Citation Nr: 1315547 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-39 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to August 1972, at which time he was administratively discharged for unsuitability. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. In March 2010, a Travel Board hearing was held at the RO before a Veterans Law Judge (VLJ). The hearing transcript has been associated with the record. The VLJ who conducted the March 2010 hearing is no longer employed by the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. To that end, the Veteran was provided the opportunity to request a hearing before another VLJ. As no response was received within 30 days of that letter, the Board will proceed with adjudication of the issue on appeal. In January 2012, the Board remanded the Veteran's claim for further development. That development having been completed, the issue is properly before the Board for adjudication. FINDINGS OF FACT 1. An acquired psychiatric disorder clearly and unmistakably preexisted the Veteran's period of active service. 2. There is clear and unmistakable evidence that an acquired psychiatric disorder was not aggravated by, or during, the Veteran's period of active service. 3. The most competent, credible, and probative evidence of record weighs against a finding that the Veteran currently has an acquired psychiatric disorder that was incurred or aggravated by active military service, to include as superimposed upon a pre-existing personality disorder. 4. The Veteran's personality disorder is not a disease or injury for VA compensation purposes. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including 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 claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified in October 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in February 2009. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. As for the duty to assist, the Veteran's service treatment records have been obtained. In accordance with the January 2012 Board remand, additional service and personnel records have been associated with the claims file, to include the Veteran's mental health files. As such, pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, as directed by the Board in January 2012, a VA psychiatric examination was provided in October 2012 so as to ascertain whether the Veteran suffered from a current psychiatric disorder which was etiologically-related to his period of service. To that end, when VA undertakes to provide an examination or opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination report is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issue at hand. The Veteran's complaints and lay history were also considered and discussed, to include his account of an in-service accident in 1966, as was prior medical evidence of record. A complex rationale was provided with the opinion. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion concerning the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service connection The Veteran claims that his currently-diagnosed psychiatric disorders, to include intermittent explosive disorder and personality disorder, not otherwise specified, with schizoid and paranoid traits, were either caused or aggravated by his period of active service. To that end, the Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that personality disorders are not considered to be diseases or injuries within the meaning of veterans' benefits legislation and, therefore, are not eligible for service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997) (specifically holding that 38 C.F.R. § 3.303(c), as it pertains to personality disorders, is a valid exercise of the authority granted to the Secretary of Veterans Affairs); see also Beno v. Principi, 3 Vet. App. 439, 441 (1992). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disability was incurred in service and was superimposed upon a pre-existing personality disorder. It is also important to note that 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 (West 2002). A preexisting disease will be considered to have been aggravated by active 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 progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). With regard to the Veteran's statements and hearing testimony, the Board must determine whether the claimed disorder is the type of injury or disease for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record, including evidence such as any in-service record documenting the injury or disease. At the outset, the Board notes that the evidence of record does contain diagnoses of multiple psychiatric disorders. See VA examination report, October 2012. Thus, element (1) of Hickson has been satisfied, as a current diagnosis is of record. A review of the Veteran's service medical treatment records and DD Form 214 reveals that he was administratively discharged for unsuitability. Discharge was recommended by an Air Force psychiatrist in April 1972, who had diagnosed the Veteran with an acute anxiety reaction in an emotionally unstable personality with explosive features. The Veteran's March 1970 entrance examination was silent as to any psychiatric disorder or symptomatology. However, following a series of in-service incidents in April and July 1972, which resulted in psychiatric evaluation, discharge was recommended. These included involvement in an auto accident, wherein the Veteran was found to be in an abnormal state, and admittance to the base hospital with self-inflicted wounds to the wrist. The Veteran's separation examination noted "depression or excessive worry," "loss of memory or amnesia," and "nervous trouble" in May 1972. Post-service, although the Veteran was afforded a VA examination by a psychologist in January 2009, a review of the associated report reveals details not only about the Veteran, but also about another individual. As noted by the Board in January 2012, these details go beyond the age and race, as were addressed in the August 2009 addendum to the January 2009 examination report. Coupled with the fact that the examiner did not provide an opinion with regard to whether an acquired psychiatric disorder preexisted his period of active service, the Board found that this opinion was insufficient upon which to base a decision. The appeal was remanded so as to obtain an updated VA examination. In a March 2010 Board hearing, the Veteran testified that he tried to commit suicide during his period of active duty. See Transcript, p. 4. While the Veteran's representative conceded the Veteran carried an underlying mental condition upon entrance into service, it was argued that the acute reactions suffered during the Veteran's military service aggravated his underlying mental status, resulting in severe symptoms which were superimposed upon his personality disorder. The Veteran went on to testify that he had no friends, that he had trouble at work, and that he still suffered from frequent explosive episodes. See Transcript, p. 5. An additional VA examination was provided in October 2012. At that time, the examiner diagnosed the Veteran with intermittent explosive disorder and personality disorder, not otherwise specified, with schizoid and paranoid traits. Following a review of the claims file, the examiner pointed out that the Veteran was diagnosed with acute anxiety reaction during his period of military service. The examiner referenced the April 1972 statement, alluded to above, in which the Veteran described mounting pressure in the military, as well as harassment. The Veteran was hospitalized in 1972 for a self-inflicted, superficial laceration to the left arm, and he reported a history of "difficulty handling his temper" prior to entrance into service. Further review indicated that the Veteran's enlistment examination did not reveal any preexisting mental health conditions. During the interview, the Veteran stated that he did not receive mental health treatment as a boy, and he denied significant periods of depression. He did, however, recall being mad and angry about his family situation, which he described in detail, and was a source of great stress. He denied thoughts of suicide or self harm, did not engage in fire setting or animal cruelty, and there were no psychiatric medications or hospitalizations. He reported a family history of mental illness on his mother's side. Prior to his entrance into the military, the Veteran reported getting into fights in school, which he always won either physically, or with some form of retaliation. Following the evaluation, the examiner stated that the Veteran's early childhood and pre-military experiences contributed to the onset and development of his personality disorder and secondary intermittent explosive disorder. As such, it was less likely than not that the Veteran's current diagnoses were a result of, or were aggravated by, his period of active service. The examiner also determined that these diagnoses were clearly and unmistakably apparent prior to service entrance, and that there was clear and unmistakable evidence that service enlistment did not result in aggravation of these preexisting conditions. Instead of in-service aggravation, the examiner opined that discharge from service effectively resolved the ongoing dilemmas for which he inappropriately reacted while in service. In support of that opinion, the examiner noted that the Veteran's in-service diagnosis, acute anxiety reaction in an emotionally-unstable personality, with explosive features, characterized by impulsivity, inability to tolerate frustration and emotional lability with multiple physical symptoms under stress, was provided based on earlier diagnostic standards. The Veteran's current diagnoses are a reflection of the changing diagnostic criteria of the DSM-IV. Despite the name changes, his current diagnoses remain consistent with his in-service diagnosis for which he was discharged in 1972. Specifically, acute anxiety reaction is commensurate with intermittent explosive disorder. Emotionally unstable personality disorder with explosive features is commensurate with personality disorder, not otherwise specified, with paranoid and schizoid features. In 1972, it was determined that the Veteran's maladaptive and pervasive personality features prevented him from successfully adapting to military life. The examiner pointed out that the Veteran's experience in the military was his first adult situation, during which he experienced an explosive outburst. The Veteran's impulsive actions during active duty, then, are reflective of the intermittent explosive disorder, which is characterized by a discrete episode of failure to resist aggressive impulses that result in serious assaultive acts and/or destruction of property. Per the examiner, this outburst was considered a coping reaction of managing the unstable personality characteristics that developed prior to service entrance. Finally, the examiner found that, since the Veteran's discharge from service, there had been numerous experiences that continued to reflect his unstable personality temperament and secondary explosive behavioral outbursts. The examiner noted that these would have happened regardless of his military experience, based upon his coping reactions learned during early childhood. That is, the Veteran demonstrated a propensity to "bottle up" his emotion until he reaches a point of explosion, at which time his reaction is disproportionate to the situation, prior to his enlistment into active military service. Turning to the analysis, and as noted above, the presumption of soundness attaches only where there has been an induction medical 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). Here, the Veteran's March 1970 enlistment examination indicates that his psychiatric makeup was normal upon entrance, with no such defects noted by the examiner. The Veteran also denied psychiatric symptomatology. As such, the presumption of soundness attaches in this case, and it must be determined whether the Veteran's claimed psychiatric disorders clearly and unmistakably preexisted service and, if so, whether they were clearly and unmistakably aggravated thereby. Here, the October 2012 VA examiner found that clear and unmistakable evidence existed to demonstrate that the Veteran's personality disorder, as well as a superimposed explosive disorder, clearly and unmistakably existed prior to service. The examiner provided great detail as to the Veteran's pre-military experiences, and pointed out specific behavioral incidents which signaled these disorders well before service entrance. The Board finds that there is clear and unmistakable evidence that the acquired psychiatric disorder, which is secondary to or superimposed upon the personality disorder, pre-existed service. (His personality disorder is not subject to service connection based upon pertinent regulation.) Therefore, the first criterion to rebut the presumption of soundness has been met in this case. As to the second, the Board also finds clear and unmistakable evidence exists to show that the Veteran's acquired psychiatric diagnosis was not aggravated in service. Specifically, the October 2012 examiner found that the Veteran's in-service diagnoses remained consistent with his pre-enlistment behavior. Although psychiatric diagnoses may have been provided for the first time, the examiner pointed out that the Veteran's impulsive actions during active duty were reflective of his intermittent explosive disorder, and considered a coping reaction of managing the unstable personality characteristics that developed prior to service entrance. Further, the examiner noted numerous experiences that continued to reflect the Veteran's unstable personality temperament and secondary explosive behavioral outbursts following separation. Due to the Veteran's predisposition, the examiner opined that these types of reactions would have occurred regardless of his military experience, based upon his coping reactions learned during early childhood. Therefore, because there is clear and unmistakable evidence that the Veteran's preexisting acquired psychiatric disorder was not aggravated by, or during, his period of active duty, the Board concludes that the presumption of soundness has been rebutted in this case. See 38 U.S.C.A. § 1111. As to the lay evidence of record, to include the Veteran's hearing testimony, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, 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). This would include weighing the absence of contemporary medical evidence against lay statements. Acknowledgement is given to the Veteran's assertions that his acquired psychiatric disorder began during service, or was aggravated therein. In that regard, he is deemed competent to report symptoms such as feelings of anger. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. However, the Veteran has not shown competence to provide an opinion as to the onset or cause of a complex psychiatric diagnosis, as this is not a disorder which is simple to identify, especially given its psychiatric nature. See Jandreau. In sum, the evidence demonstrates that the Veteran's currently-diagnosed acquired psychiatric disorder was not incurred in or permanently aggravated by his period of active service. Although his psychiatric conditions were first noted in service, the comprehensive and detailed October 2012 opinion indicates that each existed upon entry into service, as demonstrated by the interview with the Veteran, as well as his in-service statements which indicated a history of "difficulty handling his temper" prior to entrance into service. Finally, there is no probative medical evidence to show that the Veteran's acquired psychiatric disorder progressed beyond its natural progress as a result of active duty, or that any superimposed psychiatric disorder began during or as a result of service. Although the examiner found that an explosive disorder was secondary to a personality disorder, it was made clear that both disorders existed prior to enlistment. Again, the Board point out that a personality disorder is not a disease or injury for VA compensation purposes. While the Board recognizes the Veteran's sincere belief in the merits of his claim, the preponderance of the evidence is against a finding of service connection in this instance. In reaching this conclusion, the Board acknowledges that the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application in this case. See Gilbert. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs