Citation Nr: 1305299 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 07-39 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, appellant's mother ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 2004 to August 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which, in pertinent part, denied entitlement to service connection for schizophrenic disorder. The October 2006 decision also denied entitlement to non-service connected pension and the Veteran appealed that denial. However, in a March 2011 statement, the Veteran withdrew the claim for pension. Therefore, the issue is not on appeal. The Veteran was afforded an April 2011 hearing before the undersigned at the RO (Travel Board). The hearing transcript is not associated with the record. In a May 2011 letter, the Board notified the Veteran that the hearing transcript was unavailable and offered to provide another hearing. It also notified her that if she failed to respond within 30 days of the letter, she would be presumed to not desire another hearing. See 38 C.F.R. § 20.717 (2011). The Veteran has not responded or requested another hearing. In July 2011, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's acquired psychiatric disability clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated in active service beyond natural progression. CONCLUSION OF LAW The Veteran's acquired psychiatric disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in June 2006 that 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 letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. VCAA-Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her 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. VA has obtained records of treatment reported by the Veteran, including service treatment records, records from various federal agencies, and private medical records. Regarding records from Harborview Medical Center, the RO sent two requests for relevant psychiatric treatment records in July 2009 and February 2011, with notice of each request sent to the Veteran on the same day. In response to the July 2011 Board remand, the RO requested that the Veteran provide an updated authorization form for that facility so that another request could be made. She responded by signing the forms provided but she did not fill out the section indicating for which medical facility she was providing authorization. In December 2011, the RO informed the Veteran of the issue with the forms she submitted and requested that she properly complete the authorization form for Harborview Medical Center. To this date, she has not responded. The Board recognizes the Veteran's representative's December 2012 contention that the Veteran's service personnel records have not yet been requested. However, the service personnel records were obtained and have been associated with the claims file. The Veteran was afforded VA examinations in July 2006 and February 2012; the Board found the resulting examination reports to be inadequate because they included opinions that the claimed psychiatric disability pre-existed service, but did not address whether the disability clearly and unmistakably pre-existed service. The Board obtained a VHA medical opinion and addendum in September 2012 and November 2012 respectively, which together addressed the proper legal standards. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the acquired psychiatric disorder issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board's July 2011 remand was for purposes of obtaining an adequate medical opinion and to obtain the records of treatment from Harbor View. As outlined above, the agency of original jurisdiction sought authorization for the private medical records; and the Veteran was advised that she should submit the authorization form or the records. In addition, the Veteran's service personnel records were obtained and a supplemental statement of the case was issued in June 2012. The Board insured that it received a medical opinion in accordance with its remand instructions, by sending the claims file to a Board Certified psychiatrist for an opinion and then seeking an addendum. Since the record reflects compliance with the July 2011 remand instructions, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (2997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre- service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing 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. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. No psychiatric disability was noted on the Veteran's August 2004 entrance examination when she was accepted for active service. Consequently, the presumption of soundness attaches and can only be rebutted by clear and unmistakable evidence that the Veteran's disability both pre-existed service and was not aggravated by service. Psychiatric treatment records reveal complaints of visual and auditory hallucinations, paranoia, suspiciousness, hostility, delusions, sleep disturbance, and sudden, drastic changes in mood prior to service. On more than one occasion, including during treatment in October 2004, the Veteran reported hearing voices, seeing ghosts and shadowy figures, feeling spirits, and believing that a being had taken over her mother's body. The physician described her mood and affect as labile, stating that she would be cooperative and then selectively hostile or physically aggressive without warning. A psychotic disorder, not otherwise specified, was diagnosed in the October 2004 treatment record. An April 2011 letter E.P., LCSW (program coordinator of Sound Mental Health), reported that she had treated the Veteran since December 2002. He was originally diagnosed with psychosis, not otherwise specified; but the diagnosis was later changed to Bipolar I. Her symptoms included depressed mood, poor sleep, irritability, visual hallucinations, and manic episodes. She returned to Sound Mental Health in March 2006, at which time she was diagnosed with schizophrenia. Her symptoms included auditory and visual hallucinations, paranoid thoughts, and trouble with concentration, motivation, and leaving the house. She reported constantly hearing voices of a derogatory, negative nature. Her visual hallucinations included seeing black shadowy figures and ghosts. A treatment record from Seattle Mental Health dated in March 2006, reflects that the Veteran reported that she first experienced psychiatric symptoms in the 5th or 6th grade. It was at that time that she began "feeling presences." Service personnel records demonstrate that the Veteran was sanctioned multiple times for failing to follow orders and for becoming disrespectful or hostile towards her superiors. Service treatment records demonstrate that she was admitted to the hospital with provisional diagnoses including adjustment disorder, not otherwise specified, and rule out schizophrenia. The physicians noted auditory and visual hallucinations, including hearing voices and seeing ghosts, paranoid behavior, delusions, hostility, and depression. Following service, the Veteran continued to report the same symptoms she experienced before and during service, including hallucinations, delusions, paranoia, and lability. In March 2006, psychotic disorder, not otherwise specified was diagnosed. The Veteran received a VA examination in July 2006, where she reported a continuation of the symptoms previously reported before and during service. The examiner diagnosed schizophrenic disorder, undifferentiated type and stated that this new diagnosis was a progression of the prior diagnosis. The rationale was that the Veteran claimed delusions, paranoia, and hallucinations; and her speech was disorganized. The examiner stated that it was uncertain whether she was confused or prevaricating her military history and that it was not possible to get a reliable history of her alcohol or substance abuse. In response to the July 2011 Board remand, the Veteran was provided with a second VA examination in February 2012. The claims file, including treatment records before, during, and after service were discussed in detail in addition to the Veteran's reports and personnel records. The examiner concluded that the Veteran's acquired psychiatric disorder (currently diagnosed as schizophrenia) "clearly" pre-existed service. The examiner noted that the symptoms she had consistently reported since before she entered the military (including psychotic auditory/visual hallucinations) supported the diagnosis of schizophrenia and demonstrated that the onset of her current disability predated service. The examiner also stated that the service treatment records demonstrated "progression" without indication of "exacerbation" of her symptoms during service and since discharge. The Board requested an additional opinion through the Veterans Health Administration (VHA). 38 C.F.R. § 20.901 (2012). In September 2012, a Board Certified Psychiatrist provided an opinion. The psychiatrist reviewed the claims file. He opined that the Veteran's psychiatric disability clearly and unmistakably pre-existed service; and that it clearly and unmistakably was not aggravated by service. He opined that the Veteran's symptoms in service were consistent with the natural progression of her pre-existing disability. He noted that the records made it clear that the Veteran showed signs of psychosis prior to entering military service. Specifically, he noted threatening and hostile behavior, episodes of rage, social isolation, poor sleep, fear of the dark, visual and auditory hallucinations, paranoia, delusions, talking to her herself, suspiciousness, labile mood and affect, racing thoughts, irritability, phobia about being alone, sensation fo spirits around her, disrespect of the law and authorities, poor concentration, and inappropriate laughter. He noted that the Veteran had been hospitalized three times from 2002-2004. He noted that there was suspicion of illicit drug use; and that court order alcohol and drug treatment was mandated following aggressive behavior prior to military service. The September 2012 psychiatrist also noted that when the Veteran entered military service, she denied any history of alcohol treatment, psychiatric treatment, and hospitalizations. During service, she was reprimanded for public intoxication, failure to report, exposing herself to a supervisor, failure to abide by safety regulations, disrespect towards a supervisor, insubordination, and an inability to comprehend tasks. The examiner noted that there was no evidence of any particularly aggravating factors during her military service. When she began having difficulty maintaining her military duties, she was referred for mental health intervention; but her symptoms did not stabilize sufficiently for her to continue with military service. There was concern about the possibility of malingering during psychiatric treatment in the military. The September 2012 psychiatrist noted some of the inconsistencies in the Veteran's statements. During a February 2006 examination, she reported that she had had paranoia for more than 10 years, and hallucinations since 2003. In another assessment, she reported that symptoms first bothered her in June 2005. She has also denied a history of substance abuse. During her July 2006 VA examination, she denied a history of mental illness prior to military service. The September 2012 psychiatrist explained that due to the complex nature of schizophrenia and schizoaffective disorder, it is common for a patient's initial symptoms to be attributed to other mental health disorders. He further explained that schizophrenia was a disease that impaired cognitive, perceptual, emotional, and behavioral functioning. With each relapse of psychosis, there was a deterioration in the patient's baseline functioning. Many times the patient never reached the previous level of functioning after an episode of psychosis. Some symptoms could stabilize over time; but others worsened and were debilitating for a lifetime. He further explained that complete remission of symptoms was not common; and noncompliance and substance abuse disorders adversely affected the course and outcome of schizophrenia. He concluded that the symptoms in the Veteran's case were consistent with a poor, long-term prognosis. The examiner subsequently submitted a November 2012 addendum in which he reiterated that there was no evidence that her pre-existing illness was aggravated in the military. Schizophrenia was subject to fluctuation, the Veteran had fluctuating symptoms before, during and after military service; but had continued its course; and was not aggravated by service. The Board acknowledges the Veteran's contention that her psychiatric symptoms began during or as a result of service or were aggravated therein. She is competent to report such psychiatric symptoms and when they began. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007.); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, the Board finds the Veteran to not be credible given multiple instances of inconsistent reports. As noted above, upon enlistment, she denied having received treatment within five years of enlistment but the record clearly documents that prior to service, she had received significant inpatient and outpatient psychiatric treatment for diagnosed psychotic disorder, not otherwise specified. In a February 2006 treatment record she reported that some of her symptoms began four to ten years prior and in a March 2006 treatment record, she stated that her first symptoms began in fifth or sixth grade when she began "feeling presences." However, she reported to the July 2006 VA examiner that her symptoms began during service. During the February 2012 VA examination, she denied experiencing auditory or visual hallucinations prior to enlistment; but once again, treatment records clearly demonstrate that she reported these symptoms before service. Therefore, the Board finds the Veteran's statements regarding the onset and aggravation of her symptoms to not be credible and does not afford them any weight when considering the evidence for and against the claim. Similarly, to the extent that the Veteran's mother has reported the onset of disability during service, such reports are not credible. The well documented treatment for a psychiatric disability prior to service, contradicts the reports of symptoms beginning only in service. The remainder of the evidence is clear and unmistakable that the current psychiatric disability pre-existed service. The VA opinions are all to that effect, and E.P.'s letter also shows similar symptoms and a psychosis before and after service. The evidence clearly and unmistakably shows that the pre-existing disability was also not aggravated in service. The oddly worded opinion provided by the VA examiner in February 2012, suggests that there was a "progression" but not "exacerbation" of schizophrenic symptoms in service; but says nothing about whether any changes were part of a natural progression. The pre-service, service, and post-service treatment and examination records report remarkably similarly symptoms during all three periods. The September 2012 VHA opinion and November addendum does; however, provide clear and unmistakable evidence that any change in service would have been part of the natural progression of the disability. That being said, the record does not show any specific symptom that was reportedly worse during service than it was before. The July 2006 VA examiner and other treating physicians did not address this issue and thus do not assist the Veteran in her claim for service connection. Based on the foregoing, the Board finds that the presumption of soundness in this case is rebutted as the evidence clearly and unmistakably demonstrates that the Veteran's acquired psychiatric disability clearly and unmistakably pre-existed service, and clearly and unmistakably did not undergo an increase in the underlying disorder beyond natural progression during or as a result of service, and thus was not aggravated therein. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). As there is not an approximate balance of evidence, reasonable doubt does not arise and the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER The claim for service connection for a psychiatric disability is denied. ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs