Citation Nr: 0308304 Decision Date: 05/01/03 Archive Date: 05/15/03 DOCKET NO. 99-08 606A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for attention deficit disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Higgs, Counsel INTRODUCTION The veteran served on active duty from December 1975 to April 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 1996 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied service connection for attention deficit disorder. This case was the subject of a Board decision and remand dated in September 2000. During service in November 1995 the veteran was diagnosed as having a possible anxiety disorder. There is a diagnosis of generalized anxiety disorder in a December 2000 VA treatment record, and of Gulf War Syndrome in a psychiatric context in an April 2001 VA treatment record. Notwithstanding the Board's request for an opinion on the September 2000 remand, the RO denied service connection for attention deficit disorder only. Thus that is the only issue currently before the Board on appeal. However, the report of the most recent VA examination raises a claim for service connection for psychiatric symptoms due to an undiagnosed illness. The Board refers this issue to the RO for adjudication. It is not clear whether the veteran seeks service connection for any other psychiatric disorder. This latter question is also referred to the RO for clarification and any indicated action. FINDINGS OF FACT 1. The veteran's pre-enlistment examination was normal, thereby raising a presumption of soundness; however, history obtained during service and a post-service VA medical opinion clearly and unmistakably show that his attention deficit disorder pre-existed service. 2. The veteran's attention deficit disorder did not increase in severity or was not chronically worsened during active service. CONCLUSION OF LAW Attention deficit disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. § 3.303, 3.306 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106- 475, 114 Stat. 2096 (2000) (codified at 38 U.S.C. §§ 5102, 5103, 5103A, 5107) (West 2002)). VA has recently issued final regulations to implement these statutory changes. See 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the Board finds that VA's duties to the veteran under the VCAA have been fulfilled. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103. The Board concludes the discussions in the November 1996 rating decision, the February 1997 statement of the case, the October 1999 and April 2002 supplemental statements of the case, letters sent to the veteran by the RO, and the Board's September 2000 decision and remand, adequately informed him of the information and evidence needed to substantiate his claim and complied with VA's notification requirements. The September 2000 Board decision and remand informed the veteran of the RO's duty to assist in this case (based under the law at that time that the claim was well grounded), including the duty to provide a VA examination and opinion and obtain any records of treatment which he identified and for which he provided any necessary medical releases. A November 2000 letter made the proper inquiry to the veteran, who responded, and significant additional evidence has been added to the record. An August 2001 letter and the April 2002 supplemental statement of the case from the RO informed the veteran of the VCAA, and informed the veteran that VA was required to make reasonable efforts to obtain records identified and relevant to the claim, and notify him if the RO was unsuccessful in obtaining these records. The veteran has identified no additional records since that time. In sum, the veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C. § 5103A. The RO has obtained the veteran's service medical records. As noted above, pursuant to the Board's September 2000 decision and remand in this case, the RO contacted the veteran by November 2000 letter and asked him to identify all medical providers who treated him for attention deficit disorder. As a result, much significant additional evidence has been obtained, to include all records identified by the veteran. The Board finds no indication that there are any medical records available that have not been obtained that are relevant to the questions at hand: whether the veteran's attention deficit disorder began during or is otherwise causally related to service; or, if pre-existing service, whether it was aggravated therein. The remand by the Board in September 2000 requested a medical examination and medical opinion in this case. A review of the record shows that the RO has complied with all remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As is reflected in the analysis section of this decision, the Board concludes that the medical examination and opinion obtained by the RO, in conjunction with the other information of record, provides sufficient competent medical evidence to decide the claim. That is, VCAA does not require additional medical development in this case because the record currently before it contains sufficient medical evidence to make a decision. 38 U.S.C. § 5103A; Charles v. Principi, 16 Vet. App. 370 (2002). Background A report of the appellant's service entrance physical examination reflects that no psychiatric or psychological abnormalities were noted upon his enlistment in December 1975. In particular, the appellant denied having had depression or excessive worry, loss of memory, or nervous trouble of any sort. The appellant denied that he had ever been treated for a mental condition. Upon clinical examination, no psychiatric abnormalities were noted. The reports of periodic physical examinations conducted by the service department in April 1980, July 1985, December 1987, and June 1991 are similarly without mention of any mental health related complaints, symptoms, or diagnoses. During the course of his active military service, in November 1995, the appellant was diagnosed as having a learning disorder, attention deficit disorder, and a possible generalized anxiety disorder. In a November 1995 service medical record entry, the appellant is noted to have reported that he had difficulty concentrating and comprehending written language all his life. The veteran indicated that he had tried to get help for this problem through unit physician's assistants in the past, but nobody knew where to send him. He was now attending college and having difficulties due to his inability to organize. A December 1995 treatment note includes a history of longstanding difficulties with concentration. Another December 1995 treatment note shows that the veteran was diagnosed with attention deficit disorder and was referred to psychiatry to consider the prescription of Ritalin for this condition. Upon referral, Ritalin was prescribed. In a December 1995 letter, an Army counseling psychologist reported that the appellant had undergone clinical testing and that he had been found to have attention deficit hyperactivity disorder. The appellant also underwent a service department physical examination in December 1995. Although he denied having had depression or excessive worry, loss of memory or amnesia or nervous trouble of any sort, he reported that he was using Ritalin. The report of clinical psychiatric evaluation reflects that no abnormalities were noted, but also that the appellant was using the prescribed medication. In January 1996, the veteran described instability since being prescribed Ritalin. The medication was discontinued. The diagnosis of attention deficit disorder was continued, and other treatments were discussed and pursued in January, February and March of that year. In an April 1996 statement, L.J., M.D., an Army psychiatrist, reported that the appellant had been diagnosed as having attention deficit hyperactivity disorder not otherwise specified, and that Ritalin had been prescribed from December 1995 through January 1996. The veteran was discharged from active service in April 1996 after more than 20 years of active duty. In a December 1996 statement, J.H., M.D., an Army psychiatrist, reported that the appellant had been treated by the service department from November 1995 until his discharge in April 1996. Dr. J.H. stated that the appellant received treatment for attention deficit hyperactivity disorder. In September 1998 the veteran began to receive psychiatric care from VA. Since that time, VA psychological testing has not been suggestive of attention deficit disorder, but some VA treating mental health professionals have been of the view that the veteran does have attention deficit disorder notwithstanding the results of psychological testing. There has been no dispute that the veteran has a reading disability. At a September 1999 personal hearing conducted at the RO, the appellant testified in substance that prior to his entry into active military duty he never had problems with attention deficit disorder. He stated that in 1995, he began noticing that he had difficulties in keeping up with conversation. At that time, he was diagnosed by Army physicians to have attention deficit disorder. He stated that when engaged in a conversation, he would change subjects and that within moments of reading material, he would have difficulty recalling what he had read. The veteran underwent a VA psychiatric examination in November 2000, for the purpose of determining whether he had attention deficit disorder, and if so, whether it began during service, or instead pre-existed service. If attention deficit disorder pre-existed service, the examiner was to opine whether the condition was aggravated by service. After reviewing the claims file and clinical chart, taking an extensive history and subjective complaints from the veteran, and observing the veteran at the examination, the examiner's diagnosis was attention deficit hyperactivity disorder (ADHD), combined type. This was his sole psychiatric diagnosis. The examiner opined that in spite of recent psychological tests showing no evidence of ADHD, and suggesting diverse problems (anxiety disorder, depressive disorder, somatization disorder psychosis), both the veteran's history and his observed behavior in the clinical setting were typical of ADHD. The examiner found no evidence of psychosis, no somatization disorder, and no depression. He found the veteran to be hyperactive with thoughts drifting from one subject to another. The clinical examination did not suggest an anxiety disorder (tension, worry, dreams physical problems). In the examiner's view, ADHD was the diagnosis that best fit the veteran's history and observed behavior. He noted that the criteria for ADHD required that symptoms must be present before the age of 7. There was no definite evidence that this was so, but history was scant for this period. The examiner noted that the veteran repeated first grade, but this was said to have been due to a speech impediment. The examiner noted that in the original intake information at Fort Hood Mental Health Clinic on November 21, 1995, it was recorded: "The patient states that he has had difficulties concentrating and comprehending written language all of his life." The examiner acknowledged that the veteran believed that his problems his problems were Gulf War related. The examiner asserted that he did not believe that hyperactivity was a typical part of the reported Persian Gulf War syndrome. He noted that the veterans with Persian Gulf War syndrome would often report memory problems, and that the veteran showed in intact memory. The examiner concluded that the veteran had ADHD. The examiner asserted that this was a congenital condition manifesting itself in early childhood. He further opined that it was not a condition that began while in the service, or that was exacerbated by any event or situation occurring during the veteran's period of service. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service or where clear and unmistakable evidence establishes that the injury or disease existed before service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238 (1994). Only such conditions as are recorded in examination reports are to be considered as noted. Clear and unmistakable evidence that the disability manifested in service existed before service is required to rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); 38 § C.F.R. 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing circumstances, conditions and hardships of service. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2002). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); cf. Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994) (holding special provisions applying to combat veterans create exception to rule requiring more than temporary or intermittent flare- ups to show aggravation of underlying disability). The presumption of aggravation is applicable only if the pre- service disability underwent an increase in severity during service. Davis v. Principi, 276 F.3d 134 (Fed. Cir. 2002); Hunt, 1 Vet. App. at 292, 296 (1991); see also Browder v. Brown, 5 Vet. App. 268, 271 (1993). Congenital or developmental defects such as personality disorders are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection, however, may be granted for a congenital disease on the basis of aggravation. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (2002); VAOPGCREC 82-90. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102 (2002). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis In this matter, the appellant's December 1975 enlistment physical examination contains no mention of any psychiatric, learning, or mental health disability. Accordingly, the presumption of soundness applies in this case (38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238 (1994)) and clear and unmistakable evidence that the disability manifested in service existed before service is required to rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); 38 § C.F.R. 3.304(b). Based on the record as supplemented since the Board's September 2000 decision and remand in this case, the Board finds that the presumption of soundness is rebutted. As noted in the Board's September 2000 adjudication, a November 1995 chronological record of medical care reflects that the appellant reported having difficulty reading and concentrating throughout life. This is evidence against the presumption of soundness, but this entry alone may not be sufficient to constitute clear and unmistakable evidence sufficient to rebut the presumption of soundness. However, now supplementing the record is an extensive and persuasive November 2000 VA psychiatric examination report, to include an opinion that the veteran's sole psychiatric diagnosis is attention deficit disorder, and that this condition by definition begins prior to age 7. The Board finds that this medical evidence, when coupled with the veteran's contemporaneously recorded statements during service indicating problems with concentration and a learning disability for his whole life, is clear and unmistakable evidence sufficient to rebut the presumption that the veteran did not have attention deficit disorder upon entry into service. The opinion that the disability at issue pre- existed service was unequivocal in nature and was preceded by a review of the claims file and an examination of the veteran. According, the presumption of soundness is rebutted and the question becomes whether the veteran's attention deficit disorder was aggravated during service. Because the Board has found that the veteran had attention deficit disorder prior to service, it must determine whether the condition was aggravated by service. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; VAOPGCREC 82-90. All service medical records of diagnosis and treatment for attention deficit disorder are to the effect that the veteran's problems with learning and concentrating had existed since childhood. The veteran had sought help for the condition at earlier times during service, but treating clinicians did not know where to send him. His pressing need for treatment was not described as being due to an increase in symptoms, but rather due to the increased demands of attending college. There are no notations of increases in symptomatology of attention deficit disorder during service, but rather only indications that the problem was a longstanding one for which the veteran had sought help in the past. The service medical records reflect, then, that the condition did not increase in severity during service. Because there is no showing of an increase in disability during service, the presumption of aggravation is not for application in this case. The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Davis v. Principi, 276 F.3d 134 (Fed. Cir. 2002); Hunt, 1 Vet. App. at 292, 296 (1991); see also Browder v. Brown, 5 Vet. App. 268, 271 (1993). Further preponderating against the veteran's claim is the detailed and well-reasoned report of the November 2000 VA examiner, who, after taking an extensive history reviewing the claims file, and observing the veteran, found in his detailed report that the veteran's ADHD was a congenital condition manifesting itself in early childhood, and was not exacerbated by any event or situation occurring during his period of service. Based on the foregoing, the Board finds that the veteran's attention deficit disorder was a developmental condition that pre-existed service and was not aggravated by service. Accordingly, service connection for attention deficit disorder is not warranted in this case. As the preponderance of the evidence is against the claim for service connection for attention deficit disorder, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The claim for service connection for attention deficit disorder is denied. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.