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Citation Nr: 0713881
Decision Date: 05/11/07 Archive Date: 05/25/07
DOCKET NO. 04-07 890 ) DATE
On appeal from the
Department of Veterans Affairs Regional Office in St.
Entitlement to service connection for paranoid schizophrenia.
Appellant represented by: American Legion
ATTORNEY FOR THE BOARD
A. Lindio, Associate Counsel
The veteran had active service from January 1969 until
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 2002 Rating Decision from
the Department of Veterans' Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida.
FINDING OF FACT
Paranoid schizophrenia was not manifested during service or
within one year of separation from service, and is not
causally or etiologically related to active service.
CONCLUSION OF LAW
Paranoid schizophrenia was not incurred in or aggravated by
active service, nor may it be presumed to have been so
incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103A,
5107 (West 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304,
3.307, 3.309 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
Before addressing the merits of the veteran's claim on
appeal, the Board is required to ensure that VA's "duty to
notify" and "duty to assist" obligations have been
satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002);
38 C.F.R. § 3.159 (2006). The notification obligation in this
case was accomplished by way of letters from the RO to the
veteran dated in November 2001, October 2002, March 2004, and
February and March of 2006.
The RO also provided assistance to the veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case. The
veteran and his representative have not made the RO or the
Board aware of any supporting information not in the record
of evidence that needs to be obtained in order to fairly
decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr.
Through his representative, the veteran asserts that he was
not assisted in the development of his claim in several
particulars. See Written Brief Presentation, dated April 17,
2007. First, he argues that he was not informed of the "type
of evidence" needed to support his claim. However, as
stated, the veteran was advised in accordance with the VCAA
in November 2001, October 2002, March 2004, and February and
March of 2006. To the extent that the veteran is contending
that there was a duty to "prove" the claim, his contention
is without merit, as the requirements under the VCAA do not
extend to a continuing duty on the part of VA to continuously
readvise the veteran of substantiating evidence. Locklear v.
Nicholson, 20 Vet. App. 410, 415 (2006); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd and remanded on
other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). 444 F.3d
1328 (Fed. Cir. 2006); affirmed 02-1077 (December 21, 2006).
The veteran also argues that his transfer from one military
field to another is suggestive of the onset of paranoid
schizophrenia, which should be further examined. However, as
noted below, there has been no evidence obtained to suggest
that the veteran was so reassigned on the basis of any mental
symptoms, and the veteran and his representative are not
medically qualified to render any opinion in this regard.
Instead, there is no duty on the part of VA to provide a
medical examination, because as in Wells v. Principi, 326
F.3d 1381 (Fed. Cir. 2003), the appellant has been advised of
the need to submit competent medical evidence indicating that
he has the disorders in question, and further substantiating
evidence suggestive of a linkage between his active service
and the current disorders, if shown. The appellant has not
done so, and no evidence thus supportive has otherwise been
obtained. Here, as in Wells, the record in its whole, after
due notification, advisement, and assistance to the appellant
under the VCAA, does not contain competent evidence to
suggest that the disorders are related to the appellant's
Given these matters of record, there is no competent evidence
that "the disability or symptoms may be associated with the
claimant's active military . . . service." 38 U.S.C.A §
5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002)
(Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to
provide a medical examination as "necessary to make a
decision on a claim, where the evidence of record, taking
into consideration all information and lay or medical
evidence, [including statements of the claimant]," and
where, the claimant had been diagnosed to have tinnitus, and
had proffered competent lay evidence that he had had
continuous symptoms of the disorder [i.e., ringing in the
ears] since his discharge. Because there was evidence of
record satisfying two of the requirements of the statute,
i.e., competent evidence of a current disability and evidence
indicating an association between the appellant's disability
and his active service, but there was not of record, as
relied upon in part by the Board in denying his claim,
competent medical evidence addressing whether there is a
nexus between his tinnitus and his active service, VA was to
provide the claimant with a medical "nexus" examination).
Further, there is no evidence to suggest that the veteran's
service medical records are incomplete. Both the service
medical file, as well as a copy of his military personnel
records, contain no reference to any psychiatric disorder and
are indicative of a full two-year military service tenure
after the veteran's induction.
Merits of the Claim
The veteran claims he has paranoid schizophrenia related to
Under applicable law, service connection is granted if the
evidence establishes that coincident with his service, the
veteran incurred a disease or injury, or had a preexisting
injury aggravated, in the line of duty of his active service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection
may also be granted for certain chronic diseases, such as a
psychosis like schizophrenia, when such disease is manifested
to a compensable degree within one year of separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307,
3.309. That a disease was incurred in service alone is not
enough. There must be chronic disability resulting from that
disease. 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). Service connection can
also be found for any disease diagnosed after discharge, if
all the evidence establishes it was incurred in service.
38 C.F.R. § 3.303(d).
Service connection requires that the evidence establish: (1)
medical evidence of a current disability, (2) medical
evidence, or lay testimony is some cases, that the injury or
disease was incurred or aggravated during service, and (3)
medical evidence of a nexus between the current disability
and the in-service injury or disease. Pond v. West, 12 Vet.
App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).
Having carefully considered the claim in light of the record
and the applicable law, the Board is of the opinion that the
preponderance of the evidence is against the claim and the
appeal is denied. Specifically, although the veteran has
schizophrenia, there is no competent evidence linking the
disorder to any incident of his military service.
The evidence indicates that the veteran is diagnosed with
schizophrenia, as indicated in his VA records starting from
March 2001. Therefore, the remaining question is if the
evidence supports a finding that the veteran's disability was
incurred coincident with his time in service, or if a nexus
exists between the current disability and an in-service
While the veteran clearly has schizophrenia, there is
absolutely no evidence to supports his contention that his
condition is service related. Except for a notation that the
veteran frequently had trouble sleeping in his February 1970
medical history (a symptom described by the veteran as being
present his entire life), the veteran's service medical
records, including his August 1970 separation examination,
contain no evidence of any psychiatric disorder. Furthermore,
VA notes that the veteran's report of separation from the
Armed Forces (DD-214) indicates that the veteran was released
from service as an early release overseas returnee, and not
because of medical reasons.
Although the Board notes that the veteran has asserted that
he was hospitalized for his psychiatric disorder while in
service, the veteran's contention is not substantiated by the
record and the service department hospital in question
reported in July 2004 that no records pertaining to the
veteran were located.
The veteran was diagnosed with paranoid schizophrenia in
March 2001. Otherwise, there is no medical evidence that
offers an opinion that the veteran has a psychiatric disorder
that is related to his time in service. Additionally, no
continuity of symptomatology for schizophrenia is in evidence
until 2001, and no competent medical evidence tends to show
the required nexus between the veteran's current disability
and a service-related incident. "Competent medical
evidence" means that provided by a person qualified through
education, training, or experience to offer medical
diagnoses, statements, or opinions. 38 C.F.R. § 3.259(a).
The only evidence provided as to the veteran's claim, is his
belief that his schizophrenia developed concurrent with his
time in service. Although the veteran can provide testimony
as to his own experiences and observations, whether
schizophrenia can be attributed to his in-service experiences
and injuries is a medical question, requiring a medical
expert. The Board does not dispute the veteran's belief that
his schizophrenia is connected to his time in service;
however, the veteran's opinion cannot be used as competent
medical evidence to support his claim. Espiritu v. Derwinski,
2 Vet.App. 492, 495 (1992). 38 C.F.R. § 3.159. The veteran
does not have the requisite special medical knowledge
necessary for such opinion evidence.
The evidentiary gap between the veteran's service discharge
and his first disability record, when considered in
conjunction with the veteran's lack of any incident in
service tends to disprove the veteran's claim that his
disability was due to an inservice disease or injury and
should thus be considered service connected. See Forshey v.
West, 12 Vet. App. 71, 74 (1998); aff'd sub nom, Forshey v.
Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that
evidence can be used to prove or disprove a disputed issue).
As noted above, the Board presently denies the claim on the
principal basis that there is no competent medical evidence
of a nexus between the disorder and his service. There is no
record that the veteran developed a psychiatric disorder
while in service and nothing to indicate that one developed
within one year of the veteran's separation from service to
indicate chronicity or continuity of symptomatology in
support of a service connection finding.
When the weight of evidence supports a claim or an
approximate balance between positive and negative evidence
regarding a material issue, the veteran shall prevail or have
the benefit of the doubt on that issue. Ashley v. Brown, 6
Vet. App. 52, 59 (1993). 38 U.S.C. 5107(b). 38 C.F.R. §
3.102. As the evidence of record is against the veteran's
claim, the benefit of the doubt rule does not apply. Gilbert
v. Derwinski, 1 Vet.App. 49, 58 (1991).
Service connection for the veteran's paranoid schizophrenia
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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