Citation Nr: 1300531 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 97-07 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran had active service from November 1961 to April 1962. This case comes before the Board of Veterans' Appeals (Board) on appeal from on appeal from a September 1994 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In a decision dated in October 2006, the Board denied service connection for a personality disorder on the grounds that the Veteran had a personality disorder that preexisted service and had not been aggravated therein. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2008, the Court issued an Order vacating the Board's October 2006 decision and granting the parties' Joint Motion for Remand. In February 2009 the Board remanded the matter for further development consistent with the Joint Motion for Remand. No further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A preexisting personality disorder was not aggravated during service beyond the natural progress of the disorder; and an acquired psychiatric disorder was not incurred in, and is not related to, active duty service. CONCLUSION OF LAW Neither a personality disorder, or a psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent March 2006. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). All relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeals have been obtained. The Veteran's service treatment records and VA treatment records have been obtained. In addition, he has been provided with numerous VA examinations and was afforded an opportunity to give testimony before the Board. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection The Veteran seeks service connection for a psychiatric disorder. According to the Veteran, he had no such condition before he entered service; his problems began during service. DD-214 confirms that the Veteran entered active duty service in November 1961. During his November 1961 enlistment examination the Veteran reported that he had stuttered in childhood. No abnormalities were detected or noted by the examiner. In January 1962 (and again in March 1962), the Veteran was referred to the psychiatric clinic because he was having difficulty adjusting to military life. A February 1962 social history report indicated that the Veteran was nervous, did not sleep well, had loss of appetite, and wanted to get out of service. The Veteran stated that he could not adjust to service, did not like school, never got along with anybody, and thought about suicide. An April 1962 comment based on an evaluation from the Neuropsychiatric Outpatient Clinic advises that the Veteran did not have a mental or emotional illness, however he did have personality disturbance, manifested by immaturity and inadaptability; and it was suggested that, if the Veteran was unable to perform his assignments, he should be separated from service. In April 1962 the Veteran was separated from service under honorable conditions. VA medical records dating from 1971 relate multiple admissions for psychiatric treatment. In 1971 the Veteran was admitted into a VA hospital secondary to complaints of nervousness. At the time he was under indictment for killing a man. He reported that he had also accidently shot himself in the left arm in 1966, and was stabbed in an altercation in a bar in 1968; and shot four times in the chest and abdomen on another occasion. During that hospital stay he reported that he began having episodes of feeling upset after 4 months in service, and that he continued to have a feeling of being upset after his discharge. Examination found him to be agitated, but he was oriented, and there were no delusions or hallucinations. Diagnosis was depressive neurosis and alcohol abuse. In October 1972 the Veteran was again hospitalized for psychiatric complaints. Diagnosis was psychopathic personality pattern. In August 1973 the Veteran was hospitalized secondary to complaints of depression and suicidal tendencies. The diagnosis was anxiety depression and psychopathic personality. In July 1979 the Veteran was hospitalized soon after his release from prison because he was having difficulty adjusting to life after incarceration. Diagnosis was antisocial personality disorder, severe, and episodic excessive drinking. On hospitalization in December 1989 the axis I diagnosis was alcohol dependence and adjustment disorder with depressed mood; and the axis II diagnosis was antisocial personality disorder. In January 1991 the Veteran was admitted for psychiatric care secondary to complaints of suicidal ideation. Axis I diagnosis was alcohol abuse; and axis II diagnosis was personality disorder not otherwise specified, with antisocial features. On hospitalization in July 1991 the diagnosis was depression. In January 1993 the Veteran was granted Social Security disability benefits effective March 22, 1991, based on severe personality disorder and alcoholism. On VA psychiatric examination in March 1997 the Veteran relayed a long history of legal difficulties, with incarcerations for murder, DWI, domestic violence, and firearms trafficking. Axis I diagnosis was dysthymic disorder and alcohol dependence, and Axis II diagnosis was antisocial personality disorder, by history. The examiner, a psychiatrist, added that the Veteran's behavioral personality disorder was not part of, nor an extension to, his dysthymic disorder; and his dysthymic disorder was not a progression of his personality disorder. In February of 2000 a Texas jury determined that the Veteran was a habitual criminal after his 9th DWI and sentenced him to 60 years in prison. In December 2011 he was paroled. On VA psychiatric examination in July 2006 the Veteran complained of paranoia since he was 12, and reflected that his biggest psychiatric problems began when he was bullied in school. The diagnoses included dysthymia, history of alcohol abuse, and antisocial personality disorder. The examiner commented that the Veteran's paranoia was more like a suspiciousness associated with his personality disorder and alcohol use, and was not the result of his military service. In March 2012 the Veteran was accorded a new VA psychiatric examination. During the examination he reported that he had been bullied in school, and that he had bullied others. He also reported that he saw a psychiatrist on one occasion during service; that he was diagnosed with personality disorder; and that he was chaptered out of service. Axis I diagnosis was adjustment disorder with mixed anxiety and depressive symptoms; and axis II diagnosis was antisocial personality disorder. According to the examiner, a psychologist, the Veteran's personality disorder pre-existed service and was not aggravated during service. She explained that the Veteran's self described behavior during his childhood, including bullying and poor peer relations, is typical of individuals with antisocial personality disorder. She also pointed out that the literature on personality disorders indicates that these disorders tend to develop throughout childhood, and added that there is no evidence in the literature that antisocial personality disorder is aggravated by conditions such as those experienced by the Veteran in service. As regards the Veteran's adjustment disorder, the examiner noted that the Veteran's symptoms were related to his recent release from long-term incarceration and not his long-ago separation from military service. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. The Secretary may show a lack of aggravation by establishing, with clear and unmistakable evidence, that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. See Wagner, 370 F.3d at 1096. In Wagner, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that the term "aggravation" has the same meaning in Sections 1111 (presumption of soundness) and 1153 (presumption of aggravation). Id. Although the same word "aggravation" has a common meaning in both instances, this linguistic overlap does not signal that the presumption of aggravation in Section 1153, with its attendant burden of proof rules, is triggered in presumption of soundness cases once preexistence of the injury or disease has been established. Rather, the aggravation analysis proceeds under the aggravation prong of the presumption of soundness. As such, the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Therefore, VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation. If the Secretary fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition. An important distinction between Section 1111's aggravation prong of the presumption of soundness and Section 1153's presumption of aggravation is the burden of proof. Under Section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner, 370 F.3d at 1096. Under Section 1153, however, the appellant bears the burden of showing that his preexisting condition worsened in service. Id. Once the veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Id. Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of ten percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause"as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Congenital or developmental defects such as personality disorder are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90. However, if superimposed injury or disease occurred, the resultant disability might be service connected. Discussion & Analysis In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Preliminarily, the Board notes that while a psychiatric disorder was not found during the enlistment examination, the Veteran was diagnosed, during and post-service, with personality disorder, and VA regulations provide that personality disorders will be accepted as showing preservice origin. 38 C.F.R. §§ 3.303(c), 3.306. There is, however, no evidence of any aggravation of the Veteran's pre-existing personality disorder beyond the natural progression of the disorder. In fact, all VA examiners note that the Veteran's personality disorder was not aggravated by service. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). Although there is evidence of symptoms during service, there is no evidence of any worsening in symptomatology during service beyond the natural progress of the Appellant's pre-existing personality disorder; the absence of which is sufficient to rebut the presumption of aggravation prong of 38 U.S.C.A. § 1111. The Board accordingly finds, by clear and unmistakable evidence, that there was no increase in disability of the Veteran's pre-existing personality disorder during service so the presumption of aggravation is rebutted. Moreover, personality disorders, alone, are not diseases or injuries for which VA compensation can be paid (38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90), and there is no probative evidence of any superimposed injury or disease. In fact, a March 1997 VA examiner indicated that the Veteran's personality disorder was not related to his acquired psychiatric disorder; and the August 2012 examiner agreed. Although a VA examiner in 2006 opined that the Veteran likely had symptoms of depression superimposed with his personality disorder since his age of 12, she stressed that the disorder preceded, and was not a result, of the Veteran's military service. There is no probative evidence of record that contravenes this evidence. To the extent that the Veteran has expressed the opinion that his pre-service personality disorder was aggravated beyond the natural progression of the disorder during service, his opinion as a lay person is limited to inferences that are rationally based on his perception and that do not require specialized education, training, or experience. The Veteran is not shown to be qualified through specialized education, training, or experience to offer medical diagnoses or opinions; so the Veteran, as a lay person is not competent to opine with regard to the natural progress of personality disorders. As for service connection for an acquired psychiatric disorder, VA medical records chronicle a long history of psychiatric treatment for alcohol abuse and other acquired disorders, including depression, dysthymia, and adjustment disorder, but there is no record of an acquired psychiatric disorder in service; no evidence of psychosis in the year after service (38 C.F.R. § 3.384); and no medical opinion evidence, whatsoever, that relates any acquired psychiatric disorder to service. To the extent that the Veteran now propounds that his psychiatric disorder(s) began during service because he was fine before he went into service, this contradicts his earlier admissions of having had behavioral problems during childhood, including stuttering and bullying. The Board consequently finds the Veteran's contention to be of no probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence").; see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (providing that the credibility of a witness can be impeached by a showing of inconsistent statements). Additionally, to the extent that the Veteran suggests that his behavior during service was symptomatic of an acquired psychiatric disorder diagnosed later in life, no medical provider has made such an assertion; and, again, it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer medical diagnoses or opinions. This leaves the record simply showing the onset of an acquired psychiatric disorder years after service. This is not a basis upon which to establish service connection. Accordingly, the weight of the evidence is against the claim and the benefit of the doubt standard of proof does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs