Citation Nr: 1311896 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-37 417 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Associate Counsel INTRODUCTION The Veteran served on active duty from June 13, 1977 to September 15, 1977. This matter comes before the Board of Veterans' Appeals (Board) from a June 2006 rating decision by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Board remanded the case to the RO in November 2009 and April 2011 for additional development of the record. The RO has complied with the remand directives. In September 2012, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board obtained a medical expert opinion from the Veterans Health Administration (VH A). The Veteran and his representative have been provided with a copy of the VHA opinion and then afforded the opportunity to submit additional argument and evidence. FINDINGS OF FACT 1. The Veteran is shown to have exhibited findings of mental retardation and a personality disorder prior to service. 2. The Veteran is not shown to have manifested complaints or findings referable to an innocently acquired psychiatric disorder including a psychosis during his period of active service. 3. The Veteran is not shown to have an innocently acquired psychiatric disorder that had its clinical onset during his period of active service or is due to an event or incident of that service. 4. The Veteran is not found to have presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to an innocently acquired psychiatric since his period of active service. CONCLUSION OF LAW The Veteran does not have an innocently acquired psychiatric disability due to disease or injury that was incurred in or aggravated by active service; nor may a psychosis be presumed to have been incurred therein; a personality disorder is not a disease or injury within the meaning of applicable legislation. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 4.9, 4.127. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in November 2005, January 2010, and April 2010 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records, VA outpatient treatment records, Social Security Administration records, and private medical records. Additionally, the Veteran was afforded a VA examination in May 2011. In September 2012, the Board obtained a VHA expert medical opinion. The Veteran and his representative have been provided a copy of the VHA opinion and then afforded the opportunity to submit additional argument and evidence, but no further argument or evidence has been submitted. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, that any additional existing evidence that is necessary for a fully informed adjudication of the claim has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran 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). Merits of the Claim Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). 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) (2012); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A Veteran is presumed to be in sound condition when entering service under 38 U.S.C. § 1111. This presumption of soundness attaches where there has been an induction examination during which the disability about which he 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). It has been held on multiple occasions that lay statements by a Veteran concerning a pre-existing condition, alone, are insufficient to rebut the presumption of soundness. See, e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners). VA's General Counsel has held that, to rebut the presumption of sound condition where the condition was not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that it was not aggravated by service beyond its natural progression. The claimant is not required to show the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If, on the other hand, a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, but he may bring a claim for service-connected aggravation of that disability. In that case, § 1153 applies and the burden falls on him, not VA, to establish aggravation. Wagner, 370 F.3d at 1096; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Mere temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition," that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 (1997); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Certain diseases, such as a psychosis, are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (of at least 10-percent disabling) within one year after service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the purposes of this presumption, "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384. However, personality disorders, mental deficiency, mental retardation and other such "defects" are not considered "diseases" or "injuries" within the meaning of applicable legislation and, thus, generally cannot be service connected as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a defect such as a personality disorder or mental deficiency during service may be service connected. See VAOPGCPREC 82-90, 55 Fed Reg. 45,711; Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Factual background The pre-service treatment records show that the Veteran underwent psychiatric care in January 1977. He was diagnosed as having borderline to mild mental retardation and a differential diagnosis of simple schizophrenia, although his apparent ability to relate with others and the lack of affectual disturbance did not quite seem in keeping with this. In February 1977, he was diagnosed with schizoid personality with neurotic problems related to his poor or incomplete sexual development. At the time of his entry into service, the Veteran denied having or having had depression and nervous trouble on a Report of Medical History. An examination in June 1977 noted that psychiatric status was normal. The Veteran was discharged from service in September 1977. The character of his service was deemed to honorable. No service records regarding his discharge are contained within the claims file; however, the subsequent post-service treatment records noted that the Veteran had reported being seen by a psychiatrist during service prior to his discharge due to the concerns of his commanding officer. In an April 2004 disability evaluation, a diagnosis of personality disorder with paranoid and antisocial features was suggested. A June 1994 disability determination found that the Veteran had an Axis II diagnosis of borderline personality disorder. On mental status examination, there was no evidence of a psychosis, hallucinations or delusions. In a July 1994 Social Security Administration determination, the Veteran was found to be disabled due to a primary diagnosis of substance addiction disorder (drug) and a secondary diagnosis of personality disorders. In July 1998, the Veteran was diagnosed with anxiety. At an April 2004 examination for disability benefits, the Veteran reported having no history or treatment for emotional or psychiatric problems. He was diagnosed with personality disorder with paranoid and antisocial features. A November 2004 emergency room record showed a history of posttraumatic stress disorder (PTSD), but did not provide a basis for this diagnosis. In an August 2006 VA mental health treatment note, the Veteran reported having had "emotional problems" since prior to entry into military service. He reported beginning therapy at the age of 16. He also recounted a traumatic in-service incident where his sergeant threatened to kill him. The psychiatrist declined to offer a diagnosis of PTSD and stated that the Veteran had a longstanding history of significant cognitive impairment and evidence of likely superimposed thought disorder. The etiology of this disorder was not clear, and additional testing and examination were necessary. The Veteran was seen by a primary care physician in October 2007. He reported that the Veteran was adversely affected by the military's failure to allow him to attend his great-grandfather's funeral during service. At a December 2007 consultation, a psychiatrist diagnosed the Veteran with a thought disorder - psychotic disorder, NOS, and mixed personality disorder with paranoid and schizoid features. The psychiatrist opined that the Veteran's "psychotic disorder and severe schizoid/paranoid personality disorder symptoms were exacerbated by his military service (intolerance of being in close proximity to others, intolerance of 'noises' when he was around other people) coupled by the stress of his grandfather's death." The Veteran underwent a VA examination in May 2011 when he reported having difficulties adjusting to military life during service. The examiner noted that he was considered to have had psychiatric issues that impaired his ability to function adequately in the military. The Veteran also stated that, when his great-grandfather died during service, he was not permitted to attend the funeral. This, he reported, caused him significant emotional distress. Regarding his background, the Veteran stated that he was often a victim of childhood neglect and was physically abused by his step-father. The examiner also noted that the Veteran dropped out of school at age 16 and had a longstanding history of academic difficulties. He was also tested for intellectual functioning and showed an intelligence quotient of 84, which is indicative of borderline intellectual functioning. A clinical presentation showed that the Veteran presented as an individual with a longstanding history of pervasive and severe interpersonal difficulties consistent with a diagnosis of personality disorder. The examiner diagnosed the Veteran with a psychotic disorder, NOS; mild mental retardation, by history; and a personality disorder, NOS. She opined that his psychiatric difficulties began prior to his military service and that it was plausible, though less likely than not, that his psychiatric condition worsened somewhat as a result of his great-grandfather's death. However, there was no evidence that the onset of any psychiatric condition began during the Veteran's military service. The examiner further opined that "most likely, this Veteran's psychiatric functioning, symptomatology, and course of mental illness were primarily influenced by long-standing, psychiatric difficulties, including but not limited to interpersonal disturbance, paranoia/suspiciousness, and limited intellectual functioning that [were] independent of his military service." A VHA medical opinion was obtained in November 2012. The examiner opined that, based on the evidence of record, the Veteran's psychiatric diagnoses prior to entering service were as follows: "Axis I: MJ abuse, alcohol dependence vs. abuse, hallucinogen abuse. Axis II: borderline mental retardation, rule out expressive language disorder, paranoid personality disorder, antisocial personality traits." Specifically, the VHA reviewer stated that none of the mental health examiners had diagnosed the Veteran with any pre-existing mood, anxiety or psychotic disorder. Additionally, the records did not show any evidence of the Veteran losing touch with reality to satisfy the criteria for a psychotic disorder, before or after entering service. The VHA reviewer added that mental retardation could be associated with co-morbid psychiatric diagnoses on Axis I and that three months of basic training would not cause a change in the severity of mental retardation. Similarly, a paranoid personality disorder was noted to be a pervasive and very fixed pattern of thinking and behavior. The examiner found that three months of basic training would not cause any change in the manifestations and ramifications of the disorder. With regard to the Veteran's current psychiatric diagnosis, the examiner found the following: "Axis I: MJ abuse by hx, alcohol abuse vs. dependence in full sustained remission, hallucinogen abuse by hx. Axis II: borderline mental retardation, rule out expressive language disorder, paranoid personality disorder, antisocial personality traits." The VA examiner found that it was significant that none of the psychiatric examiners had ever diagnosed the Veteran with any psychiatric illness on Axis I, except substance abuse. His diagnosis of anxiety was noted to have rendered by his primary care physician, and the examiner found that it was not supported by the record. The examiner concluded that "based on the records and available medical evidence, the Veteran's psychological issues upon joining the service and since discharge were not as least as likely as not (less than 50 percent) related to his three month stay in basic training. This Veteran's current claims of disability were not supported by any records, to be service connected." Analysis The Veteran's service entrance examination showed a normal psychiatric evaluation. However, there is clear and convincing evidence, including the Veteran's own statements, that he had emotional problems prior to entering service. In addition, there is no clear showing that the Veteran had an innocently acquired psychiatric disorder prior his entering service. To the extent that a January 1977 treatment record noted a differential diagnosis of schizophrenia prior to service, he was subsequently diagnosed with a schizoid personality with neurotic problems related to his poor or incomplete sexual development in February1977. The February 1977 records did not show a diagnosis of a psychotic disorder. Schizoid personality disorder and mental retardation were the only diagnoses entered prior to service. Thus, on this record, an innocently acquired psychiatric disorder cannot be found to have been present prior to service. Moreover, the evidence does not show a diagnosis of an innocently acquired psychiatric disorder, to include that of a psychosis within one year of his discharge from service or for many years thereafter. Significantly, when thoroughly evaluated in 1994 for disability benefits, the diagnosis was that of borderline personality. As to a current diagnosis, the evidence shows a July 1998 diagnosis of anxiety by the Veteran's primary care physician and a diagnosis of a psychotic disorder, NOS in December 2007 and on VA examination in 2011. However, on consideration of the entire record, the September 2012 VHA reviewer found that, prior to service, the Veteran did not have a current Axis I diagnosis referable to an innocently acquired psychiatric disorder, to include a psychosis. Rather the VHA reviewer diagnosed the Veteran with substance abuse on Axis I and borderline mental retardation and personality disorder on Axis II. In support of these diagnoses, the VHA review observed that none of the other psychiatric examiners had ever diagnosed the Veteran with any pre-existing mood, anxiety or psychotic disorder and the records did not show evidence of the Veteran losing touch with reality to satisfy the criteria for a psychotic disorder before or after entering service. The diagnosis of anxiety was noted to have been made by a primary care physician and an ENT, but the Veteran was never referred to a mental health professional for management of anxiety. Although the VHA reviewer acknowledged the diagnoses of psychosis in the claims file, the reviewer did not give a diagnosis of PTSD, another anxiety disorder or a mood disorder and instead found that the evidence did not support such a diagnosis and that personality disorder was the appropriate diagnosis. Additionally, to the extent that the May 2011 VA examiner diagnosed the Veteran with a psychosis, the Board notes that the examiner also clearly opined that there was no evidence that his psychosis began in service and that it was unlikely that the Veteran's psychiatric disorder worsened as a result of his great-grandfather's death and his inability to attend his funeral. Instead, the VA examiner found that the Veteran's psychiatric functioning was primarily influenced by long-standing psychiatric difficulties including, but not limited to, interpersonal disturbance, paranoia/suspiciousness, and limited intellectual functioning that were independent of his military service. To the extent that a pre-existing psychotic disorder and personality disorder have been deemed to have been exacerbated by service, this opinion entered in 2007 is found to be based on an inaccurate factual basis. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). There is probative evidence in the record to show that the Veteran did have a diagnosis of a psychotic disorder or other chronic disorder before or during service or at the time of examinations performed in 1994. Accordingly, on this record, the Board finds that the Veteran does not have an innocently acquired psychiatric disorder that was incurred in or aggravated by his period of service. The Board has also considered the Veteran's lay statements that his psychiatric condition is due to his period of service. An analysis of lay evidence requires consideration of both the credibility and the competency of the lay witness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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")); see also 38 C.F.R. § 3.159(a)(2). The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In ascertaining the competency and probative value of lay evidence, recent decisions of the United States Court of Appeals for Veterans Claims (Court) have underscored the importance of determining whether a layperson is competent to identify the medical condition in question. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not found to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). Moreover, the Board must consider the weight of the lay statement, particularly if such statement is a mere conclusory generalized lay statement. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In assessing the competency and weight of lay statements, evidence of a prolonged period without medical complaint after service can be considered along with other factors. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the Veteran has not been shown to possess any training, expertise, or credentials in the field of medicine. Although he is competent to provide evidence as to his symptoms, the opinions of the medical professionals, specifically the VHA examiner, are more probative as to a diagnosis and the etiology of any such diagnoses. Moreover, the Veteran is not shown to have presented credible lay assertions that are sufficient to establish a continuity of symptomatology referable to a chronic psychiatric disorder since service. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an innocently acquired psychiatric disorder is denied. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs