Citation Nr: 0813819 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 97-00 207A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mark Vichich, Associate Counsel INTRODUCTION The veteran served on active duty from April 1970 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) following Board Remands of August 2000, February 2001, September 2003, and March 2007. This matter was originally on appeal from an April 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The veteran testified before the undersigned Veterans Law Judge at a travel board hearing in August 2000; a transcript is of record. FINDINGS OF FACT 1. The evidence clearly and unmistakably shows that the veteran's schizophrenia pre-existed the veteran's military service and was not aggravated during such service. 2. The competent medical evidence does not show that a psychiatric disorder began in or was aggravated during service or that a psychosis was manifest to a degree of 10 percent or more within a year of the veteran's discharge from active duty service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by active service and is not presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 and Board Remands The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. Further, VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(a)-(c) (2007). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). The Board finds that VA has satisfied its duty to notify. The AOJ provided notice to the veteran in correspondences dated in February 2002, April 2004, and April 2006. In the February 2002 and April 2004 correspondences, the RO advised the veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the veteran and which portion VA would attempt to obtain on behalf of the veteran. In the April 2004 correspondence, the AOJ specifically requested that the veteran send any evidence in his possession that pertained to the claim. In the April 2006 correspondence, the RO informed the veteran that when service connection is granted, a disability rating and effective date of the award is assigned. The RO also explained how the disability rating and effective date are determined. The Board finds that in issuing these letters, the AOJ has satisfied the Board's remand of February 2001 requiring the veteran be provided with notice under the VCAA. Although the AOJ did not provide fully compliant notice until after initial adjudication of the claim, it readjudicated the claim and issued a supplemental statement of the case in August 2007. The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). This action also satisfied the portion of the Board's remand requiring a readjudication. Finally, the Board also finds that the RO has satisfied VA's statutory duty to assist and all other Board remands. In satisfaction of the Board's August 2000 remand, the veteran was provided with a hearing before the undersigned Veterans' Law Judge. The veteran was also provided with a VA examination in April 2004 in satisfaction of the Board's September 2003 remand. The RO has obtained a substantial amount of medical evidence in support of this claim. This medical evidence included the veteran's service medical records, VA Medical Center (VAMC) treatment records, and private medical records. The VAMC records were from the West Los Angeles and Sepulveda facilities. Non-federal medical records associated with the claims file included records from Lancaster Community Hospital, High Desert Medical Center, Los Angeles County Department of Mental Health, and Antelope Valley Mental Health. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in active military service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may also 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) (2007). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Psychosis is presumed to be service-connected if it becomes manifest to a degree of 10 percent or more within 1 year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2007). Every veteran is presumed to have been in sound condition at the time of acceptance for service, except for defects, infirmities, or disorders noted at that time or where clear and unmistakable evidence demonstrates that the disability or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3- 03. When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability" [was] due to the natural progress of the" pre- existing condition. 38 U.S.C. § 1153. Wagner v. Wagner, 370 F.3d 1089, 1096 (2004). A pre-existing 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. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2007). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b) (2007). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (providing that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). "[T]emporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to the symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). This means the base line against which the board is to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991) (holding that veteran's condition did not increase in service where symptoms described in medical reports prior to service were strikingly similar to symptoms described in service medical records). Analysis In his substantive appeal, dated in April 1996, the veteran acknowledged his mental disorder pre-existed his active duty service. In his notice of disagreement, dated in April 1996, he alleged his pre-existing mental disorder was aggravated in service. At his travel board hearing, the veteran testified that he was first treated for a mental condition when he was in high school. The veteran stated that his condition was controlled with medications. In the service, the veteran recalled, he first began to hear voices in his head. The veteran denied hearing such voices prior to his active duty service. The pertinent medical evidence in this case includes the veteran's service medical records; records of treatment from Lancaster Community Hospital, High Desert Medical Center, Los Angeles County Department of Mental Health, and Antelope Valley Mental Health; a VA examination report, dated in April 2004 with addenda dated in March 2005 and September 2005; and an independent medical expert opinion, dated in December 2005. Upon reviewing this evidence, the Board finds that there is no basis for entitlement to service connection for a mental illness. There is some discrepancy among the medical records as to what mental disorder(s) the veteran currently has. In June 1993, the veteran was diagnosed with schizophrenia, undifferentiated, according to an Adult Initial Clinical Assessment from Los Angeles County Department of Mental Health. The veteran was also given a diagnosis of chronic schizophrenia in June 1994 at VAMC Sepulveda. In July 2000, however, VA psychiatrist, Dr. J.L., diagnosed questionable schizophrenia and adjustment disorder with depressed mood. Another VA psychiatrist, Dr. R.H., initially stated in a letter dated in June 2003, that the veteran had a diagnosis of chronic paranoid schizophrenia. In a psychiatric mood disorders clinic note dated in October 2003, however, Dr. R.H. stated "diagnosis unclear." According to VAMC psychiatric progress notes dated from October 2003 to November 2003, Dr. R.H. began to question the schizophrenia diagnosis after observing a clinical picture more consistent with an anxiety disorder rather than psychosis. The veteran was again diagnosed with schizophrenia in April 2004. The exact diagnosis at that time was paranoid schizophrenia in partial remission, with secondary depression, as shown in a VA mental disorders examination report. To clarify any ambiguities, the Board obtained an independent medical expert opinion from a psychiatrist, pursuant to 38 C.F.R. § 20.901(d). In her report, dated in December 2006, Dr. E.F. provided two diagnoses (1) schizophrenia, undifferentiated type, episodic with inter-episode residual symptoms and (2) adjustment disorder, chronic with mixed anxiety and depressed mood. Citing the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV), Dr. E.F. identified the relevant criteria (A-F) for a schizophrenia diagnosis. Then, Dr. E.F. illustrated how the veteran's symptoms shown by the record matched these criteria and identified portions of the record to support her analysis. For example, Dr. E.F. cited the veteran's symptoms of delusions and hallucinations, which according to medical records from several sources, began in the late 1960s. Dr. E.F. also described social and occupational dysfunction, citing the veteran's difficulty with sustained employment or interpersonal relationships since his late teens and sub-optimal self-care for diabetes. Third, Dr. E.F. noted that the veteran had exhibited continuous signs of the disturbance for more than 6 months. Last, Dr. E.F. noted that there was no evidence the veteran's symptoms were caused by physiological effects of a substance or a general medical condition, or were related to a diagnosis of pervasive developmental disorder. Dr. E.F. also acknowledged that the veteran's symptoms appeared to change in the mid 1990's with auditory hallucinations and paranoid delusions becoming less prominent, and depression, anxiety, and social and occupational impairment becoming more prominent. Dr. E.F. also acknowledged that in 2003 the veteran's psychiatrists questioned the schizophrenia diagnosis, noting that the veteran had no observable signs of acute psychosis. Regarding the change in symptoms, Dr. E.F. stated that such a change was not unusual. Dr. E.F. cited medical literature stating that symptoms of schizophrenia were most severe during the first 5 to 10 years of onset and that they gradually improved. Dr. E.F. concluded that the veteran's psychiatrists might not have had access to the veteran's earlier records, which would make it understandable why they questioned the diagnosis. Regarding the adjustment disorder, chronic, with mixed anxiety and depressed mood, Dr. E.F. based this diagnosis on the manifestation of depressive symptoms in 1999-2000 that appeared to be related to psychosocial stressors rather than to residual symptoms of schizophrenia. Dr. E.F. explained that in 1999 the veteran's sister moved in with him, creating difficulties in the relationship. These difficulties caused distress beyond what one might typically expect from such a stressor according to the doctor. Dr. E.F. noted that the symptoms improved shortly after his sister moved out. Again, Dr. E.F. cited portions of the DSM-IV in support of her conclusion. The Board finds Dr. E.F.'s report to be highly reliable. In it, she relied on citations to both medical literature and specific records in the veteran's claims file to support her diagnoses. The Board has thoroughly reviewed the claims file and concludes that she considered all relevant evidence in formulating her opinion. Having determined the appropriate diagnoses, the Board also concludes that schizophrenia existed prior to service. In a report of medical history prepared upon his induction, dated in August 1969, the veteran reported a history of nervous trouble. The examining physician wrote "nervous mild" under the summary section, but provided no further explanation. The veteran's pre-induction physical examination report was negative for any mental health findings. Although a nervous condition was clearly "noted" on examination, the Board nonetheless finds the presumption of soundness applies because neither schizophrenia nor an adjustment disorder were specifically noted at that time. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-03. Despite that the diagnosed diseases were not noted, the Board finds the evidence clearly and unmistakably shows that the veteran's schizophrenia both pre-existed and was not aggravated by service. 38 U.S.C. § 1153. Wagner v. Wagner, 370 F.3d 1089, 1096 (2004). There are several portions of the record suggesting schizophrenia began prior to service. First, the pre-service medical evidence included progress notes from Doctors Hospital, dated in January-February 1968 noting "possible schizophrenia" and "depression worsening." Second, according to a psychiatric consultation from VAMC Sepulveda, dated in June 1994, veteran started hearing voices possibly between the ages of 16 and 18. The attending physician, Dr. J.B., stated that the veteran had "a long standing psychiatric illness-probably always schizophrenia." Third, in an Adult Initial Clinical Assessment from Los Angeles County Department of Mental Health, dated in June 1993, a nurse reported the veteran began seeing a psychiatrist at age 16 or 17. Both the VA examination report with addenda and the independent medical expert opinion support the Board's finding that the disorders pre-existed service. In the September 2005 addendum to the March 2005 VA examination report, Dr. L.K. stated that it was likely that the veteran's mental illness-which he diagnosed as schizophrenia with secondary depression-existed prior to his active duty service of 82 days. Dr. L.K. explained that the veteran had his first episode of mental illness at the age of 16 and was treated at that time as an outpatient with Stelazine medication. Dr. L.K. also noted that the veteran was drafted into the military despite providing a letter indicating that he was being treated for a nervous condition. The independent medical expert opinion report also supports the Board's finding. In that report, Dr. E.V. stated that based on the medical records available for review, the veteran manifested symptoms of a psychiatric illness consistent with schizophrenia as early as January 26, 1968. The medical evidence also included a June 1994 VA psychiatry consultation in which it was reported that the veteran began hearing voices in the 1970's. The Board has also considered the veteran's travel board testimony that he did not begin hearing voices until his time in service. The other evidence in the claims file, however, outweighs these statements. Particularly revealing are the progress notes from Doctors Hospital dated in January 1968 noting possible schizophrenia and the numerous reports that his symptoms began at age 16 or 17. In short, the evidence establishes that he began to experience symptoms ultimately attributed to schizophrenia before he entered the service and the medical evidence unquestionably establishes that the schizophrenia pre-existed service. There are some ambiguities in the record regarding whether the veteran's pre-existing mental illness was aggravated during service. Although the veteran was in service for less than three months, his claims file included a substantial amount of service medical records. According to a Medical Board Proceedings report, dated in June 1970, the veteran was discharged after being found medically unfit due to multiple urethral strictures. Despite multiple records of treatment for urethral strictures and other ailments, the service medical records were negative for any mental health treatment. The service medical records, therefore, provide no evidence that a mental disorder was aggravated in service. There are three letters from Dr. R.H., of the Sepulveda VAMC. In one letter, dated in January 2003, Dr. R.H. stated that the veteran's military service "contributed significantly to an increased level of anxiety and paranoia, which did not remit following the war." This anxiety with panic attacks, Dr. R.H. stated, severely affected the veteran's ability to function and created a tremendous amount of emotional turmoil which continued to this day. Dr. R.H. concluded that Mr. S. [sic] believed he was deserving of compensation for his years of suffering from symptoms which he felt were exacerbated during his military service. In another letter from Dr. R.H., dated in June 2003, Dr. R.H. stated that the veteran had a diagnosis of chronic paranoid schizophrenia. Dr. R.H. stated that the veteran believed his military service contributed significantly to an increased level of anxiety and paranoia, which did not remit following the war. Dr. R.H. then stated that the veteran related that this anxiety with panic attacks severely affected his ability to function and created a tremendous amount of emotional turmoil which continued to this day. Then, Dr. R.H. concluded that the veteran believed he was deserving of compensation for his years of suffering from symptoms which he felt were exacerbated during his military service. In the third letter from Dr. R.H., dated in May 2004, the doctor stated that the veteran had been, reportedly, diagnosed in years past with schizophrenia. Dr. R.H. stated that in his opinion, the veteran suffered from an anxiety disorder and had benefited from treatment with anti- depressant medication. In summary, Dr. R.H.'s first letter seems to establish that the veteran's pre-existing mental condition worsened in service, but inexplicably he named another veteran in the second half of that letter. The second letter does not support a finding of aggravation as it refers only to the veteran's belief rather than the doctor's medical opinion. Finally, the third letter does not support the claim because in it, the doctor only referred to possible current diagnoses without reference to in-service incurrence or aggravation. These letters are contradictory and by themselves, do not make a sufficient basis on which to make an aggravation finding. The VA examination report and two addenda are also ambiguous as to whether the veteran's pre-existing mental illnesses were permanently aggravated in service. In the report of VA mental disorders examination, dated in April 2004, Dr. L.K. diagnosed paranoid schizophrenia, in partial remission, with secondary depression, but did not provide an opinion regarding aggravation in service. In the March 2005 addendum, Dr. L.K. stated that based upon the information he obtained in reviewing the records and conducting a mental status examination, in his opinion it was as likely as not that the veteran's tour of duty aggravated his pre-existing mental condition and further accelerated its progression. Then, however, in the September 2005 addendum Dr. L.K. stated that it was likely the veteran's mental illness existed prior to his active duty service of 82 days, but that his active duty service did not likely permanently aggravate the natural progression of this mental illness. Dr. L.K. provided the following reasons for his conclusion. The veteran had his first episode of mental illness at the age of 16 and was treated as an outpatient with Stelazine medication. The veteran was also drafted into the military even though he provided a letter indicating that he was being treated for a nervous condition. The veteran did not seek psychiatric treatment while in the military and the veteran's report of seeing a psychiatrist in the community was unsubstantiated. The two VA examination report addenda are ambiguous because initially, Dr. L.K. concluded there was no aggravation of a pre-existing mental condition, but then inexplicably, he rendered an opinion to the contrary. In resolving these ambiguities, the Board again turns to the independent medical expert opinion. In that report, Dr. E.V. concluded that although it was possible that the veteran's military service caused an acute increase in disability during the period of time around his service, it did not seem likely that the veteran's military service had significantly changed the course of his mental illness. The doctor explained that in all of the veteran's medical records, there was no mention that he saw or participated in any combat or experienced any acute trauma during his military service. She also noted that extensive notes from individual group therapy failed to document any issues the veteran may have had concerning his military service. Dr. E.V. also explained that the veteran sought treatment for numerous physical symptoms and somatic complaints in service, but he never requested any kind of mental health evaluation or treatment. In evaluating all the evidence pertaining to in-service aggravation, the Board finds the independent medical expert opinion resolves the ambiguity and tips the balance of the evidence against the veteran. Although Dr. E.V. considered the possibility of an acute increase in disability during the period of time around the veteran's service, she declined to conclude the mental illness was permanently aggravated during such military service. Dr. E.V.'s use of the phrase "did not seem likely" when referring to whether the veteran's military service had significantly changed the course of his mental illness indicates to the Board that she had the requisite degree of medical certainty. Moreover, she cited specific reasons for her conclusion. The Board finds this report to be highly probative on the issue of in-service aggravation of a pre-existing mental illness. The Board acknowledges that there is no firm opinion on whether the adjustment disorder had pre-existed service. The weight of the evidence, however, is against granting service connection for an adjustment disorder. As noted, the service medical records were negative for treatment of any psychiatric illness. The medical evidence also fails to show that veteran received any mental health treatment within a year after service. Instead, the evidence suggests he did not receive any treatment for nearly a decade after his discharge. According to an Adult Initial Clinical Assessment from Los Angeles County Department of Mental Health, dated in June 1993, a nurse reported the veteran began seeing a psychiatrist at age 16 or 17 and then was seen at McCall's Foundation in Los Angeles in 1979 for weekly therapy sessions for dealing with issues including "nerve problems." Thus, there is there is no evidence that an adjustment disorder first manifest during service or within a year thereafter. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a) (2007). The Board has also considered the arguments set forth by the veteran's accredited representative. In a statement, dated in March 2006, the representative asserted that the VA examination addendum of March 2005 met the criteria for service connection based on aggravation of a pre-existing mental condition. The representative asserted that the March 2005 addendum satisfied the Board's remand criteria and that the physician only changed his opinion upon a "forced follow up" examination. The Board recognizes that although Dr. L.K. provided adequate reasons and basis for his opinion that the veteran's active duty service did not likely permanently aggravate the natural progression of this mental illness, he did not explain why he changed his opinion in the first place. For reasons explained above, however, the Board finds that the independent medical expert opinion resolved all ambiguities on this issue. The Board declines to give any weight to the veteran's opinion that his mental illness was permanently aggravated in service. As a layperson, he has no professional expertise. Lay assertions regarding medical matters such as diagnosis or etiology of a disability have no probative value because laypersons are not competent to offer medical opinions. Here, the claim involves issues of medical fact, such as causation and diagnosis, and competent medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs