing things. A February 2003 VAMC treatment record reflects an assessment of depression made by a nurse practitioner, while a late February 2003 record reflects that Dr. E.H. noted that he interviewed the Veteran regarding auditory hallucinations. Dr. E.H. found that the Veteran did indeed appear to suffer from auditory hallucinations which appear to have been present since his 20's, of which he typically heard the captain and drill sergeant who he feels persecuted him telling him, "[Y]ou're not going to make it in this world". Dr. E.H. noted an assessment of probable paranoid schizophrenia. A March 2003 VAMC treatment record by Dr. E.H., noted that the Veteran continued to experience occasional auditory hallucinations, but these had become "good voices". The Veteran underwent an in-person VA mental disorders examination in April 2022. The psychologist diagnosed the Veteran with schizophrenia, paranoid type. The psychologist further found that the Veteran did not meet the criteria for PTSD and any symptoms of depression and/or other symptoms of bipolar disorder are subsumed under this diagnosis. The psychologist opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness and that it is as least as likely as not that any acquired psychiatric disability diagnosed as schizophrenia, paranoid type, manifested within one year following separation from service. The psychologist rationalized that the evidence shows diagnosis of paranoid schizophrenia, review of the records shows a history of seeing his drill sergeant and delusions related to the military, and he described similar symptoms at present. The psychologist found that the Veteran had no health issues prior to military service, got into a fight with another airman in service, a racial slur was used against him, the Veteran choked the airman, then the Veteran was detained for 59 days in jail, and now has clear symptoms of schizophrenia. The psychologist further noted that in 2003, Dr. E.H. noted that the Veteran does indeed suffer from auditory hallucinations, and these appear to have been present since his 20's most consistent with the diagnosis. The psychologist indicated that that this is most consistent with a diagnosis of schizophrenia, paranoid type, which does appear to be related to his military service. Accordingly, the evidence reflects that it has been explicitly found by the April 2022 VA examining psychologist that the Veteran's schizophrenia, paranoid type, at least as likely as not was incurred in or caused by the claimed in-service event. The psychologist dated the symptoms back to the Veteran's 20's and rationalized that the symptoms are most consistent with the diagnosis. The rationale is factually consistent with the evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). While the exact age and year of confirmation of the diagnosis is not established, the competent medical record of evidence demonstrates that the Veteran's diagnosed schizophrenia, paranoid type, is causally related to service. Id. There are no adequate opinions to the contrary. The opinion does not eliminate all doubt with regards to the etiology of the Veteran's schizophrenia, paranoid type, but the opinion places the evidence in equipoise as to whether the Veteran's schizophrenia, paranoid type, is related to service. As such, the evidence is in a state of relative equipoise and, therefore, requires the Board to resolve all doubt in favor of the Veteran. Accordingly, entitlement to service connection for schizophrenia, paranoid type, is granted. 38 U.S.C. §§ 1110; 5107, 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS FOR REMAND Entitlement to SMC based on aid and attendance prior to September 25, 2020, is remanded. Remand is necessary to adequately develop the Veteran's claim for SMC based on aid and attendance and to obtain a medical opinion. The Board finds that the record contains Social Security Administration (SSA) inquiries of which the underlying SSA medical documents are not of record. These records, if available, may aid in deciding the claim. Additionally, the Board finds that an opinion regarding whether the Veteran's mental disability symptoms caused the need for aid attendance with activities of daily living prior to September 25, 2020, is necessary. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350. The current medical evidence does not clearly indicate and/or is conflicting as to whether SMC benefits are warranted based on any of the Veteran's service-connected disabilities, including his now service-connected psychiatric disability. As such, a medical opinion is warranted. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the claims file. 2. Request all documents pertaining to any application by the Veteran for Social Security Administration disability benefits, including the medical records considered in deciding the claim. If any requested records are unavailable, the Veteran and his representative should be notified of such. 3. Thereafter, forward the entire claims file to a physician(s) with sufficient expertise to provide an opinion regarding the Veteran's need for aid and attendance prior to September 25, 2020. The claims file must be made available to the examiner. Examination of the Veteran is left to the examiner's discretion. All pertinent symptoms and findings must be reported in detail. Following review of the evidence of record, the clinical examination results, and the Veteran's statements, the examiner must address the following: (a.) Identify the extent to which the Veteran's service-connected disabilities impacted his capability for self-care prior to September 25, 2020. The examiner's assessment must include, but is not limited to, evaluation of such conditions as: the Veteran's ability or inability to dress or undress himself or to keep himself ordinarily clean and presentable; his ability or inability to feed himself; his ability or inability to attend to the wants of nature; and any incapacity, physical or mental, which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. The clinician is asked to directly address the Veteran's reported mental disability symptoms of problems with his memory and the effects on the Veteran's need for assistance with daily activities, including needing reminders to take medication prior to September 25, 2020. (Continued on the next page) A detailed rationale for all opinions must be provided. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.