Citation Nr: 0727383 Decision Date: 08/31/07 Archive Date: 09/11/07 DOCKET NO. 04-42 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant, M.G., J.H. ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from August 1997 to August 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified before the undersigned at a Board hearing at the RO in April 2007. FINDING OF FACT The veteran currently suffers from an acquired psychiatric disorder and there is competent medical evidence establishing that it was incurred during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran has claimed entitlement to service connection for an acquired psychiatric disorder. Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303(b). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychosis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.384, as in effect August 28, 2006, defines the term 'psychosis' to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. See 71 Fed. Reg. 42, 785 (July 28, 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that service connection is warranted for an acquired psychiatric disorder. There is no evidence of an acquired psychiatric disorder in the service medical records. The records were silent as to complaints of, diagnosis of or treatment for any mental disorder. Service connection may be granted, however, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There is competent evidence of the current existence of a mental disorder. The first competent evidence of record of the presence of an acquired psychiatric disorder is dated more than one year after the veteran's discharge. Private hospitalization records dated in December 2001 include a discharge diagnosis of acute psychosis. It was written that the veteran had a severe nervous breakdown while attending a bible school. The veteran reported that he had some intense mental reactions in the past in which he was preoccupied with disturbing thoughts and had a sense of thought broadcasting. Also associated with the claims file are VA and private clinical and hospitalization records which include diagnoses of mental disorders including schizoaffective disorder and bipolar in January 2005, major depression with psychotic features in June 2004, bipolar with psychosis in February 2004 and schizophreniform disorder in January 2002. Additionally, in August 2004, the Social Security Administration determined that the veteran was disabled beginning in August 2001 due to schizophrenic, paranoid, and other psychotic disorders. There is competent evidence of record demonstrating that the veteran underwent personality changes while on active duty. Associated with the claims file are numerous lay statements attesting to changes the authors observed in the veteran's personality while he was on active duty and thereafter, particularly within the first year of the veteran's discharge. Lay persons do not have the necessary medical training and/or expertise to give a probative opinion on the determinative issue of medical causation - to relate the veteran's mental disorder to his military service. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay persons are competent to report on differences in the veteran's behavior they observed which occurred while he was on active duty and shortly thereafter. Competent lay evidence is any evidence not requiring that the proponent to have specialized education, training, or experience. Lay evidence is considered competent if it is provided by a person who has knowledge of facts or circumstances and who can convey matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2). Lay statements can be used to provide a factual basis upon which a determination could be made that a particular injury occurred in service, but not to provide a diagnosis or a medical opinion linking that in-service disease or injury to a current disability. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). There is competent medical evidence which links a currently existing acquired psychiatric disorder to the veteran's active duty service via the lay statements. In December 2005, M.B.G., M.D., a private psychiatrist, wrote that he was treating the veteran for a chronic psychotic disorder diagnosed as schizoaffective disorder. He noted that, since the veteran was in the U.S. Army at the onset of the illness, the veteran should qualify for some VA benefits. In July 2006, the physician wrote that he had reviewed a complete copy of the veteran's claims file which included the service records. He opined that the veteran was likely as not displaying premorbid symptoms of a psychotic disorder variously diagnosed as bipolar or schizophreniform disorder prior to December 2001 but he could not find any written evidence of this. The physician noted that, according to family members and friends, the veteran had symptoms of mood problems and changes in behavior prior to December 2001. He reported that there was almost always some sort of unusual behavior or personality traits that precede the onset of psychiatric disorders and in the veteran's case, this could have been his preoccupation with religion and/or paranoia. In April 2007, M.B.G., M.D. testified before the undersigned. When asked what was the probability that the veteran's psychosis manifested itself while on active duty, the physician opined that this was more likely than not to have been the case. The record does not contain any contradictory evidence to refute the private physician's favorable opinions. The opinions are based on a review of all the evidence in the claims file and are supported by references to evidence in the claims file including the numerous lay statements attesting to changes the veteran underwent during active duty and in the year thereafter. The Board emphasizes it is the province of a trained medical professional, not the appellant or even VA adjudicators, to draw the conclusion that a currently existing acquired psychiatric disorder is related to service. Jones v. Brown, 7 Vet. App. 134 (1994). Accordingly, weighing all of the available evidence and affording the veteran the benefit of the doubt, the Board concludes that the criteria for service connection for an acquired psychiatric disorder are met - certainly when all reasonable doubt is resolved in his favor. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. As the Board is granting service connection for an acquired psychiatric disorder, there is no need to discuss compliance with VA duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). ORDER Service connection is warranted for an acquired psychiatric disorder. The appeal is granted subject to the laws and regulations governing monetary awards. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs