Citation Nr: 1304775 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 08-09 451 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), chronic undifferentiated schizophrenia, alcohol addiction, sociopathic personality disturbance and chronic brain syndrome associated with alcohol intoxication. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to May 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the RO. In April 2010, the Board determined that new and material had been submitted to reopen the claim and remanded the underlying issue of service connection for further development. In a decision in December 2010, the Board denied the issue currently on appeal. The Veteran then appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2011, the Court granted a Joint Motion For Remand (Joint Motion), vacating the December 2010 Board decision. In the Joint Motion the parties agreed that the Board in its previous decision did not entirely accurately characterize the May 2010 VA conclusion within the context of the entire report. A review of the Virtual VA paperless claims processing system shows additional documents which are either duplicative of the evidence of record or are not pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The currently demonstrated schizophrenia and depressive disorder are shown as likely as not to have had their clinical onset during the Veteran's of active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by a an innocently acquired psychiatric disorder, to include schizophrenia and depressive disorder, are due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. In light of the favorable disposition, that is, granting service connection for an innocently acquired psychiatric disorder, to include schizophrenia and depressive disorder, further discussion here of compliance with the VCAA is not necessary. Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 ; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Factual Summary The Veteran asserts that his psychiatric disorder is the result of incidents that occurred in Korea, to include coming under fire while serving for 18 months with the 253rd Engineer Construction Battalion and being wounded and held in a prisoner of war (POW) camp where he was tortured. Specifically, the Veteran reports being captured on a secret mission with two others, including a female photographer who was taking pictures. He indicates that they were marched to a POW camp and tortured with rats in their cells. He stated that, after two months, he escaped and attempted to return to his unit when he ran into direct fire. The Veteran also asserted at one time that, while on Kogino Island in Korea, transporting civilians away from enemy fire, he was struck in the left forehead, shot in his right ankle and suffered a fracture and an injury to his Achilles tendon. The service treatment records contain a March 1952 enlistment examination report, which was negative for findings of any mental disorder. A June 1952 evaluation by a psychologist shortly after the Veteran entered service included an opinion by a social work technician that he might have possible mental deficiency. The entry further contained findings of passive-aggressive, anti-social personality. A September 1952 service treatment record showed findings of a fractured right heel, but not an injury related to a gunshot wound. A January 1953 entry showed treatment for a laceration over the left eye, which the treatment provider indicated happened when the Veteran was fooling around with friends and hit his head on a foot locker. In conjunction with a Special Court Martial, the Veteran underwent neuropsychiatric examination in February 1954. It was determined that he was not insane, possessed sufficient mental capacity to know the difference between right and wrong, and was considered to be mentally responsible for his acts. He was diagnosed as having a chronic, severe inadequate personality. It was recommended that he be separated from service. The available personnel records include a request for action and a transcript of Special Court Martial proceedings in March 1954. In the request for action in January 1954, his commanding officer reported that the Veteran had been a member of A Company, 43rd Engineer Construction Battalion since July 20, 1953. Prior to that, he was noted to have been a 5-ton dump truck driver, but was removed because of poor maintenance of his vehicle and reckless driving. He was then assigned to a 10- ton roller, but later removed because of poor vehicle maintenance. The Veteran then was noted to have been reassigned to general construction work when the quality and quantity of his work was very poor in that he did not accomplish any job unless he was closely watched or would disappear and go to the snack bar or service club. He was reassigned to the motor pool, but did not exhibit any degree of proficiency in any job assigned. His efficiency rating was unsatisfactory, and his character rating was poor. The records also showed that the Veteran was absent without leave (AWOL) for one day in December 1953 and was punished by summary court martial. He was also AWOL from reveille in February 1954 and punished by 14 days restriction. The transcript of the March 1954 Special Court Martial included testimony from several of the Veteran's supervisors. They described him as a sloppy, disrespectful soldier who did everything he could to avoid any type of work. They further indicated that he could not be trusted to complete any task and feigned ignorance or simply walked away from whatever job he was assigned to, often winding up at the snack bar or service club. Ultimately, it was recommended that the Veteran should be discharged from the service because of unfitness and given an undesirable discharge. (Note: this was eventually upgraded to a general, under honorable conditions discharge, after service.). Post-service, the private medical records dated in June 1965 showed that the Veteran began having problems with alcohol addiction. In June 1966, he was diagnosed with chronic brain syndrome associated with alcohol addiction. They noted that he had a sociopathic personality disturbance (alcohol addiction). The Veteran was first diagnosed with chronic schizophrenia, paranoid type, by VA treatment providers in March 1970, some sixteen years after his discharge from active duty. The Veteran continued to be treated for alcohol addiction and psychiatric problems from 1970 to the present. Aside from PTSD, the Veteran has been variously diagnosed with chronic undifferentiated schizophrenia, sociopathic personality disturbance and chronic brain syndrome associated with alcohol intoxication. A VA progress note in February 1994 contained an opinion that the Veteran's complaints and possible psychosis might be related to his long years of alcohol dependence. The Veteran underwent a VA examination in May 2010. The VA examiner opined that there was no evidence of any psychiatric condition, to include PTSD, chronic undifferentiated schizophrenia, alcohol addiction, sociopathic personality disturbance and chronic brain syndrome associated with alcohol intoxication, which was caused by or a result of the Veteran's active duty service. The examiner reviewed evidence from June 1952 and concluded that "current interpretation of the data [from 1952]" would suggest that he might have [. . . .] the beginnings of a psychotic disorder" while in service. He stated that the Veteran's condition during service was "consistent with the onset of psychosis, schizophrenia in particular." He further noted that the 1954 neuropsychiatric examination conducted in order to determine retention or discharge and observed that, ". . . he still [might] have been very much at the beginnings of a psychotic disorder even if not displaying evidence of any psychotic thinking disorder at the time when he was 20." The VA examiner further opined that, up to the age of 20, the Veteran exhibited signs of a personality disorder, early signs of psychosis, possibly an attention and conduct disorder as well. The VA examiner concluded that these conditions likely preexisted service and were not the result of any documented event during active service. The VA examiner also indicated that the Veteran's discharge status aggravated his condition. In addition, because the examiner could not differentiate any of the Veteran's symptoms from the chronic alcohol abuse in the years immediately after service, he noted that the findings in 1994 and 1995 first indicated that the Veteran was likely experiencing an acute psychotic reaction. The examiner provided a diagnosis of schizophrenia, paranoid type; alcohol dependence fully sustained remission; depressive disorder; and personality disorder. In January 2012, an opinion was obtained from the Veterans Health Administration (VHA). The VHA examiner noted the diagnoses rendered by the VA examiner during the VA examination in May 2010 and referred to a May 1983 psychiatric evaluation, whereby another examiner was of the opinion that there did not seem to be evidence of psychosis and provided a diagnosis of alcohol abuse in remission and dementia associated with alcoholism. The VHA examiner explained that psychiatric diagnoses had considerably changed since 1952, noting that diagnostic terms in the 1950s were largely based on psychoanalytic concepts, while current terms are more commonly based on epidemiologic and brain research, in addition to clinical findings. He further stated that diagnoses might vary over time and among evaluators and that alcohol abuse created additional difficulty and might be comorbid with other psychiatric disorders. The VHA examiner also elaborated that personality disorders were chronic conditions usually present since adolescence, which might overlap with others diagnoses as symptoms wax and wane. In the instant case, the VHA examiner stated that an innocently acquired psychiatric disorder might be expected to refer to disorders other than those related to alcohol use. The VHA examiner noted that as the May 2010 VA examination was the most recent evaluation, he deferred to the diagnoses rendered by the May 2010 examiner. He stated that the May 2010 VA examiner correctly considered whether the Veteran's behavior during service could have comprised prodromal symptoms of schizophrenia, which might occur prior to a diagnosis of schizophrenia. The VHA examiner concluded that he could not reconcile the various diagnoses and specify which symptoms were associated with each disorder as there was a significant overlap and it would be impossible and artifical to attempt to attribute symptoms to one diagnosis or another. The VHA examiner was of the opinion that if schizophrenia, paranoid type; alcohol dependence fully sustained remission; and depressive disorder was considered "an innocently acquired psychiatric disorder", then it was at least as likely as not that any current condition had its clinical onset during the Veteran's period of active service or was caused by events and incidents that occurred during service. Analysis The Veteran contends that he has a psychiatric disorder that is related to his period of service. As discussed, the March 1952 enlistment examination evaluated the Veteran's psychiatric status as normal. As noted, if defects, infirmities or disorders are not noted when a veteran is examined and accepted for service, the presumptions of soundness may be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As a psychiatric disorder was not noted on the entrance examination into service, the Veteran is entitled to the presumption of soundness. While the May 2010 VA examiner was of the opinion that Veteran exhibited signs of a personality disorder, early signs of psychosis, and possibly an attention and conduct disorder, that likely preexisted service, his opinion does not rise to the level of clear and unmistakable evidence that a disorder preexisted service. The evidentiary standard is an onerous one and the result must be undebatable. Therefore, the presumption of soundness has not been rebutted and the Board finds that the Veteran is presumed to have been in sound condition when he entered active service for the claimed disability of a psychiatric disorder. Given that the Veteran is presumed to have been in sound condition, the salient question is whether the Veteran's current psychiatric disorder is related to service. As presented, a review of the record shows that there are medical opinions which are favorable and not favorable to the claims on appeal. With regard to medical opinions, the credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts. Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008). Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Considering the relative merits of the analytical findings and the details of the opinions, the Board places more weight on the favorable VHA opinion dated in January 2012. The VHA examiner considered the nature of the psychiatric disorder, the Veteran's history and relevant longitudinal complaints and proffered an opinion which concluded that the Veteran's innocently acquired psychiatric disorders, to include schizophrenia and depressive disorder, were at least as likely as not a condition that had its clinical onset during the Veteran's period of active service or was caused by events and incidents that occurred during service. This opinion is highly probative as it reflected the VHA examiner's specialized knowledge, training, and experience as to the etiology of the Veteran's psychiatric disorder as well as consideration of all relevant lay and medical evidence of record. The VHA examiner explained that psychiatric diagnoses considerably changed since 1952, noting that diagnostic terms in the 1950s were largely based on psychoanalytic concepts, while current terms are more commonly based on epidemiologic and brain research, in addition to clinical findings. The Board rejects the unfavorable May 2010 VA opinion regarding the nature and etiology of the Veteran's psychotic disorder as it is inherently inconsistent. On the one hand this examiner concluded that there was no evidence of any psychiatric condition which was caused by or a result of the Veteran's active duty service. On the other hand, he stated that the Veteran's condition during service was "consistent with the onset of psychosis, schizophrenia in particular." For these reasons the Board rejects the May 2010 VA opinion as it is self-contradicting. In light of the fact that the Board is granting service connection for an innocently acquired psychiatric disorder, to include schizophrenia and depressive disorder, which are rated under the same General Rating Formula for Mental Disorders (38 C.F.R. § 4.130, Diagnostic Codes 9201-9440), as are the other diagnosed psychiatric disorders, a separate discussion of the Veteran's other psychiatric disorders is unnecessary. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130; see also Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (regarding whether separate ratings would ever be warranted for variously diagnosed psychiatric disabilities). As for any diagnosis associated with alcohol addiction, the Board notes that for claims received after October 31, 1990, compensation shall not be paid if a disability is the result of the Veteran's own willful misconduct or abuse of alcohol. 38 U.S.C.A. § 105; 38 C.F.R. § 3.301. As the Veteran's claim, which initiated the current appeal, was received in April 2007, the Veteran is not entitled to disability benefits as a result of alcohol abuse. However, service connection may be established for alcohol abuse secondary to a service-connected disability. Nevertheless as the Veteran is being granted service connection for a psychiatric disorder, the issue of whether his alcohol addiction is secondary to the service-connected psychiatric disorder is moot as it would be rated under the same General Rating Formula for Mental Disorders as is his service-connected psychiatric disorder for the reasons discussed hereinabove. As for the diagnosis of a personality disorder, personality disorders, as such, are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c). Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole establishes that the conditions in question were incurred or aggravated during service. VAOPGCPREC 82-90 (July 18, 1990). With regard to congenital or developmental defects, service connection may not be granted for a defect; however, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service-connected. See VAOPGCPREC 82-90; 38 C.F.R. § 4.127. Nevertheless, as the evidence supports the finding that the Veteran's innocently acquired psychiatric disorder, to include schizophrenia and depressive disorder, as likely as not had its clinical onset during his period of active service, the question of whether there was aggravation of the personality disorder, or whether there is a mental disorder that was superimposed upon a personality disorder, is essentially moot. In resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for an innocently acquired psychiatric disorder, to include schizophrenia and depressive disorder is warranted. 38 U.S.C.A. § 5107(b). ORDER Service connection for an innocently acquired psychiatric disorder, to include schizophrenia and a depressive disorder, is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs