Citation Nr: 0001596 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-12 417A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had active service from October 1968 to July 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that in the August 1998 substantive appeal (Form 9), the veteran indicated that he desired a Travel Board hearing at the local RO. However, in correspondence the following month, the veteran withdrew this request. In view of the foregoing, the Board is satisfied that the veteran's Travel Board hearing request has been withdrawn. 38 C.F.R. § 20.704(d), (e) (1999). The veteran's appeal originally included the issues of entitlement to service connection for schizophrenia and post- traumatic stress disorder (PTSD). The Board notes that a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. During the January 1999 personal hearing, the veteran testified that he wanted to withdraw the issue of entitlement to service connection for PTSD from appellate review. The Board finds that this constitutes the requisite "writing" to withdraw the issue. Consequently, the only issue currently before the Board for review is entitlement to service connection for schizophrenia. Accordingly, the Board will limit its consideration to that issue. FINDINGS OF FACT 1. A January 1999 private medical report relates the veteran's current schizophrenia to his period of active duty. 2. It is plausible that the veteran's schizophrenia may be linked to service. CONCLUSION OF LAW The claim of entitlement to service connection for schizophrenia is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well-grounded claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Service personnel records indicate that in March 1970, the veteran was found guilty of being absent without leave, and was confined to hard labor for two months. He was discharged from service under honorable conditions in July 1970. Service medical records are negative for diagnosis or treatment of schizophrenia, and the July 1970 separation examination report notes a normal psychiatric evaluation. In April 1984, the veteran filed a claim of entitlement to service connection for "nerves," indicating that the disorder had its onset in 1968. The veteran failed to appear for a June 1984 VA examination, and his claim was denied in August 1984. He again failed to report for a VA examination in September 1984, and the RO continued the denial of service connection the following month. Private medical records show treatment for psychiatric complaints from February 1985 to July 1985. A February 1985 record reports that the veteran recently began hearing voices, and last heard these voices four days earlier. The examiner opined that the veteran may have been "chronically paranoid." A March 1985 record notes decreased paranoia, and records dated from March 1985 to July 1985 indicate that the veteran remained relatively stable. A July 1988 private mental status evaluation notes that the veteran had been in jail for approximately one week for disturbing the peace. At that time, the veteran related that he had been "living on the street" for the previous two months. He stated that he would like to work, but indicated that he "simply cannot get along with his employers or other employees." He gave a history of psychiatric treatment since 1985, but reported that he had never been committed or hospitalized for psychiatric treatment. While Prolixin was prescribed in 1985, the veteran had not taken any psychotropic medication since 1986. Chlorpromazine was prescribed while the veteran was in jail. The final assessment was chronic schizophrenia, schizoaffective type and depressed. A July 1992 private psychiatric report notes a "long history of major psychiatric problems." The record reports that the veteran had been arrested "on more than one occasion," and was previously admitted to several psychiatric institutions. On mental status examination, the veteran was noted to be "somewhat more paranoid" than during his previous evaluation in May 1992. The diagnostic impression was schizophrenic reaction of the paranoid type. A February 1995 private psychological report notes that the veteran shot and killed a motel clerk in April 1992, over a dispute involving reservations. According to the record, he was in a paranoid delusional state in which he believed that multiple hotels had a conspiracy against him, and he would not be able to get lodging elsewhere. He feared that he would be forced to live on the street, where he would be beaten and tortured by other homeless people. While the veteran was convicted of second degree murder with enhancement and use of a semi-automatic pistol, he was found not guilty by reason of insanity. He was committed to a state hospital in June 1993. The final impression was AXIS I : Paranoid schizophrenia; dysthymia, late onset; cocaine abuse; marijuana dependence. AXIS II : No diagnosis. AXIS III: Defer to physician. AXIS IV : Psychosocial stressors - incarceration in inpatient hospital. AXIS V : Current GAF - 57; Highest GAF Past Year - 35. A November 1996 private hospital report notes a diagnosis of AXIS I : Schizophrenia, paranoid type; and other substance abuse. AXIS II : No diagnosis. AXIS III : None. AXIS IV : Interaction with the legal system/crime problems - incarceration. AXIS V : Current GAF - 60; highest GAF Past Year - 60. According to a record dated in May 1997, the veteran started attending a conditional release program in March 1996. The current diagnosis was AXIS I : Schizophrenia, paranoid type; and other substance abuse. AXIS II : No diagnosis. AXIS III : None. AXIS IV : Legal. AXIS V : Current GAF - 60. The veteran filed a claim of entitlement to service connection for schizophrenia in September 1997, asserting that his psychiatric disorder had its onset during service. Private medical records show outpatient treatment for the veteran's psychiatric disorder from 1997 to 1998. During a January 1999 personal hearing, the veteran testified that he was assaulted several times during service, which led to depression and drug use. Transcript (T.) at 3. He was later convicted of desertion, and was incarcerated for approximately two months. T. at 3 and 8. The veteran reported that while apathy and depression were noted during service, schizophrenia was not diagnosed. T. at 8. The veteran testified that he had been hospitalized for treatment of his psychiatric disorder several times since his separation from service. T. at 5. He was initially admitted to St. John's Hospital in Santa Monica, California in 1978 or 1979, and paranoid schizophrenia was diagnosed. T. at 2-3 and 11-12. He stated that he held approximately 10 jobs following his discharge from service, and last worked on a full-time basis in May 1986. T. at 7. Following hospitalization from 1992 to 1997, the veteran lived in a half-way house for approximately nine months. T. at 9. He currently lived on his own, and was taking vocational rehabilitation classes. T. at 9. The veteran received counseling twice a week, and was treating his schizophrenia with Prolixin. T. at 6-7. A January 1999 private report notes a diagnosis of paranoid schizophrenia, and indicates that the veteran was participating in the state's conditional release program. According to the record, the veteran requested that the examiner provide "any kind of information to support him in his suspicion that his current illness could have begun towards the end of his tenure in the U.S. Marine Corps." Citing the Diagnostic and Statistical Manual of Mental Disorders : Fourth Edition, the report notes that men typically develop schizophrenia in their early to mid 20s. While the onset of this disorder may be "abrupt or insidious," the majority of individuals display some type of prodromal phase manifested by the gradual development of a variety of symptoms, including social withdrawal, loss of interest in school or work, deterioration in hygiene and grooming, unusual behavior, and outbursts of anger. Based on her work with the veteran, the examiner stated that his personality structure and current disease process would be consistent with this gradual type onset. She opined that "one could conclude that [the veteran's] apathy, AWOL, and his appearance not being up to expected standards might be evidence of early signs of decompensation to schizophrenia." Analysis The Board finds that the veteran's claim of entitlement to service connection for schizophrenia is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In this case, the veteran claims to have experienced symptoms of schizophrenia in service. His statements with respect to his in-service symptoms must be accepted as true for the purpose of determining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). Several diagnoses of schizophrenia are of record, and a January 1999 private medical report suggests that the veteran's current schizophrenia had its onset during service. These, too, must be presumed to be credible for the limited purpose of establishing whether the claim of entitlement to service connection for schizophrenia is well grounded. Consequently, the veteran's claim for service connection for schizophrenia is well grounded, and VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). ORDER The claim of entitlement to service connection for schizophrenia is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for schizophrenia is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In essence, the veteran contends that he experienced symptoms of schizophrenia during his period of active duty, and a January 1999 private medical report suggests that current schizophrenia had its onset in service. As discussed above, the presumption of credibility in King applies only to the matter of the well groundedness of the claim. Once all of the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). To comply with the statutory requirements of 38 U.S.C.A. § 7104(d) to provide "reasons or bases" for its decisions, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), the Court held that credibility can be impeached generally by a showing of: "interest, bias, inconsistent statements, or, to a certain extent, bad character." For oral testimony, a hearing officer can consider: "demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness testimony and affidavits." For documentary evidence: "A VA adjudicator may properly consider internal consistence, facial plausibility, and consistency with other evidence submitted on behalf of the veteran." The Court has further held that in a merits determination, the lack of evidence of treatment may bear upon the crediblity of the evidence of continuity. Savage, 10 Vet. App. at 496. The record in this case is devoid of complaints, statements of medical history or clinical findings of a diagnosed psychiatric disability in service or for years thereafter. In conjunction with his claim, the veteran has advanced evidentiary assertions as to the history of symptoms of his claimed disability. To the extent those evidentiary assertions are not supported by clinical records, or are contradicted by findings or statements of history provided for treatment purposes, the probative weight to the accorded to those evidentiary assertions is an adjudicative, not a medical determination. The record shows that the veteran first asserted that he had a psychiatric disability in service in his 1984 claim, over thirteen years after his separation from active duty. In response to a request that he list all treatment for this disability post service, he identified only treatment in 1984. February 1985 documents referring the veteran for psychiatric evaluation contain a review of his past psychiatric treatment. It was noted that he had a history of schizophrenia, paranoid. One entry indicates his only prior recorded inpatient care was at the "Forensics Unit" from April 21 to July 25, 1983, and at "So. East Aug. Haw." from May 12-17, 1983. Another entry in February 1985 reflects that he had been hospitalized one year earlier at "Augustus Hawkins." There is a further reference to a three day or eleven day (the entry is ambiguous) hospitalization at "St. John's." When seen in February 1985, he stated for treatment purposes that he "recently" began hearing voices. He provided no history of such symptoms extending back to service. A detailed history recorded in July 1988 in conjunction with an examination by a psychologist is conspicuous for an absence of any recorded assertion by the veteran of the presence of any psychiatric symptoms in service or for years thereafter. When the veteran submitted a claim for service connection in September 1997, the RO responded with a request that he identify all post service treatment for the claimed disorder. The veteran provided a release authorization for one facility, although he did not indicate the date of treatment. In another document dated in September 1997, he listed a series of treating facilities beginning in with St. John's Hospital, Santa Monica, CA. in 1978 and extending to March 1997. Additional records developed by the RO included a psychological assessment in February 1995 that contained an extensive review his history. He reported a "General Discharge under psychiatric conditions" from service. He stated he did not like the training regime because the trainees were assaulted and he developed an apathetic attitude. He admitted an extensive history of drug use, specifically post service. He also reported a long history of hallucinations. His initial hospitalization reportedly was in 1979 after a domestic dispute. In 1982, he was seen for acting out and being a "little paranoid." He reported consistent paranoid thoughts and hearing voices from 1986 to 1993. He often associated these with drug use. The evaluator noted the veteran's history of dropping out of high school after an altercation with a teacher, development of an apathetic attitude in service and dismissal from law school post service, reportedly for failure to maintain grades, followed by self defeating drug use as "perhaps as an attempt to medicate his depression and mask his psychotic symptoms." At the January 1999 personal hearing, the veteran testified that he initially received treatment for schizophrenia in 1978 or 1979 at the St. John's Hospital in Santa Monica, California. A review of the record also reveals that the veteran began receiving benefits from the Social Security Administration (SSA) in December 1988, which were suspended in February 1995. After a preliminary review of the record, it does not appear that the RO has attempted to obtain a copy of the veteran's Social Security records. There are also indications in the record of the potential existence of additional post service treatment records that may also contain findings and history pertinent to this claim. The Board notes that these records may be highly relevant to the disposition of the veteran's claim, both for the purpose of establishing key facts and for purposes of evaluating the probative value of the veteran's evidentiary assertions and other evidence of record. In this regard, the Court has held that the duty to assist requires that the VA obtain all relevant facts, not just those for or against the claim, and that where the records are in the possession of the Federal Government, VA is responsible for securing the material. Murphy v. Derwinski, 1 Vet. App. 78, 82 (1990). In the alternative, if there was in fact no SSA award or no records, this should be documented in the record. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In light of the foregoing, the Board finds that further development, as specified below, is warranted. Accordingly, the case is REMANDED for the following development: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. In order to ensure that all relevant treatment records have been secured, the veteran should be requested to identify all sources of treatment for his psychiatric disorder that are not currently a part of the record. In addition, the RO should review and consider the above discussion of the reported dates and places of post service treatment. After any necessary information and authorization are obtained from the veteran, outstanding records, VA or private, inpatient or outpatient, should be obtained by the RO and incorporated into the claims folder. In particular, the RO should attempt to obtain treatment records from St. John's Hospital in Santa Monica, California in 1978 or 1979, as well as the reported treatment in 1983-1985, as documented in the 1985 treatment records. 3. The RO should contact the Social Security Administration (SSA) and request a copy of any decision on the merits of a claim and copies of any medical records reviewed in reaching that determination. If the SSA has made no decision or has no records, this should be documented in the record. The attention of the SSA should be invited respectfully to 38 U.S.C.A. § 5106 (West 1991). 4. After the development in paragraphs 2 and 3, but not dependent upon whether these actions actually result in the production of additional medical records, the appellant should be afforded a current VA psychiatric examination. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1 (1999), copies of all pertinent medical records in the veteran's claims file or, in the alternative, the claims file, as well as a copy of this remand must be made available to the examiner for review in conjunction with the examination. The examination report should include a detailed description of the appellant's symptoms, clinical findings, and associated functional impairment. Further, the examiner should address the following: a) the diagnostic classification of all current psychiatric pathology; and b) The degree of medical probability, expressed in percentage terms, that any current psychiatric disorder is causally linked to the veteran's service. In this context, it would be helpful to the Board for the physician to discuss the significance of any "prodromal phase" of the disability and comment upon: (i) what the medical literature reflects about the duration of the "prodromal phase"; (ii) assuming the "prodromal phase" in this case could be viewed as extending back to the period of service as indicated in the January 1999 medical report, whether the "prodromal phase" (or perhaps even the active presence of psychotic symptoms) also extended back to the veteran's high school days, as apparently indicated in the February 1995 medical report, and if the "prodromal phase" or active phase extended back to the veteran's high school days, whether there was any increase in disability beyond the nature progress of the disease during service; and (iii) whether a medical opinion as to whether the "prodromal phase" or active phase of the psychotic disability existed as early as the period of service, or prior to service, is a matter of speculation on the record as it now exists. c) what is the relationship, if any, of any abuse of substances, including specifically cocaine and marijuana, to the development of any mental disease now present. A comprehensive report, which represents consideration of the aforementioned factors, as well as the history of the veteran's psychiatric disorder, should be provided. Any opinions expressed must be accompanied by a complete rationale. The veteran is advised that this examination may provide findings and opinions that are vital to his claim and that a failure to report and cooperate with the examination may have adverse consequences to his claim. Derwinski v. Connolly, 1 Vet. App. 566 (1991). 5. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed in its entirety. In particular, the RO should review the requested examination report and the required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand. If any development requested above has not been furnished, including any requested findings and/or opinions on examination, remedial action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should re- adjudicate the issue of entitlement to service connection for schizophrenia. If the veteran's claim remains denied, he and his representative should be provided with a Supplemental Statement of the Case. The applicable response time should be allowed. The case should then be returned to the Board for further review. No action is required of the veteran until he is notified. The purpose of this REMAND is to accomplish additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Richard B. Frank Member, Board of Veterans' Appeals