Citation Nr: 1019564 Decision Date: 05/26/10 Archive Date: 06/09/10 DOCKET NO. 02-12 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Patel, Associate Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from March 1951 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which found that new and material evidence had not been received to reopen a claim for service connection for a nervous condition, to include schizophrenia. The matter has since been transferred to the RO in Des Moines, Iowa. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in June 2004. A transcript of that hearing has been associated with the claims file. In an October 2004 decision, the Board found that new and material evidence had been received to reopen the Veteran's claim. The Board then remanded the claim for additional development. Following that development, the RO continued the denial of service connection for an acquired psychiatric disorder in a September 2005 supplemental statement of the case (SSOC). The Board affirmed the RO's denial in an August 2006 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In January 2008, the Court vacated the Board's decision and remanded the case back to the Board for readjudication in compliance with a December 2007 Joint Motion for Partial Remand (Joint Motion). The Board then remanded the case back to the RO for development consistent with the Court's instructions in April 2008. The case now returns to the Board once again for appellate review. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include schizophrenia, as a result of service. CONCLUSION OF LAW An acquired psychiatric disorder, to include schizophrenia, was not incurred in or aggravated by service, nor may a psychosis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 and Supp. 2009); 38 C.F.R. § 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2009). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Subsequent to the initial adjudication of the Veteran's claim, a letter dated in June 2003 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran received a similar letter in May 2008 which also notified him of the criteria for establishing a disability rating and effective date. See Dingess. With respect to any inadequate timing of this notice, the Board finds no prejudice to the Veteran in proceeding with the issuance of a final decision. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO cured any VCAA notice deficiency by issuing complete notice in August May 2008. The RO then readjudicated the case in a February 2010 SSOC. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied by way of the May 2008 letter. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the claim was then readjudicated in a SSOC in February 2010 after the notice was provided. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ('[N]o error can be predicated on insufficiency of notice since its purpose had been served.'). In order for the United States Court of Appeals for Veterans Claims (Court) to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran's service treatment records, VA treatment records, private treatment records, VA authorized examination report, and hearing transcripts have been associated with the claims file. VA attempted to obtain the Veteran's Social Security Administration (SSA) records. Those records have been destroyed. See May 2008 SSA response. In addition, VA attempted to obtain Mental Hygiene Clinic records from Fort Polk, Louisiana. Those records are also not available. See February 2010 VA Formal Finding of Unavailability. However, VA has obtained morning reports dated May 1952 from Fort Polk (then known as Camp Polk) which have been associated with the claims file. The Board specifically notes that the Veteran was afforded a VA examination for his claimed disability in November 2009. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is based on a review of the claims file, contains a description of the history of the disability at issue; documents and considers the relevant medical facts and principles; and, to the extent possible, includes an opinion as to the etiology of the Veteran's disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with opportunity to submit evidence and arguments in support of his claim. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service treatment records are negative for any complaints, treatment, or diagnoses of a psychiatric disorder. The Veteran underwent an enlistment examination in March 1951. No relevant abnormalities were noted. A May 20, 1952 morning report from Camp Polk indicate that the Veteran was hospitalized in May 1952; a notation indicates that the Veteran was transferred to the hospital and that a line of duty determination was affirmative, effective May 16, 1952. A May 24, 1952 morning report indicates that the Veteran was returned to duty effective May 23, 1952. However, details of the Veteran's hospitalization, such as the nature of his condition or the treatment he received, are not included in the morning reports. A June 1954 separation examination noted no relevant abnormalities. The Veteran's first documented psychiatric treatment was several years after his separation from active duty. The Veteran was hospitalized by VA for psychiatric treatment from April to May of 1956. In his application for admission, the Veteran indicated that he had been hospitalized in service and had received electroshock therapy. The treating clinician noted that this fact "was not borne out by review of his military records." At that time, the Veteran reported that during treatment for a fractured leg in service, he developed a nervous disorder and was on a locked ward for a while in the hospital in Tokyo, Japan. He stated that he was shipped back to the States in March 1954 and returned to duty at Camp Carson, Colorado, and discharged in June 1954. The examiner noted that a review of the Veteran's military records indicated that he was seen for psychiatric evaluation while stationed at Camp Polk, Louisiana in May 1952 because of his involvement in a vicious crime about five week earlier; as noted above, these records are not associated with the claims folder and appear to be unavailable. The examiner reported that the Veteran was given a diagnosis of schizoid personality, chronic, severe, as manifested by apathy; lack of interest in himself or others; lack of a sense of responsibility or guilt; extreme obstinacy; and abnormal suspiciousness of others. It was recommended that the Veteran be returned to duty for administrative disposition. The examiner further noted that the Veteran's military records showed that in November 1953, the Veteran was admitted to Tokyo Army Hospital because of a left leg fracture when he fell over a log while walking guard duty in Korea. Following mental status examination, the final diagnosis was sociopathic personality disturbance, dyssocial reaction, manifested by numerous difficulties with the law, excessive drinking, a poor work history and difficulties in his interpersonal relationships; question of borderline schizophrenic states. The Veteran underwent a neuropsychiatric examination by VA in March 1962. A report from that examination notes that the Veteran was completely unreliable and unable to verbalize any specific complaints. The examiner also indicated that he had reviewed the veteran's claims folder and that no psychiatric diagnosis was made during service. Following a mental status examination, the diagnosis was schizophrenic reaction, chronic undifferentiated type manifested by flattened affect, associability, dyssocial acting out, withdrawn and retardation, chronic. The examiner noted that this condition was regarded as a maturation of a pre-existing personality disorder, schizoid and dyssocial type. A February 1968 VA psychiatric examination report also lists a diagnosis of schizophrenic reaction, undifferentiated type, chronic. At a July 1981 VA examination, the examiner noted a review of the Veteran's claims folder including psychiatric examinations conducted in March 1962 and in March 1968. During the July 1981 examination, the examiner noted that there was no evidence of any acute psychological or psychiatric symptoms elicited. The diagnosis was no primary disabling psychiatric illness nor disease found. Finally, a March 1987 VA psychiatric examination report lists diagnoses of schizophrenia disorder, residual type; and alcohol abuse. The Board notes that the March 1987 report is the last documented evidence showing a diagnosis of schizophrenia. Since that time, the only psychiatric diagnosis has pertained to alcohol abuse. The Board has reviewed additional treatment records dated from 1992 onward. Some of these records show both inpatient and outpatient treatment for alcohol abuse, but do not list any other psychiatric disorder, such as schizophrenia. The Veteran testified at a video conference hearing in June 2004. With respect to his claim for schizophrenia, he stated that he had no problems prior to entering service. During basic training however, he was hospitalized for a nervous disorder. He received electroshock treatments at Camp Polk. He continued to have problems with nervousness after being deployed overseas. The Veteran was afforded a VA examination in November 2009. The claims file was reviewed by the examiner, who noted that there was no diagnosis or treatment for a psychiatric disorder in either the Veteran's service treatment records or his electronic VA treatment records. He also noted the previous diagnoses of sociopathic personality disorder, schizophrenic reaction, and residual schizophrenia. The Veteran was cooperative during the interview but was unable to provide some history, and seemed uncertain about the history he did provide. The examiner stated that the Veteran was not regarded as a reliable historian. The Veteran stated that he received some psychiatric treatment at Camp Polk, Louisiana. He could not recall what precipitated this hospitalization, but he remembered being locked up and possibly treated with electroconvulsive therapy. He vaguely remembered that the hospitalization may have been related to fainting and seizures. He also acknowledged several hospitalizations after service for the treatment of alcohol abuse. He reported being treated with medication for psychiatric symptoms, but was unclear about the nature of these symptoms or the prescribed medication. He denied any current psychiatric symptoms or treatment, and specifically denied taking any current psychiatric medication. The examiner noted the Veteran's responses to be coherent and relevant, but frequently incomplete. The Veteran denied any auditory hallucinations, but stated that he saw spirits during childhood. He specifically denied having such experiences during service. The Veteran described his typical mood as "just normal." He denied any depression or anxiety, suicidal ideation, or panic attacks. He described his sleep as "good" since he started receiving home oxygen treatment. He had some vague memory complaints. He was able to recall 3 out of 3 items immediately, but none after five minutes. With cues, he could recall all the items. He was able to repeat a six- digit sequence and reverse a four-digit sequence. These findings indicated the Veteran's immediate memory was intact, and his intermediate memory was mildly impaired. As noted previously, his long-term memory was poor. His judgment and reasoning were intact. The Axis I diagnoses were: 1. No mental disorder; 2. History of alcohol abuse reportedly in sustained full remission; and 3. Probable substance-induced persisting amnestic disorder. The Axis II diagnosis was antisocial personality traits per record. He stated that there were insufficient symptoms to warrant a specific psychiatric diagnosis related to the Veteran's military service. Based on the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Although the record reflects that the Veteran was diagnosed with schizophrenia, such a diagnosis was last reported in 1987. Since that time, there is no indication in the record that the Veteran has experienced any symptoms, received any treatment, or maintained a diagnosis of schizophrenia or another acquired psychiatric disorder. Indeed, the November 2009 VA examiner indicated that there was insufficient symptomatology to warrant a specific diagnosis. The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (current disability requirement is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim). In other words, the evidence must show either that the Veteran currently has the disability for which benefits are being claimed, or that he had that disability at some time during the pendency of the claim. Here, there is no such evidence. To the extent that the VA examiner diagnosed substance- induced amnestic disorder, there is no indication that this condition was incurred in or otherwise related to service. Service treatment records do not reflect any drug or alcohol abuse, while the Veteran's post-service treatment records reflect a lengthy history of alcohol dependence. In this regard, alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. Drug abuse is the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301 (2009). Alcohol abuse and drug abuse, unless they are a secondary result of an organic disease or disability, are considered to be willful misconduct. 38 C.F.R. §§ 3.301(c)(2), 3.301(c)(3) (2009). The isolated and infrequent use of drugs by itself will not be considered willful misconduct. However, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c)(3) (2009). The law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998). However, a Veteran may be service connected for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his service-connected disability. In order to qualify for service connection, the Veteran must establish, by clear medical evidence, that his alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder, and that it is not due to willful wrongdoing. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In this regard, the Board notes that the Veteran's representative has asserted that alcohol is a known substance that people with psychiatric problems are known to turn to as a way to self-medicate instead of seeking help from medical professionals and seems reasonable to assume that the Veteran's heavy alcohol use may be masking the symptoms of a psychiatric disorder. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this regard, the record contains no competent medical evidence indicating that the Veteran's alcohol use was masking a psychiatric disorder. The Veteran and his representative have not established that they have the requisite expertise to establish this fact. In fact, as noted above, the most recent VA examination indicated that the Veteran has a substance-induced amnestic disorder, and not the other way around. For the reasons outlined above, service connection is not warranted. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs