Citation Nr: 1105375 Decision Date: 02/09/11 Archive Date: 02/18/11 DOCKET NO. 09-28 189 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including schizoaffective disorder and psychotic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his father ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from June 2003 to April 2007. This appeal to the Board of Veterans' Appeals (Board) is from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2011, as support for his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. FINDING OF FACT The most probative (meaning competent and credible) evidence indicates the Veteran did not clearly and unmistakably have an acquired psychiatric disorder, including schizoaffective and psychotic disorders, prior to beginning his military service in June 2003, but he definitely did have this disorder within one year of his discharge from service, so by April 2008. CONCLUSION OF LAW Especially when resolving all reasonable doubt in his favor, the Veteran's psychiatric disorder was directly or, at the very least, presumptively incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran may be awarded service connection by showing that he has a disability resulting from a disease or an injury incurred in or aggravated by his active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A Veteran is presumed to be in sound condition when entering service under 38 U.S.C. § 1111. This presumption of soundness attaches where there has been an induction examination during which the disability about which he later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b)(1). It has been held on multiple occasions that lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners); Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a layperson's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition); see also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.) VA's General Counsel has held that, to rebut the presumption of sound condition where the condition was not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that it was not aggravated by service beyond its natural progression. The claimant is not required to show the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3- 2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A pre-existing injury or disease will be considered to have been aggravated by active 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Independent medical evidence is needed to support a finding that the pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). When it applies, however, it is VA's burden to rebut this presumption of in- service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). 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; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Mere temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition," that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 (1997); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Moreover, in Verdon v. Brown, 8 Vet. App. 529 (1996), the Court held that the presumption of aggravation does not attach even where the pre- existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service. Certain diseases, such as psychoses, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (of at least 10- percent disabling) within one year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the purposes of this presumption, "psychosis" includes the following specific disorders: 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. 38 C.F.R. § 3.384. However, personality disorders, mental deficiency, mental retardation and other such "defects" are not considered "diseases" or "injuries" within the meaning of applicable legislation and, thus, generally cannot be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. But evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a defect such as a personality disorder or mental deficiency during service may be service connected. See VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); and Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993). See, too, Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Drug or alcohol dependence or psychoses caused by drug or alcohol use also are not disabilities for which service connection is available. The controlling precedential authority makes clear that direct service connection may not be granted for a disability that arises from a Veteran's abuse of alcohol or drugs. Allen (William F.) v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). In Allen, the Court interpreted 38 U.S.C.A. § 1110 as precluding service connection for disability that results from primary alcohol abuse, which the Court defined as "arising during service from voluntary and willful drinking to excess." Id., at 1376. In conjunction with 38 U.S.C.A. § 105, the Court concluded that Congress expressed a clear intent to preclude service connection for a primary alcohol abuse disability, and that primary abuse alcohol disability is included within section 105(a)'s and 1110's "express exclusion from compensation." Id. The Court further held that § 1110 does, however, allow for alcohol abuse disability under one circumstance, when the disability arises "secondarily from or as evidence of the increased severity of a non-willful misconduct, service- connected disorder." Id., at 1378. The Court reasoned that a secondary alcohol abuse disability "results from" a line of duty disease or disability rather than as a result of abuse of alcohol or drugs itself. Id., 1377-78. In other words, the Court determined that the language of § 1110 reflects a Congressional intent that the cause of the alcohol- related disability determine whether the alcohol- related disability may be compensated under the statute, and that there are two mutually exclusive categories of causation: either the alcohol-related disability is due to voluntary abuse of alcohol and therefore noncompensable or it is due to a service-connected condition in which case the alcohol abuse is involuntary and the disability is compensable. Id., at 1376-77. For a showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established or is legitimately questionable, then evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and thereby link any current disability back to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Evidence relating the current disorder to service must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Medical evidence is not always or categorically required to establish the required nexus between the current disability and service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Disorders diagnosed after discharge still may be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). In this case, the medical and other evidence shows psychiatric treatment and diagnoses during and since service, including a diagnosis of psychotic disorder within the one-year presumptive period following discharge from service. The Veteran's service treatment records (STRs) indicate normal psychiatric findings during his military entrance examination in November 2002, so there was not the required indication or notation of pre-existing mental impairment to rebut the presumption of soundness when he later began serving on active duty in June 2003. Once in service, he was treated for suicidal ideation in May 2005 following the death of his mother. The examiner diagnosed adjustment disorder with anxious mood and rule out schizophrenia. The STRs show he was admitted for in-patient treatment, however, they do not include any records of treatment while admitted. He was released from in-patient treatment two weeks later with a diagnosis of major depressive disorder, only episode, severe with psychotic features. A treatment record dated two-weeks after that admission shows diagnoses of depression and anxiety disorder and a prescription for seroquel. An October 2006 treatment record indicates he was seen by psychiatry service upon his return from Iraq after making suicidal comments. He was again held in-patient. The examiner diagnosed an adjustment disorder. The Veteran was arrested in December 2006 for driving while intoxicated and evading police. He was transferred from the local jail to a correctional psychiatric facility three weeks later. He received psychological testing, treatment and medication and was released in February 2007. A February 2007 competency and sanity evaluation indicated the diagnoses upon discharge from the correctional psychiatric facility were alcohol abuse, mood disorder not otherwise specified, and personality disorder not otherwise specified. The evaluator indicated the Veteran was competent to stand trial and sane at the time of the offense. During his military separation physical examination in March 2007, the Veteran indicated he was taking Thorazine and Depakote. On a post-deployment questionnaire in April 2007, he indicated problems sleeping, difficulty remembering, increased irritability, and taking more risks such as driving faster. He also indicated that he avoided situations that reminded him of past upsetting experiences, and that he felt numb or detached from others. He was discharged from the military that same month. His DD Form 214 indicates he was separated from service on account of a personality disorder. The Veteran's post-service, private treatment records from C.R., M.D., show diagnoses of schizoaffective disorder, bipolar type, psychotic disorder not otherwise specified, and alcohol abuse in partial remission in March 2007. A December 2007 VA treatment record shows a diagnosis of psychotic disorder, rule out schizophrenia, rule out schizoaffective disorder, rule out bipolar disorder, and alcohol abuse/dependence. The January 2008 VA psychiatric evaluation resulted in diagnoses of alcohol dependence, abuse of over-the-counter stimulants, mood disorder not otherwise specified, and psychotic disorder not otherwise specified. The examiner conceded that it is impossible to state whether the Veteran's mood and psychotic symptoms are the result of his alcohol and drug abuse. She also indicated the Veteran's mood disorder and psychotic disorder might be caused by an underlying schizoaffective disorder due to a family history of schizophrenia. A February 2008 VA treatment record indicates the Veteran then recently had been hospitalized for an overdose of his prescribed medication. The examiner listed the then current psychiatric diagnoses as impulse control disorder, historical diagnosis of psychotic disorder, polysubstance abuse, and rule out bipolar disorder. The Veteran was admitted for in-patient alcohol and substance abuse treatment during February and March 2008. He appeared to comply with the treatment, but returned just one week after treatment claiming he was drinking 10 beers a day and wanted to receive a prescription for Antabuse. The treating psychiatrist prescribed Risperdal injections every two weeks. It does not appear the Veteran attended his injection appointments consistently. A June 2008 neuropsychological evaluation diagnosed schizoaffective disorder, alcohol dependence in partial remission, history of inhalant abuse and polysubstance abuse, and a personality disorder with antisocial features. A July 2009 VA examination diagnosed schizoaffective disorder, bipolar type, a history of polysubstance abuse/dependence, and a personality disorder with antisocial and narcissistic traits. The examiner determined the Veteran's schizoaffective disorder is more likely than not caused by genetic predisposition (since his mother was diagnosed and treated for schizophrenia) and does not appear to have been permanently aggravated by his military service as his pre-military functioning suggests he was on course for severe impairment before he was in the military. During his January 2011 video-conference hearing, the Veteran testified that his mental condition especially became an ongoing problem after the death of his mother while in service, but that it deteriorated further after being stationed in Iraq. As evidence of this, he testified about how he pulled guns on people and threatened to shoot them or himself. He also said that on numerous occasions he turned in his weapon to his sergeant for fear of hurting himself or others. He also reported feeling violent and paranoid when he does not take his medication, and that he does not like telephones or televisions. The Veteran's father provided supporting testimony that the Veteran was strongly emotionally affected by the death of his other in 2004, but that his attitude and behavior changed significantly (so even aside from that) after his return from Iraq in 2006. The father went on to testify that the Veteran was high-strung, violent and argumentative following his deployment. As to a pre-existing condition (given the reference to the Veteran's seeming predisposition to eventually developing schizophrenia or some form of mental impairment since his now deceased mother reportedly had a history of this illness), the Board finds there is insufficient evidence of a pre-existing disorder to rebut the presumption of soundness when entering service. Keep in mind that, if there was no such notation during his military enlistment evaluation (which there was not), there has to be clear and unmistakable evidence of a pre-existing condition. This is a very high standard or burden of proof for VA to overcome. "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the pre-existence of a condition and the non-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Here, the Veteran has reported losing interest in school in his senior year of high school, being grounded by his father during his teenage years for his behavior, and drinking alcohol with his friends. But none of those adolescent behaviors are tantamount to or rise to the level of a mental illness prior to service, and in no way provide the necessary clear and unmistakable evidence that his schizoaffective disorder existed prior to service. There is no evidence of psychiatric treatment prior to service, or any such need, and the report of his military entrance examination shows a "normal" or remarkable mental status evaluation, rightly or wrongly (if judged after the fact). There also is no evidence of symptoms or treatment for any sort of psychiatric-related problem or issue during the first nine months of his active duty service. See 38 C.F.R. § 3.303(c) indicating that, in regards to pre-service disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary. Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof. Here, though, there is no evidence the Veteran exhibited any symptoms or sought psychiatric treatment until after his mother's death in March 2005. Additionally, the Board does not find that his family history of schizophrenia, including in his mother, is itself sufficient to provide clear and unmistakable evidence that his schizoaffective disorder necessarily pre-dated his service. The Board does not find the July 2009 examiner's rationale that "pre-military functioning suggests [the Veteran] was on course for severe impairment before he was in the military" is sufficient reason to deny the claim or persuasive because the Board has reviewed the record extensively and finds absolutely no evidence conclusively showing he had any mental impairment prior to service. Consequently, it is presumed that he was in sound mental health when entering service. As to his diagnosis of a personality disorder, the Board notes the Veteran is not entitled to service connection for his personality disorder, but this is not the only relevant diagnosis he has received. The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, as concerning his history of alcohol and substance abuse, disability resulting from alcohol abuse, since it is willful misconduct, generally cannot be service connected. See 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d). VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990. See VAOPGCPREC 7- 99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). There is the very limited exception to this general rule. As already alluded to, in Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service. Id., at 1376. However, the Federal Circuit Court further held that there can be service connection for compensation for an alcohol/drug abuse disability acquired as secondary to, or as a symptom of, a non-willful misconduct, service-connected disability. But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id., at 1381. An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. Here, the Veteran has received diagnoses of psychiatric disorders in addition to his alcohol and substance abuse. His alcohol and substance abuse do appear to exacerbate his psychiatric condition and especially limit the effectiveness of any medication he may take to treat his psychiatric disorders. However, the record does not support the notion that all of his psychiatric diagnoses are related to his substance abuse or necessarily led to it. His alcohol and substance abuse have been strongly linked to impulse control and mood disorders, but his schizoaffective disorder and psychotic disorders do not appear to be caused by his alcohol and substance abuse, or at least not solely caused by his substance abuse. Although there has been disagreement as to the appropriate diagnosis of the Veteran's condition, clearly there is evidence that he exhibited psychiatric symptoms in service, as evidenced by his admittedly sometimes bizarre behavior. So even if, for the sake of argument, his only psychiatric diagnosis at the time of his discharge from service in April 2007 was a personality disorder, his post-service VA treatment records since obtained indicate additional diagnoses of psychotic disorder, rule out schizophrenia, and rule out schizoaffective disorder in December 2007, so well within the one-year presumptive period following service. Therefore, service connection on a presumptive basis is established by that December 2007 record alone. The two VA examiners that subsequently evaluated the Veteran and concluded his substance abuse makes it impossible to determine the etiology of his psychiatric condition and that he was "on course" for schizoaffective disorder prior to service are insufficient to rebut the presumption that he developed a psychosis within the one-year presumptive period following the conclusion of his service. As service connection may be established on a presumptive basis, there is no need to establish a direct nexus between the condition and his service since, when, as here, the presumption applies, it is presumed his disability was incurred in service. Therefore, the Board finds that, at minimum, there is sufficient evidence to establish the Veteran had a diagnosis of a psychosis within the one-year presumptive period following the conclusion of his service. Accordingly, service connection for a psychiatric disorder, including schizoaffective and psychotic disorders, must be granted. In light of the favorable outcome, there is no need to discuss whether VA has satisfied its duties to notify and assist the Veteran with his claim pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100, et seq. His claim is being granted, regardless, so even if VA has not provided this notice and assistance, it is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). ORDER The claim for service connection for an acquired psychiatric disorder, including schizoaffective disorder and psychotic disorder, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs