Citation Nr: 1003385 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 01-05 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1977 to August 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran had a hearing before the Board in October 2002 and the transcript is of record. The case was brought before the Board in August 2003, March 2008 and November 2008, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him a VA examination. The United States Court of Appeals for Veterans Claims (hereinafter "the Court"), in Stegall v. West, 11 Vet. App. 271, 268 (1994), held, in pertinent part: "[A] remand by [the] Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." The Court subsequently held, however, that there is no Stegall violation where VA "more than substantially complied with the Board's remand order." Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the record reveals substantial compliance with the remand instructions, including based upon a March 2009 report by an examiner identified by VA and public records as a medically-trained psychiatrist. The requested development having been more than substantially completed, the case is once again before the Board for appellate consideration of the issues on appeal. FINDING OF FACT An acquired psychiatric disorder is not shown to be related to an incident, disease or injury in service and a psychosis was not manifested within one year of service. CONCLUSION OF LAW The Veteran's paranoid schizophrenia was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in May 2001, February 2004 and June 2007. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). The 2007 letter informed the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim(s), and has in fact provided additional arguments at every stage. The notice required by 38 U.S.C.A. § 5103(a) should 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 (2004). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. Records associated with the Veteran's Social Security Administration (SSA) disability award have been obtained. There is no indication that any additional pertinent records exist that should be obtained to assist the Veteran in substantiating his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. With regard to service connection claims, the Court held in the case of McClendon v. Nicholson, 20 Vet. App. 79 (2006), that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran was afforded multiple medical examinations for opinions as to whether his schizophrenia, or any other mental illness found, can be directly attributed to service. Cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). Thus, the Board finds that VA has satisfied the duty to assist the Veteran. VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that in the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration, or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service are accepted as showing pre-service origin. Congenital or developmental defects, such as personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). Service connection for psychosis may be established based on a legal "presumption" by showing that either manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Here, no legal presumption is applicable because the earliest evidence of the Veteran's schizophrenia is 1999, nearly two decades after service. In the absence of a presumption, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). In statements and personal hearing testimony the Veteran claims that his mental illness began while in basic training in the military where he claims he was tormented. Specifically, he references an incident where he was put in a gas chamber during his military service. He further indicated that while in Germany he read a book on mental illness and felt the symptoms matched with his circumstances. He stated that he did not seek medical treatment at that time, but he claims he searched within himself then and for many years thereafter to discover what was wrong. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). In accordance with the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Board notes that lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Board further notes that "the Court has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician." Winsett v. West, 11 Vet. App. 420, 424-25 (1998) (citing Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Williams v. Brown, 4 Vet. App. 270, 273 (1993) ("Nowhere is it provided in law or regulation that opinions by the examining psychiatrists are inherently more persuasive than that of other competent mental health professionals."). The Court has held, however, that "[a] private medical opinion may not be discounted solely because the opining physician did not review the claims file." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, "the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file." Id. The level of training, education, and experience of the person conducting the examination is a factor that, if the Board affords more or less weight to the report because of that reason, must be thoroughly explained in its decision. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996)). The Board notes that the claim in this case is complicated by the fact that the Veteran is noted to have been a poor historian of his medical history and symptomatology. Indeed, according to his medical treatment records his mental condition includes, at times, psychosis and delusions which have added to an apparent inherent unreliability of his statements. Also well documented in the Veteran's medical treatment records is evidence of a long history of polysubstance abuse, to include alcohol, cocaine, marijuana, crack, and prescription pills. The Veteran has also been treated for substance-induced paranoia and psychosis on multiple occasions. The evidence demonstrates that his statements have been inconsistent over time. For example, August 1999 hospital records show he stated that prior to his 1999 hospitalization he had no history of any psychiatric problems. He further stated at that time that he had used illegal drugs in service while stationed in Germany. In later medical records he claimed he had only consumed alcohol in the military and that his drug problem started after his military service. He now claims that his psychiatric symptoms began during his military service. His statements in the medical records regarding education, familial history, past relationships, occupational history, and sobriety have also differed over time. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, the "inherent characteristics" of the Veteran's statements are found to be inconsistent. As will be discussed more thoroughly below, due to this inconsistency and the lack of corroborating objective evidence, the Board finds that the appellant's statements as to any specific incident during active service are of limited probative value. The Veteran's service treatment records are silent as to any complaints, treatment or diagnoses of any mental illness or psychiatric problem. He has also provided statements indicating that he never sought treatment for psychiatric symptomatology during active service. An August 1980 separation examination revealed a normal clinical psychiatric evaluation. The Board also notes that the Veteran's military records do not confirm any in-service trauma or combat exposure and that there is no probative evidence of any adverse reaction to gas exposure during training. Personnel records indicate he worked as a supply clerk, with five months of service in Germany, and that he received at least one promotion in January 1979. He also, however, received disciplinary action on two occasion for disobeying direct orders in 1978 and 1979. He was further reprimanded for a conviction of driving while intoxicated during active service in June 1979. Although he was honorably discharged, performance evaluation forms dated in 1979 indicate he was an average to weak performer who required a great deal of supervision. VA law provides that if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The pertinent inquiry in this case then is whether the Veteran developed a psychiatric disorder during active service or which may be attributable to an incident of his military service. The Board concludes that the persuasive evidence of record demonstrates that he did not. After service, the Veteran was first hospitalized and treated with a diagnosis of a psychiatric disorder in June 1999, nearly two decades after service. At that time, the Veteran was hospitalized for an attempted suicide, specifically overdosing on pills. The physicians at that time provided a diagnosis of substance-induced mood disorder and substance induced psychotic disorder. Initially, the Veteran was perceived as malingering and attempting to bolster his symptoms in order to stay hospitalized and for other personal gain. It is noted that at that time the Veteran had been recently released from prison for arson and was homeless. Records dated in July 1999 and August 1999 indicate diagnoses of paranoid schizophrenia or other thought disorder. An August 1999 VA treating physician indicated that it was difficult to diagnose the Veteran because of his "flavorful and ever changing history." Records show the Veteran was provided inconsistent diagnoses of paranoid schizophrenia and polysubstance-induced psychotic disorder. Treatment records also show the Veteran has been described as a poor historian who suffers from polysubstance abuse, which is also shown to be associated with his psychotic symptoms. The diagnoses of record have included paranoid schizophrenia, antisocial personality disorder, substance-induced psychotic disorder and polysubstance dependence. The Board notes that the record in support of the Veteran's claim includes several statements from his treating VA psychiatrist, J.M.T., M.D. Dr. T noted that he had treated the Veteran since 2000 and confirmed in a January 2001 statement a diagnosis of paranoid schizophrenia. In July 2001, Dr. T submitted a statement indicating that in his opinion the Veteran's schizophrenia began in the military. Specifically, Dr. T stated that the Veteran was "...accepted into service with no prior history of mental illness and at the time of discharge he was clearly having severe psychiatric problems." Dr. T explained his rationale, however, in a January 2002 statement where he specifically found the Veteran's deteriorating military work performance, the need to be supervised, and his other disciplinary problems as evidence of a severe psychiatric problem. Dr. T, in a February 2004 statement, once again indicated it was his opinion that the Veteran's paranoid schizophrenia began "during the time he was in the service." The Board notes, however, that from February 2004 through 2006 records show Dr. T continued treating the Veteran, but that VA outpatient treatment records dated during that time indicate a clear shift in Dr. T's clinical opinion. Significantly, treatment records from 2006 indicate that the Veteran had educated himself on the symptoms he needed to have in order to secure disability compensation. A July 2006 treatment note by Dr. T, for example, indicated, in pertinent part, that: [I]t appears to me that [the Veteran] feels under some obligation to remind us that he still has cardinal symptoms of schizophrenia.... He has obtained some books on paranoid schizophrenia.... My clinical impression is that such statements are contingent and grounded in the secondary gain related to compensation and sustaining his situation. Another August 2006 note by Dr. T indicated the Veteran "...is concerned that he will lose his disability rating if his mental illness is not consistently documented." In November 2006, Dr. T noted the Veteran "...emphasizes that his 'papers are at the rating board,' letting me know that his bid for disability continues to move forward. I do not detect cognitive dysfunction or psychosis in [the Veteran's] presentation of self...." In December 2006, Dr. T noted as follows, "[The Veteran] continues to report symptoms such as hearing voices and feeling paranoid, but there is a degree of dissimulation involved, in my opinion." Recent VA outpatient treatment records are noticeably silent for treatment with Dr. T. Rather, the Veteran is shown to have received treatment from 2006 to 2008 at private medical facilities. He also sought treatment at the VA, to include a January 2009 hospitalization for an overdose, where he received treatment with a different VA physician. The diagnoses provided from 2006 to 2009 include post-traumatic stress disorder, depressive disorder, schizophrenia, and polysubstance abuse. Again, it was noted that diagnosing the Veteran was complicated by the fact that he was a poor historian and suffered from polysubstance dependence. In order to reconcile the medical evidence, the Veteran was afforded multiple examinations. The Veteran was first afforded a VA examination in February 2004 where, at that time, he claimed his drug abuse started after his military service. This is in contrast to 1999 records where the Veteran reportedly informed the physician at that time that he abused LSD and PCP during service. The examiner at that time found it extremely difficult to conclude whether the Veteran had schizophrenia because his schizophrenia-type symptoms and cocaine abuse could be related to each other. That is, the examiner explained that heavy drug abuse may promote psychotic behavior, which could be seen as schizophrenia. In any case, the examiner found no evidence that any mental illness was caused by service and, therefore, regardless of the diagnosis, the Veteran's psychiatric disorder was opined to not likely have been caused by his military service. The Veteran was also afforded a VA examination in April 2008 where that examiner did diagnose the Veteran with schizophrenia and polysubstance dependence, as well as antisocial personality disorder. At that time, the examiner conceded the complexity of the case due to the fact that the Veteran was a poor historian. Specifically, the examiner indicated the Veteran "both tends to exaggerate psychiatric symptoms that he believes he can be compensated for, and minimizes antisocial behaviors and substance abuse, which he is aware are non-compensated issues." The examiner further opined as follows: It is my impression, based on available information, that the Veteran does have an antisocial personality disorder which is a pre- existing condition. This accounts for his disciplinary problems in the military and continued antisocial activities continuing through his life. The examiner provided a diagnosis of schizophrenia notwithstanding the number of concerns regarding exaggeration of symptoms. With regard to etiology, however, the examiner opined as follows: [H]e did not seek treatment until 1999 and, I do not see any objective evidence of onset before then. The disciplinary problems in the military more likely than not relate to the antisocial personality disorder. The polysubstance dependence has had the most significant impact on social and occupational functioning throughout much of his life. The April 2008 examiner thoroughly addressed the Veteran's medical history, Dr. T's statements, and records of the Veteran's current treatment. Of particular significance, the April 2008 examiner also noted that, while Dr. T had been an early advocate for the Veteran, subsequent treatment records suggested Dr. T's clinical opinion may have shifted. The Board finds the April 2008 examiner's opinion particularly persuasive given the thoroughness and complete of review and the discussion of all the medical evidence, to include Dr. T's multiple statements and treatment through the years. The Veteran was most recently afforded an additional VA examination in March 2009 where the examiner detailed the Veteran's past hospitalizations, suicide attempts, and polysubstance abuse. The examiner also noted the Veteran's legal problems and social and military history. Based upon a thorough examination, the examiner provided diagnoses including depressive disorder, psychotic disorder, and "rule out psychotic disorder secondary to polysubstance abuse," indicating as follows: [The evidence of record] suggest that there is no clear relationship between the patient's claim of schizophrenia with his military service, as the records do not support any association between the development of the two. It is quite likely that his current occasional hallucinations and self- reported paranoia are secondary to polysubstance abuse. The Board finds this opinion is also persuasive because it is based on a thorough examination and a complete review of the claims folder, to include VA outpatient treatment records, Dr. T's statements, and other VA examination reports. In short, the persuasive medical evidence overwhelmingly supports the finding that the Veteran's current psychiatric disorders are not related to his military service and are more likely related to his polysubstance abuse. The Veteran did not enter the military service with any psychiatric illness. While the Veteran, at times, claims he felt psychiatric symptoms while in the military, there is nothing in the record to support such a claim. Moreover, this claim is inconsistent with later statements he provided during treatment indicating that he did not have psychiatric symptoms prior to 1999. Military records show the Veteran had disciplinary problems during his military service, to include intoxication and required supervision. These disciplinary problems have been attributed to the Veteran's antisocial personality disorder by the April 2008 VA examiner, but upon earlier provided statements by Dr. T with the Veteran's claimed schizophrenia. The Board finds the April 2008 VA examiner's opinion as to this matter is more persuasive. The April 2008 VA examiner, moreover, clearly and thoroughly addressed Dr. T's diagnoses, treatment, and opinions. The examiner concluded that the Veteran's in-service disciplinary problems were not indicative of schizophrenia, but were more likely due to the Veteran's antisocial personality disorder. The April 2008 VA examiner, moreover, clearly took into account the inherent unreliability of the Veteran's reported history and reported symptomatology. The Board notes that personality disorders are not diseases or injuries within the meaning of applicable VA legislation for compensation purposes. 38 C.F.R. § 3.303(c). The Veteran's psychiatric disorder diagnoses have also varied over time, to include schizophrenia, post-traumatic stress disorder (PTSD), psychotic disorder, depression, and polysubstance dependence. None of these disorders are persuasively linked to any incident of military service. Again, while there is some evidence provided by Dr. T that the Veteran's schizophrenia began in the military, the Board finds the overwhelming majority of the medical evidence indicates otherwise. The persuasive medical evidence, to include all VA examinations and the VA outpatient treatment records, links the Veteran's psychiatric disorders to his polysubstance abuse. The probative value of Dr. T's statements made in 2001, 2002 and 2004, moreover, is diminished by his more recent 2006 treatment reports in which he appears to question the Veteran's symptoms and presentation. Based upon a comprehensive review of the evidence, the Board finds the Veteran's acquired psychiatric disorder is not shown to be related to incident, disease or injury in service and that a psychosis was not manifested within one year of service. For these reasons, the Board concludes that service connection must be denied. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim for service connection for paranoid schizophrenia must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for paranoid schizophrenia is denied. ____________________________________________ T. L. DOUGLAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs