Citation Nr: 1018601 Decision Date: 05/19/10 Archive Date: 06/04/10 DOCKET NO. 05-16 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1971 to October 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the claim for service connection. The Veteran now resides in Alabama, so the matter is now handled by the RO in Montgomery, Alabama. In June 2007 and October 2009, the Board remanded this claim for additional development. FINDING OF FACT The evidence clearly and unmistakably shows that the Veteran's psychiatric disorders existed prior to service and were not aggravated by service. CONCLUSION OF LAW The presumption that the Veteran was of sound condition upon entry into service has been rebutted by clear and unmistakable evidence, and service connection for a psychiatric disorder is not established. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the Veteran was sent a notice letters in January 2004, July 2007, and April 2009, which provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The January 2004 notice letter discussed above fully addressed all notice elements and was sent prior to the initial RO decision in this matter To the extent that the Veteran was not informed of how VA determines disability ratings and effective dates until July 2007, the instant decision denies service connection, and thus, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moo; however, it was provided with the letter of April 2009. No further development is required regarding the duty to notify. For all of these reasons, the Board concludes that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). No further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The appeal was remanded twice; once for an examination and once for an addendum to that examination to insure that the medical questions at issue were considered and addressed. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Discussion This appeal arises out of the Veteran's claim that a psychiatric disorder, variously diagnosed as bipolar disorder and schizoid personality disorder, was either aggravated or incurred by his service with the United States Marine Corps (USMC) from August 1971 to October 1971. Applicable Laws and Regulations - Service Connection Service connection may be granted for disability resulting from disease or injury incurred in the line of duty or from aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing direct 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 § 3.303(d). In the alternative, service connection may be awarded pursuant to 38 C.F.R. § 3.303(b) for "chronic" conditions, such as psychoses, when a chronic disease manifests itself in service (or within the presumptive period under 38 C.F.R. § 3.307) and the Veteran currently has the same condition. 38 C.F.R. § 3.303(b). For purposes of service connection pursuant to § 1110, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A pre- existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(a). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Factual Background A review of the Veteran's July 1971 enlistment examination reflects a normal psychiatric evaluation; likewise, a Report of Medical History shows that the Veteran denied having depression, anxiety, excessive worry, or nervous trouble of any sort. An August 1971 service treatment records shows that the Veteran had an "acute episode of hysteria." He was referred for psychological evaluation which, after several weeks of observation, confirmed that the Veteran very "clearly" had a schizoid pre-service lifestyle. The final diagnosis was schizoid personality disorder. In October 1971, the Veteran's case was evaluated by the USMC Medical Board, which found that, on the basis of reliable past history, the diagnosis was schizoid personality (existing prior to service), manifested by shyness, over sensitivity, seclusiveness, avoidance of close relationships, tendency to day dream, and difficulty in expressing hostility and ordinary aggressive feelings. In the opinion of the Medical Board, the Veteran's personality disorder existed prior to service and rendered him unsuitable for further service. The Medical Board further noted that the Veteran suffered from "no disability which was the result of an incident of service or which was aggravated thereby." Accordingly, in October 1971, the Veteran received a medical discharge from the USMC due to his pre-existing schizoid personality disorder. The first evidence of pos- service treatment is found in an October 2003 private treatment note from the Infirmary Medical Clinic in Mobile, AL, shows that the Veteran reported a history of schizophrenia dating back to service. He stated that he had never integrated well into society but managed to function under his mother's close watch and by holding a number of short-term jobs. He stated that he did not want psychiatric help, but felt that Paxil or Zoloft would help his symptoms. He was prescribed Lexapro at that time. Post-service VA treatment records shows that the Veteran was hospitalized in November 2003 and December 2003 for medical problems including, alcohol dependence, depressive disorder (NOS), schizophrenia, paranoid type by history, and bereavement. A November 2003 psychiatry note shows that the Veteran was irritable, nervous, and paranoid, and that he reported having been diagnosed with schizophrenia in-service. A January 2004 psychiatry consult shows that the Veteran was being treated for polysubstance dependence and bipolar disorder (and rule out temporal lobe seizures or impulse control disorder). At that time, the examiner stated that although the Veteran carried a diagnosis of schizophrenia by history, he could not see any symptoms of schizophrenia and instead believed that he had bipolar disorder. The Veteran reported that he was discharged from the USMC for "schizophrenia, paranoid type," and that he subsequently suffered a nervous breakdown in 1976. He further reported several suicide attempts in 1980 and in 2003. See Domiciliary Psychological Assessment, VAMC Biloxi, December 2003. A February 2004 VA treatment note shows that the Veteran reported having been depressed all his life, with a history of other psychiatric diagnoses. He stated that he was out of his current medication and noted recurrence of irritability. He further reported episodes of hyperactivity, agitation, and depression. The final assessment at that time was alcohol dependence and bipolar disorder. VA treatment records dated from June 2004 to February 2005 reflect continued treatment for bipolar disorder, adjustment disorder, and polysubstance abuse. From August 2004 to November 2004, the Veteran was again admitted to the VA Health Maintenance Program where he was treated for substance abuse and a history of schizophrenia and bipolar disorder. While admitted to the program, an October 2004 treatment note reflects that the Veteran was experiencing serious anxiety, tension, trouble understanding, concentrating, and remembering. He alluded that his medications were helpful in controlling such symptoms. A February 2005 outpatient note shows that the Veteran's bipolar type II was in remission. VA outpatient treatment records from March 2005 to May 2005 show continued treatment for alcohol dependence and bipolar disorder. He reported a fairly effective symptom resolution with his current regimen of psychiatric medications. An April 2005 treatment note again showed that the bipolar disorder was in remission. A May 2005 statement from the Veteran's private physician reflects a diagnosis of bipolar disorder with psychotic features, which was determined to be a permanent disability. A February 2009 VA examination report shows that the Veteran reported racing thoughts, depression, and anxiety. He noted that he had experienced such symptoms weekly to daily in frequency "all of my life, as far back as I can remember." The diagnostic impressions were bipolar disorder (NOS), alcohol dependence, and personality disorder (provisional). The examiner opined that the mental disorder (bipolar) was not caused by or a result of an in-service illness (i.e., personality disorder). He stated that his opinion, diagnosis, and rationale were based on the DSM-IV guidelines, the Veteran's claims file, and the current examination. Based on the foregoing, the examiner stated that the Veteran's symptoms of a mental disorder pre-existed his military service. A July 2009 VA examination addendum confirmed that, in the examiner's opinion, the Veteran's bipolar disorder was not due to, the result of, or otherwise aggravated by service. The examiner reasoned that the Veteran had received a diagnosis of schizoid personality disorder in-service; that service treatment records did not indicate a diagnosis of bipolar disorder; and that his military service did not appear to have aggravated his symptoms of bipolar disorder beyond the progression of expected by virtue of his reported pre-military history. In November 2009, the VA examiner further opined that it was less likely than not that the Veteran's personality disorder was aggravated by service. The examiner reasoned that there was no evidence in the Veteran's service treatment records that a personality disorder was aggravated beyond the severity expected of it given his reported pre-service military history. Rather, it was entirely possible that the structure, routine, and predictability of military service enhanced his functioning with regard to the severity of the diagnosis (i.e., personality disorder) that appears to have preexisted his service. Analysis As an initial matter, the Board acknowledges that the Veteran has reported a history of schizophrenia. See VA Treatment Note, November 2003. Schizophrenia is a psychosis under 38 C.F.R. § 3.384 (2009); psychoses are subject to the presumptive service connection provisions under 38 C.F.R. §§ 3.307, 3.309 (2009). However, as the record does not contain an actual diagnosis of schizophrenia, nor does it show treatment for such disorder, service connection for schizophrenia (either on a direct or presumptive basis) will not be considered here. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, it is noted that the Veteran is not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability that may be related to service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Moreover, the Board finds that the fully comprehensive February 2009 VA mental examination, which diagnosed only personality disorder and bipolar disorder, is more probative as to the existence (or non-existence) of a mental disorder than the Veteran's own reported history of schizophrenia. In any event, the Veteran generally seeks service connection for a psychiatric disorder. While the service treatment records include a diagnosis of schizoid personality disorder, congenital or developmental abnormalities, such as personality disorders, are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2009). However, service connection may be granted, in limited circumstances, for disability due to aggravation of a constitutional or developmental abnormality by superimposed disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). Prior to discussing the theory of aggravation, however, the Board first turns to the question of whether the Veteran's psychiatric disorders pre-existed service. In this regard, a psychiatric disorder, to included schizoid personality and bipolar, was not noted on entrance examination and thus, the presumption of soundness attaches and can only be rebutted by clear and unmistakable evidence demonstrating that a psychiatric disorder existed before service and was not aggravated by service. Wagner, supra. The medical evidence outlined above clearly and unmistakably shows that the Veteran's psychiatric disorders existed prior to service. This is first shown in the Veteran's service treatment records, where, upon psychological examination in August 1971, the USMC physician determined that the Veteran very "clearly" had a schizoid personality pre-service lifestyle. Further, in the opinion of the Medical Board, the Veteran's personality disorder existed prior to service and rendered him unsuitable for further service. In addition to the service treatment records showing a pre- existing personality disorder, VA examiners in February 2009 and November 2009, opined that the Veteran's personality disorder and symptoms of his mental disorder (i.e., bipolar disorder) clearly pre-existed his military service. With respect to bipolar disorder, its preexistence was further clarified in a July 2009 addendum, in which the examiner stated his bipolar symptoms were not aggravated by military service (beyond the progression expected given his pre- service history). Therefore, in light of the foregoing medical evidence, the Board concludes that the Veteran's personality and bipolar disorders clearly and unmistakably existed before service. Having found that there is clear and unmistakable evidence that a psychiatric disorder preexisted service, the Board will also consider whether there is also clear and unmistakable evidence that the disability was not aggravated by service. As discussed above, the February 2009 VA examiner diagnosed both bipolar disorder (Axis I) and personality disorder, provisional (Axis II). He opined that a mental disorder was not caused by or the result of an in-service illness, and that the symptoms of a mental disorder clearly preexisted service. Clarification as to the issue of aggravation was obtained by way of a July 2009 VA addendum; at that time, the examiner confirmed that the bipolar disorder was not caused by or a result of an in-service illness, nor was it aggravated thereby. He further stated that the Veteran's military service did not aggravate his symptoms of bipolar disorder beyond the progression expected, especially given his pre-military history of such mental disorder. The examiner based his opinions on both the claims file and his physical examination of the Veteran conducted in February 2009. Finally, in a November 2009 addendum, the VA examiner opined that the Veteran's pre-existing personality disorder was less likely than not aggravated by the Veteran's military service. He reasoned that there was no evidence in the service treatment records that the personality disorder was aggravated beyond the severity expected of it given his pre- military history. Further, the examiner suggested that the Veteran's military service may have actually enhanced his functioning in light of the severity of the diagnosis that pre-existed service. Thus, while there is current medical evidence of a pre- existing personality disorder and bipolar disorder, given the evidence of record, the Board finds that service connection for a psychiatric disorder is not warranted. The Veteran has indicated that his psychiatric symptoms began in childhood, and the July 2009 and November 2009 addenda indicate that the Veteran's pre-existing personality and bipolar disorders were not aggravated by his service in the military. A competent medical expert makes this opinion and the Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). There are no other contrary medical opinions of record. The opinions of the VA examiner are highly probative and outweigh the other evidence of record, including the Veteran's lay statements and contentions. Further, while the SSA records show that the Veteran is medically disabled under that agency's regulations; this determination has no bearing on the instant issue. Also, the private medical records associated with the claims folder demonstrate various diagnoses, but fail to provide opinions as to the issued discussed above. Thus, as there is no credible evidence to the contrary, the Board finds that the post-service treatment records detailing the Veteran's pre- service history of a psychiatric disorder, and the VA examiner's opinions, clearly and unmistakably show that his preexisting mental disorders were not aggravated by his military service. ORDER Entitlement to service connection for a psychiatric disability is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs