Citation Nr: 24005751 Decision Date: 02/03/24 Archive Date: 02/03/24 DOCKET NO. 15-08 181 DATE: February 3, 2024 ORDER Entitlement to service connection for schizoaffective disorder is granted. FINDING OF FACT The evidence supports a finding that the appellant has schizoaffective disorder that is related to an in-service assault. CONCLUSION OF LAW The criteria for entitlement to service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had active service from August 1976 to September 1976. He was separated from service after less than one month under the Trainee Discharge Program. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and October 2011 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified, through an interpreter, before the undersigned Veterans Law Judge at a hearing in October 2018. A transcript is of record. The Board remanded the appeal in November 2019 and denied the claim in a February 2021 decision. The appellant timely appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2021, the Court granted a Joint Motion for Remand (JMR), which vacated the February 2021 decision and remanded the matter for action consistent with the terms of the JMR. The Board denied the claim in a November 2022 decision. The appellant timely appealed the decision to the Court. In July 2023, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated that part of the November 2022 decision that denied service connection for a psychiatric disorder and remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to service connection for schizoaffective disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 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). Certain chronic diseases, such as psychoses, will be presumed related to service, absent an intercurrent cause, 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 (or within an applicable presumptive period) 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 appellant seeks service connection for a psychiatric disability diagnosed as schizophrenia or schizoaffective disorder. He asserts that his psychiatric disability is related to an assault that he reports occurred during service. At his hearing, the appellant testified that while he was sleeping, the drill sergeant came, punched him in the face, grabbed him by the shirt, kicked him in the groin, and dragged him down a flight of stairs. The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Evidence Service treatment records are limited, but silent for an in-service assault. The June 1976 report of medical history showed the appellant indicated he was in good health, with no reported health problems. The appellant's medical enlistment examination shows similarly normal clinical findings. Personnel records show the appellant was discharged September 1, 1976, due to an inability to speak and comprehend English. Service treatment records and personnel records do not contain an indication of the reported assault, or show treatment for injuries that could be attributed to the assault. In late September 1976, the appellant was admitted with symptoms of increasing restlessness, insomnia, aggressive tendencies, hallucinations, and suicidal tendencies. His memory was noted to be impaired for recent events. Physical examination was within normal limits. No previous hospitalizations or treatment was noted. Providers tentatively diagnosed schizophrenia, undifferentiated type. An undated medical certificate shows the appellant sought treatment for left testicular pain and swelling, starting about a week prior to the visit. The appellant reported a history of the condition before that had resolved, but indicated that the pain had come back again. Treatment providers assessed hernia pain with previous trauma. This record is undated, but it notes that the appellant was 21 at the time of treatment. The Board notes that the appellant turned 21 in November 1976, after his brief period of active service. The appellant filed a claim for service connection for hernia in December 1976. On that form was noted that "hernia was a result of kick in the testicles by Drill Sgt Phagan while in boot camp." Post-service treatment records reveal ongoing psychiatric treatment. A January 1, 1977 VA treatment record noted that the appellant was "admitted to our service because of [left] inguinal area as he said [he] received blunt trauma there and has a small varicocele." A January 5, 1977 VA psychiatric evaluation following an attempted suicide noted "patient had several difficulties [with] the sergeant of his company. He thought the other was chasing him all the time [and] refers that one day he was kicked by the sergeant in his genitals. Another day he was slapped by the sergeant again." A July 1977 psychiatric evaluation noted the Veteran reported that he had received a kick in the testicles from a sergeant while in service. Lay statements from the appellant's mother, father, schoolteachers, and pastor allege that he was of sound mind prior to his entrance into military service. Through her statements and testimony before the RO in August 1991, the appellant's mother noted that the appellant told her around the time of discharge from service that he had been beaten. He subsequently was hospitalized for his nervous condition. He also underwent a hernia operation which she believed was caused by his being kicked in the groin and stomach. She further indicated her opinion that her son's nervous disorder stemmed from the traumatic events that he experienced during active service. The record contains a statement from V.O. A., who states he served with the appellant and that he heard about him being assaulted in the middle of the night by a sergeant a few days after the event; he does not specify what part of the appellant's body was injured. In May 1979, the appellant appeared for a psychiatric evaluation. He was noted as very anxious and depressed. In July 1980, progress notes indicated the appellant eloped from the hospital. He was noted as nervous, withdrawn, and aloof. A July 1992 private addendum opinion affirmed that the appellant's schizophrenia was prescribed by the traumatic picture that occurred in September 1976. The examiner noted that schizophrenia has a hereditary component, but can present in stressful situations such as an accident. He opined that the appellant, according to family members, was assaulted and discriminated against while in service. He concluded that this traumatic event precipitated the occurrence of the appellant's schizophrenia. In October 1996 hearing testimony, the appellant reported having been "hit" in the testicles by his sergeant while sleeping. The appellant testified that after he was hit in the testicles he could not stand up. The appellant was afforded a VA examination in February 1999. The examiner diagnosed schizophrenia as the correct and current neuropsychiatric condition. The examiner opined that the symptoms and behavior described on the available psychiatric records clearly describe a severe neuropsychiatric condition that manifested after military service. The examiner explained that there is no evidence of any event occurring during service which has been claimed as the onset of his condition. The examiner indicated that he had considered the possibility that the appellant's nervous condition could have been present prior to service and the possibility that it is as likely as not that the condition was aggravated by his brief active military experience, but indicated that there is no evidence, other than speculation based on the statements given by others, that there was any event responsible for the onset of his condition during service. The appellant underwent a private psychiatric evaluation by Dr. A.G. in January 2008. Dr. A.G. opined that the appellant's clinical picture is compatible with the presence of a traumatizing factor during his life process. He indicated that the appellant's level of function was adequate before entering the Armed Forces and cognitive and mental picture was affected in 1976, during the training process. Dr. A.G. indicated that the appellant's present signs compatible with the sexual military trauma screening, where the Veteran answered affirmatively on several premises. The appellant submitted a private medical opinion dated in November 2018 from Dr. J.R., his treating provider in support of his claim. Dr. J.R. indicated that the schizophrenia was related to an onset or events while in service and that the appellant began with symptoms after the aggression. He expressed the rationale as "[s]tarted [with] aggression had surgery done but symptom has not improved." In an addendum opinion dated in October 2020, Dr. J. R. again noted that the appellant reported he was assaulted in August 1976 while in basic training and sustained trauma to his groin. Dr. J. R. stated, "[s]ubsequently he underwent surgery on his left testicle. He at the same time developed schizophrenia for which he has had multiple hospitalizations, and procedures such as shock therapy." In November 2022, the appellant submitted a private medical opinion from Dr. C.G., a psychiatrist who reviewed the record and interviewed the appellant and his daughter. She stated that the appellant had clearly suffered from schizoaffective disorder, depressed type, since service. She stated that the appellant had consistently described an assault by a sergeant during his service. "Given that he entered military service without any preexisting mental health diagnoses and was hospitalized within a few days of being dismissed from training, it is more likely than not that his psychotic break was the direct result of his service-related stressors." She stated VA had failed to recognize that the appellant was assaulted by his drill sergeant during basic training, as there is no official record. She noted that while the appellant did not seek medical treatment or report the incident to his superiors after it occurred, "expecting a traumatized young adult whose primary language is not English to report a physical assault by a superior within a matter of days ignores the military culture of that era and Latino machismo. Not only was [the appellant] concerned about being seen as unmasculine (or possibly gay), his language barrier further limited his ability to process his assault and the ramifications of declining a separation exam prior to his discharge." Dr. G. stated that the appellant entered military service in good health with no preexisting mental illness. "He has consistently reported experiencing an in-service assault at the hands of his drill sergeant, which has been corroborated by a peer as well as his family and community members who witnessed his behavioral changes. He was hospitalized for a severe psychotic break immediately following his discharge from service. Since his discharge, [the appellant] has experienced severe psychiatric symptoms, including suicidal ideation with multiple attempts, persistent hallucinations, and an inability to function socially, which have left him unable to work or complete his activities of daily living since his military discharge in September 1976." In October 2023, another private opinion was received from Dr. G. She again stated that the appellant had clearly suffered from schizoaffective disorder, depressed type, since service. She repeated many of the statements from her earlier opinion, and also addressed inconsistencies in the appellant's accounts of his in-service assault that had been noted in the Board's previous decision: I disagree with the opinion that [the appellant]'s account of the in-service assault has "differed significantly" over the years. At times, he described being kicked in the testicles by his sergeant, at other times being "hit" in the testicles, and at other times describing the incident as a sexual assault. I see no significant discrepancy between his use of the terms "kicked" and "hit" in this context; "kicked" is merely a more specific descriptor of the attack. It is also worth noting that many of [the appellant]'s descriptions of his attack have been translated from Spanish to English, which may have contributed to the varying language used to describe it. It's as likely as not that his reference to a sexual assault refers to the same physical assault to the genitals he has consistently described, and that as he grew more comfortable with various providers and examiners, he was increasingly able to articulate the sexual nature of the harassment he experienced. She further noted that: While he did not describe this as a sexual assault until much later in his treatment history, it is worth noting that a sexual component to his inservice harassment was suggested as early as an August 1978 statement from his mother, which indicates the sergeant was "interested in his person." [The appellant]'s personal physician, Jerry Ramos, MD, found [the appellant]'s reports credible and provided two separate statements (2018 and 2020) connecting the in-service assault with his psychotic illness. In my opinion, [the appellant]'s accounts haven't changed, but his terminology has become more specific as he gained more trust in providers and received more specialized screening and consultation regarding MST. The existence of the assault and the evolution of his ability to express details are supported by multiple records. Analysis The Board concludes that the evidence supports a finding that the appellant's psychiatric disability, most recently diagnosed as schizoaffective disorder, is related to an in-service injury or event, specifically his being physically attacked by his drill sergeant. Service connection may be granted for a psychosis that manifests to a compensable degree within one year from separation. The appellant received treatment for schizophrenia in September 1976, approximately one month after his discharge from service. However, the appellant did not serve 90 days or more. Thus, entitlement on a presumptive basis in this case is prohibited. 38 U.S.C. §§ 1131, 1137; 38 C.F.R. §§ 3.307 (a)(1), 3.309. The appellant is competent to report that he suffered an assault during service, and his reports, which were first noted in November 1976, just over two months after separation from service, are found to credible as they have not differed in the central respect of a blow to the genitals by his drill sergeant. Based upon the evidence discussed above, the Board finds that the allegations of in-service physical and mental abuse made by and on the appellant's behalf are generally credible. The favorable nexus opinions of record from Drs. A.G., J.R., and C.G. are probative as they are based on the credible historical accounts of an in-service assault and provide rationales for their conclusions. Dr. C.G.'s two opinions in particular are particularly persuasive as they discuss in detail the evidentiary record and are based in part on an interview with the appellant. Resolving reasonable doubt in the appellant's favor, the Board finds the favorable nexus opinions are at least as persuasive as the February 1999 VA examiner's unfavorable opinion. In sum, the evidence demonstrates that the appellant was assaulted by his drill sergeant during his military service and, within weeks of his separation from service he required treatment for severe psychiatric symptoms. He was treated shortly after service for varicocele and reported as early as November 1976 that he had been kicked in the genital area by his drill sergeant. The competent medical opinions of record have attributed the appellant's schizoaffective disorder to the in-service physical assault. Thus, the competent and credible evidence is at least in relative equipoise as to a finding that the appellant's schizoaffective disorder is attributable to service. For these reasons, service connection is warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mazzucchelli, Michael G. 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.