Citation Nr: 1127643 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 07-14 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disability, variously diagnosed. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to January 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Pittsburgh, Pennsylvania Department of Veterans' Affairs (VA) Regional Office (RO), wherein the RO determined that no new and material evidence had been received to reopen a previously denied claim for service connection for a nervous condition. The Veteran testified at a video conference hearing before the undersigned Veterans' Law Judge in November 2008. A transcript of that hearing has been associated with the claims file. By a February 2009 decision, the Board reopened the Veteran's claim for service connection for a nervous condition and remanded the claim for additional development, re-characterizing the issue as entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran's currently diagnosed acquired psychiatric disability, variously diagnosed, did not originate in service or for many years thereafter and is not related to any incident during active service. 2. The Veteran's personality disorder preexisted service and did not undergo an increase in severity during service. CONCLUSION OF LAW The criteria for the establishment of service connection for an acquired psychiatric disability, variously diagnosed, are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.306, 3.307, 3.309, 3.384 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2010). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits. Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Prior to the initial adjudication of the Veteran's claim for service connection in the rating decision, he was provided notice of the VCAA in May 2005. An additional VCAA letter was sent in March 2009. The VCAA letters indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran received additional notice in June 2006, October 2008, and March 2009 pertaining to the downstream disability rating and effective date elements of his claim, and was furnished a Statement of the Case in April 2007 with subsequent re-adjudication in a January 2010 Supplemental Statement of the Case. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Mayfield and Pelegrini, both supra. All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service treatment records, Social Security Administration (SSA) records, private medical records, VA outpatient treatment reports, a VA examination, and statements and testimony from the Veteran and his representative. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2010). Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active military 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 progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. Compare 38 C.F.R. § 3.304(b)), with Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent that it states that the presumption of soundness may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). See also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2010). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. With regard to VA examinations, the Board notes that the most recent examination is not necessarily and always controlling; rather, consideration is given not only to the evidence as a whole but to both the recency and adequacy of examinations. See Powell v, West, 13 Vet. App. 31, 35 (1999). Analysis In statements and testimony presented throughout the duration of the appeal, the Veteran has maintained that his current acquired psychiatric disability began during his active service. In a November 2008 videoconference hearing, the Veteran testified that he could not deal with service. He reported that, on one occasion, while everyone was standing in front of their bunks in the morning, one man lay on the floor in a pool of blood and the drill instructor kicked him and yelled at him, after which medics had come to retrieve him. The Veteran stated that, while the Medical Board discharged him for a condition which they found pre-existed service, he did not have that condition prior to his active service. He reported that his aggressive personality problem began to affect him after he returned to high school following his active service and that he received treatment on and off at the VA and private treatment providers from 1969 for schizophrenia and headaches. Finally, the Veteran's representative testified that he suffered from a disability in service, characterized as personality disorder which triggered his current psychiatric disability, characterized as schizophrenia. Service treatment reports reflect that, upon entry into active service, the December 1967 enlistment examination reflects a normal clinical evaluation of the psychiatric system and the Veteran did not report any history of psychiatric symptoms. The enlistment examination found the Veteran was fit and qualified for military service. In January 1968, after approximately 21 days of active service, the Veteran was admitted to a sick list and provided a Medical Evaluation Board assessment. At this time the Medical Evaluation Board noted that the Veteran was admitted to psychiatric evaluation in January 1968 with a diagnosis of schizoid personality after an unsuccessful attempt to stab himself in the abdomen with a bayonet. The Veteran was noted to have difficulty adjusting to the Marine Corps since his arrival and had shown his maladjustment by episodes of transient dizzy spells, tearfulness, an inability to follow orders, and his recent suicidal gesture. After an adequate psychiatric evaluation, the Veteran was diagnosed with passive aggressive personality, passive dependent type, and the Medical Evaluation Board found he was unsuitable for further service in the U.S. Marine Corps. The Medical Evaluation Board also found the Veteran suffered from no disability which was the result of an incident of service or which was aggravated thereby. Thereafter, the Veteran was discharged from active service in January 1968. SSA records reflect that the Veteran was awarded Social Security disability benefits for substance addiction disorder (alcohol) and affective disorder in June 1993, and that the Veteran's disabilities began in October 1992. Private and VA medical records, including SSA psychiatric review technique and residual functional capacity assessments, from January 1969 to March 2009 reflect that the Veteran was hospitalized for acute and chronic alcoholism and alcohol abuse in April 1979 and August 1974 and initially complained of depression in August 1987 with a diagnosis of rule out dysthymic disorder and adjustment disorder with mixed mood. Thereafter, he was hospitalized in September 1987 and diagnosed with adjustment disorder with depressed mood. Subsequent private and VA treatment records reflect that the Veteran was variously treated for and diagnosed with depression, schizophrenia (characterized as chronic, paranoid and depressed), schizoaffective disorder, alcohol/ETOH abuse and dependence, depressive disorder, rule out major depressive disorder/major depression, major depression/major depressive disorder (including without psychosis), rule out schizophrenia versus adjustment disorder with psychotic features, and dysthymia/dysthymic disorder. In a May 1993 private psychiatric evaluation, the Veteran reported that he was released early from the Marine Corps as his Commander felt he was not ready for the service. In an August 1996 private psychiatric evaluation, the Veteran reported that he had maintained his drinking pattern since about 1971. A January 1998 private medical report notes the Veteran had over a 30 year history of ETOH dependence and depressive disorder, although he also specified that he had no psychiatric history until approximately one year ago after he broke up with his girlfriend and began to feel increasingly depressed and leading to three suicide attempts between January 1997 and March 1997. In an April 2009 VA examination, the Veteran reported that, upon enlistment into active service, he felt very uncomfortable with his drill instructor and cited four separate instances wherein he felt the military negatively impacted him. In the first instance, the Veteran reported that a fellow recruit had been taken away and beaten in the stomach, which he did not witness but heard about afterward. He also stated that the drill instructor had taken several Marines to a swamp where they had died, although he did not witness their deaths and could not provide any specifics about how they died. The Veteran also reported that one morning, while they were all standing in front of their bunks, the drill instructor arrived and kicked a fellow recruit who had attempted suicide and laid on the floor in a pool of blood, although he was unclear as to whether the recruit died or not. He then stated that while running with his group, the drill instructor instructed them to run over anybody who had fallen, and he had trampled a few individuals, but he was unable to provide any detail about their fates. The Veteran reported that after this last incident he "cracked" and attempted to stab himself in the chest with a bayonet in the middle of the night when he was caught by a night guard. Following a mental status evaluation, the Veteran was diagnosed with psychotic disorder, not otherwise specified, unrelated to military experiences, and alcohol dependence in reported sustained full remission, unrelated to military experiences. The Axis II diagnostic impression included passive-aggressive personality disorder, by history, unrelated to or not exacerbated by military experiences. The examiner found that the Veteran presented with symptoms of a psychotic disorder, not otherwise specified and which were not at least as likely as not related to his experiences in the military. He also found that the Veteran's personality disorder clearly and unmistakably preexisted his entrance into the Marines but was not exacerbated by his very limited experiences in basic training. The examiner explained that there was no evidence to suggest that the Veteran had experienced any increase in severity of his preexisting personality disorder due to his military experiences and any increase in severity represented a natural progression of the condition. He stated that the Veteran's emergence of psychotic symptoms appears to have occurred over time and only became apparent in the late 1980's, following his relatively successful career with Nabisco. The examiner also found that the Veteran had a remote history of alcohol dependence, reportedly in sustained full remission, which was also unrelated to any condition experienced while in the military and not related to military experiences. Finally, he explained that the Veteran presented with relatively limited psychiatric difficulties in this evaluation and, with his continued medication regimen prescribed through his care at the VA, his presenting symptoms appeared unlikely to worsen and would continue to remit. After a review of the record, the Board concludes that entitlement to service connection for an acquired psychiatric disorder, variously diagnosed, is not warranted. Initially, the Board finds that, based upon the medical and satisfactory lay evidence set forth above, the Veteran had a personality disorder which existed prior to service and was not aggravated by his active service. While the Veteran's entrance examination reflects no psychiatric abnormalities upon clinical evaluation, the service personnel records reflect the Medical Evaluation Board assessment was performed within a month of the Veteran's entrance into active service. The Medical Evaluation Board findings indicate that Veteran had psychiatric treatment within 21 days of his entrance into active service, and found that he had a passive aggressive personality, passive dependent type, he suffered from no disability which was the result of an incident of service or which was aggravated thereby, and he was unsuitable for further service in the U.S. Marine Corps. Moreover, the April 2009 VA examiner's opinion found, based upon a review of the claims file, the Veteran's history, and an examination of the Veteran, that the Veteran's personality disorder clearly and unmistakably preexisted his entrance into the Marines and was not exacerbated by his very limited experiences in basic training. Therefore, the Board finds that the contemporaneous findings and treatment in service, within 21 days of the Veteran's enlistment examination, in conjunction with the post service medical evidence indicating a personality disorder was present prior to the Veteran's military service constitutes clear and unmistakable evidence that the Veteran's personality disorder existed before his entrance into active military service. 38 U.S.C.A. § 1111, 1132, 1137; See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The Board observes that, while the Medical Evaluation Board findings in the service treatment records noted the Veteran was initially admitted to psychiatric treatment for schizoid disorder, following an adequate psychiatric evaluation he was diagnosed with passive aggressive personality, passive dependent type, and the Medical Evaluation Board found the Veteran suffered from no disability which was the result of an incident of service or which was aggravated thereby. Therefore, as the service treatment records demonstrate that there was no measured worsening of the personality disorder during active service, this reflects a lack of aggravation of the Veteran's preexisting personality disorder. 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d at 1096 Moreover, the April 2009 VA examiner opined that, based upon a review of the claims file, the Veteran's history, and an examination of the Veteran, there was no evidence to suggest that the Veteran had experienced any increase in severity of his preexisting personality disorder due to his military experiences and that any increase in severity represented a natural progression of the condition. Therefore the post service medical evidence of record also does not reflect any findings of an increase in disability during the Veteran's active service. Accordingly, the Board concludes that the service treatment records in conjunction with the findings of the April 2009 VA examiner constitutes clear and unmistakable evidence that the Veteran's personality disorder existed before his entrance into military service and was not aggravated by active service. 38 U.S.C.A. § 1111, 1132, 1137, 1153; Wagner v. Principi, 370 F.3d at 1096. For the foregoing reasons and bases, the Board determines that the evidence of record establishes that the Veteran's personality disorder existed prior to his active service and was not aggravated by his active service. See id. The Board also finds that the Veteran's currently diagnosed acquired psychiatric disorder, variously diagnosed, was not documented in the service treatment records during his active service and a psychiatric disorder was not treated until August 1987, at which time the Veteran initially complained of depression and was diagnosed with rule out dysthymic disorder and adjustment disorder with mixed mood, approximately nineteen years following his discharge from active duty. In addition, the Board finds that there is no lay or medical evidence in the record of a nexus between the Veteran's currently diagnosed acquired psychiatric disorder and the Veteran's active service. In this regard, the Board observes that the Veteran's various statements to private treatment providers do not reflect report of continuity of symptoms since service. In May 1993, he reported to a private treatment provider that he was released early from the Marine Corps as his Commander felt he was not ready for the service. In an August 1996 private treatment report he stated that he had maintained his drinking pattern since about 1971. Finally, in January 1998, the Veteran reported to a private treatment provider that he had over a 30 year history of ETOH dependence and depressive disorder, but then specified that he had no psychiatric history until approximately one year ago after he broke up with his girlfriend and began to feel increasingly depressed. Additionally, the April 2009 VA examiner, who diagnosed the Veteran with psychotic disorder, not otherwise specified, found that the Veteran presented with symptoms of a psychotic disorder, not otherwise specified, which were not at least as likely as not related to his experiences in the military, explaining that the emergence of psychotic symptoms appears to have occurred over time and only became apparent in the late 1980's, following his relatively successful career with Nabisco. This opinion was predicated upon an examination and interview of the Veteran, the Veteran's history, and a review of the claims file, including the Veteran's service treatment records, and the private and VA medical records. In addition, the Board finds tht the examiner provided a thorough and sufficient rationale for his opinion and even noted the Veteran's service and post service treatment records, in his examination report. Therefore, the Board finds that there is no evidence of record of an acquired psychiatric disorder during the Veteran's active service and no evidence of a nexus between the Veteran's current acquired psychiatric disability and his active service. The Board notes that while the Veteran is competent to describe certain features or symptoms associated with his mental illness, he is not competent to provide an opinion regarding the etiology of his current psychiatric disorder. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (lay evidence is competent when a lay-person is competent to identify the medical condition, when a lay-person is reporting a contemporaneous medical diagnosis, or when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). See also Jandreau, 492 F.3d at n. 4 (a lay-person may be competent to identify a condition where the condition is simple, like a broken leg, but not if the condition is, for example, a type of cancer). In this case, the Board acknowledges the Veteran's statements to the effect that he experienced in-service incidents and symptoms thereafter, and that such incidents in service were precipitating factors leading up to his current psychiatric condition, or that such had aggravated a preexisting personality disorder, which triggered his current psychiatric disorder. However, the etiology of the Veteran's psychiatric disorder (variously diagnosed), which is a complex psychiatric disability, is not a simple identification that a lay-person is competent to make. There is no indication that the Veteran (or his representative) has the requisite medical training or expertise to opine as to the etiology of this disability. Therefore, given the medical expertise necessary in making such an opinion as to the etiology and the assignment of symptoms to a particular diagnosis, his statements regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. Hence, his lay assertions in this regard have no probative value. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current acquired psychiatric disability, variously diagnosed, is related to his active military service. ORDER Entitlement to service connection for an acquired psychiatric disability, variously diagnosed, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs