Citation Nr: 1322508 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 11-22 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for paranoid schizophrenia, to include secondary alcohol and drug abuse. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1981 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In October 2011, the Veteran presented testimony relevant to the appeal at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The Board recognizes that the Veteran, in May 2010, filed a service connection claim for "depression." The U.S. Court of Appeals for Veterans Claims (Court) held, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. In this case, the Veteran specifically stated that he was treated for the claimed disability of "depression" in 1981 and that such treatment was reflected in the service treatment records. See the May 2010 VA Form 21-526. He later wrote, on the February 2011 notice of disagreement, that the claimed mental disability did not exist prior to service, and he was treated for the disability in Fort Riley, Kansas. At the October 2011 Board hearing, the Veteran acknowledged that he had been diagnosed with paranoid schizophrenia during service. He also reported that he began to experience symptoms of depression during service but did not indicate that he had ever been diagnosed with a depressive disorder by a competent mental health professional. The Veteran has not presented evidence of any diagnosed psychiatric disability other than paranoid schizophrenia and a history of drug and alcohol abuse as secondary to the diagnosis of paranoid schizophrenia. See October 2011 Board hearing transcript, page 5. The VA treatment records include an Axis I diagnosis of rule out posttraumatic stress disorder but no conclusive diagnosis was ever made. After consideration of the foregoing, the Board finds that the scope of the Veteran's mental health disability claim is limited to service connection for paranoid schizophrenia, to include secondary alcohol and drug abuse. The symptom of depression is encompassed in the claim but is not a separate diagnosis requiring consideration. Therefore, in the interest of efficiency, the Board has recharacterized the issue as entitlement to service connection for paranoid schizophrenia, to include secondary alcohol and drug abuse, as reflected on the first page of this decision. FINDINGS OF FACT 1. A psychiatric disability was not noted at service entrance, and the Veteran is presumed mentally sound at service entrance. 2. Paranoid schizophrenia clearly and unmistakably existed prior to service. 3. Paranoid schizophrenia was not clearly and unmistakably not aggravated during service. 4. During active service, the Veteran was diagnosed with chronic and severe schizophrenic disorder, paranoid type, manifested by persecutory delusions, blocking, autistic preoccupation, and thought insertion. 4. Chronic symptoms of paranoid schizophrenia, to include a psychosis, manifested during service. 5. Symptoms of paranoid schizophrenia, including hallucinations, have been continuous since service. 6. The Veteran has self-treated symptoms of paranoid schizophrenia through alcohol and drug abuse. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, paranoid schizophrenia, to include a psychosis, was incurred in active service. 38 U.S.C.A. §§ 1111, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 4.125 (2012). 2. Resolving reasonable doubt in the Veteran's favor, drug and alcohol abuse is proximately due to paranoid schizophrenia. 38 U.S.C.A. §§ 105, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The claim of service connection for paranoid schizophrenia, to include alcohol and drug abuse, has been considered with respect to VA's duties to notify and assist. 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, 3.326(a) (2012). Given the favorable outcome of the appeal, which is a full grant of benefits sought, the Veteran's claim has been substantiated, obviating the need for further discussion of how VA fulfilled the duties to notify and assist in this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran is not shown to have been diagnosed with any other psychiatric disorder. Service Connection Legal Criteria The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with paranoid schizophrenia and has manifested persecutory delusions related to the diagnosis. Psychosis is defined as a mental disorder characterized by gross impairment in reality testing as evidenced by delusions, hallucinations, markedly incoherent speech, or disorganized and agitated behavior without apparent awareness on the part of the patient of the incomprehensibility of the behavior. See Dorland's Illustrated Medical Dictionary 1383-84 (28th ed. 1994). In light of the Veteran's persecutory delusions and hallucinations, the Board finds that there is evidence of psychosis included in the record. Schizophrenia is a psychotic disorder. The characteristic symptoms are two or more of the following: delusions, hallucinations, disorganized speech, grossly disorganized or catatonic behavior, negative symptoms. Paranoid type schizophrenia is diagnosed based criteria of preoccupation with one or more delusions or frequent auditory hallucinations but none of the following is prominent: disorganized speech, disorganized or catatonic behavior, or flat or inappropriate affect. See Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). A psychosis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable in this case. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as a psychosis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. If the government meets this burden, the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted, and the veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, a veteran's claim is one for direct service connection. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). In determining whether a condition preexisted service, a veteran's medical history, accepted medical principles, evidence regarding the basic character, origin, and development of the condition, and lay and medical evidence concerning the inception, development, and manifestations of the condition must be considered. 38 C.F.R. § 3.304(b); see Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Service Connection Analysis Upon review of the record, the Board notes that the Veteran was psychiatrically evaluated as normal at the August 1980 service enlistment examination. Therefore, a pre-existing psychiatric disability was not noted upon entrance to active service, and the presumption of soundness applies to the Veteran's claimed psychiatric condition in this case. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. In this case, the service medical evidence shows that, in October 1981 (i.e., during service), the Veteran was hospitalized for psychiatric observation with a final diagnosis of chronic and severe schizophrenic disorder, paranoid type manifested by persecutory delusions, blocking, autistic preoccupation and thought insertion. It was further noted that the Veteran had a marked degree of impairment for further military duty. During the Veteran's hospital admission, he indicated he had previously been hospitalized at Denver General Hospital for a short period of time in 1978, prior to joining the military. The Veteran was discharged from the hospital on October 29, 1981 with the recommendation that he be medically discharged from the Army because of chronic illness and continued to receive medications and supportive psychotherapy. The treating medical provider further noted that the Veteran had been treated and his condition had improved; however, it was believed that the Veteran had reached maximum hospital benefit. Although the Veteran had initially refused to provide any specifics about the pre-service psychiatric hospitalization, on October 30, 1981, he signed a release form and the records pertaining to the Veteran's prior hospitalization were obtained. The records are included with the Veteran's service treatment records and show that, in April 1978, the Veteran was brought into the emergency room at Denver Health Hospital on a mental health hold evaluation after exhibiting bizarre behavior in a car dealership showroom. According to the private hospitalization records, the Veteran climbed a car in the car dealership showroom and began talking irrationally about devils and religious material. The noted diagnostic impression was paranoid schizophrenia. In November 1981, the Medical Board by unanimous decision determined that the Veteran, who was present for the proceedings and did not present any views on his behalf, was medically unfit for further military service due to Axis I diagnosis of "schizophrenia, paranoid type, chronic severe; manifested by persecutory delusions, blocking, autistic preoccupation and thought insertion; degree of impairment for further military duty, marked." The Medical Board further determined that the condition existed prior to service and was not aggravated by active duty. In a November 1981 statement signed by the Veteran, he noted that he disagreed with the Medical Board finding and requested that his case be returned for correction. Specifically, the Veteran noted that he demonstrated a low white blood cell count and a heart murmur at the medical examination performed in Fort Riley, Kansas and felt that he should be entitled to some kind of disability benefits although his "other problem" existed before he entered service. The Physical Evaluation Board convened in January 1982 and determined that the Veteran had chronic paranoid schizophrenia, which existed prior to service and was not service-aggravated. The Physical Evaluation Board found the Veteran to be unfit for service and recommended that he be separated from service without entitlement to disability benefits. The Veteran was separated from active service in February 1982 by reason of physical disability without severance pay. In May 2013, a VA medical expert opinion (i.e., a VHA medical opinion) was obtained from a VA psychiatrist based on review of the record. The reviewing VA psychiatrist considered the diagnosis of paranoid schizophrenia, which was made during the Veteran's pre-service hospitalization and is reflected in an emergency room note and mental health note, but noted that the major document that would provide the most information regarding the Veteran's initial psychotic episode prior to service and subsequent medical course was not present (i.e., a hospital discharge summary). The VA psychiatrist stated that, given that the only diagnosis that existed for the pre-service episode is paranoid schizophrenia and not drug-induced psychosis (which would be in a differential diagnosis in the assessment process), he believed that with the data provided, and accepting that the in-patient documents would also reflect a schizophrenic diagnosis, there was sufficient cause to state with reasonable confidence that the paranoid schizophrenia clearly and unmistakably existed prior to service. The VA reviewing psychiatrist provided adequate rationale to support the medical opinion, and it is the only adequate medical opinion of record; therefore, it is of great probative value. In consideration of the foregoing, the Board finds that there is clear and unmistakable evidence of pre-existing paranoid schizophrenia of record. This is undeniably established by the April 1978 hospitalization records showing a diagnosis of severe paranoid schizophrenia, the November 1981 finding of the Medical Board and the January 1982 finding of the Physical Evaluation Board that the Veteran's paranoid schizophrenia existed prior to service, the Veteran's November 1981 statement alluding to the existence of paranoid schizophrenia prior to service, and the medical opinion by the May 2013 VA medical reviewer finding the psychiatric disorder clearly and unmistakably existed prior to service. The record does not, however, establish by the high evidentiary standard of "clear and unmistakable evidence" that the Veteran's pre-existing paranoid schizophrenia was not aggravated by service. On the November 1981 Medical Board Proceedings Report, there was an "x" indicating that the Veteran's pre-existing psychiatric condition was not aggravated by active duty. The January 1982 Physical Evaluation Proceedings Board similarly found that the Veteran's chronic paranoid schizophrenia existed prior to service and was not service-aggravated. However, in Horn v. Shinseki, 25 Vet. App. 231 (2012), the Court held that a medical board evaluation form that contained only an "x" indicating that a medical condition had not been aggravated by active duty cannot constitute clear and unmistakable evidence of a lack of aggravation. The Court held that such a report provides no means of determining whether the medical board found that there was no increase in disability or found that any increase was due to the natural progress of the disease. Because the in-service findings of the Medical Board and Physical Evaluation Board do not adequately explain the means for determining that there was no aggravation during service, they are not sufficient to show by clear and unmistakable evidence that the Veteran's paranoid schizophrenia was not aggravated by active service. Additionally, the medical opinion evidence obtained in connection with the appeal does not show that the worsened symptoms during service of pre-existing paranoid schizophrenia clearly and unmistakably represented a natural progression of the mental illness. The May 2013 VA reviewing psychiatrist wrote, in a June 2013 addendum, that he could not answer that question with that level of surety. He wrote that, while the illness likely would worsen over time naturally, the specific rate and subsequent course of decline in the military service period could also be related, if in a smaller part, to the day to day stresses of active military service. The May 2013 VA reviewing psychiatrist then wrote that the greatest level of certainty would be expressed as more likely than not that the decline was of natural course. The May 2013 VA reviewing psychiatrist's medical opinion is of great probative value. Thus, in light of the above-mentioned case law holding that a medical board evaluation form that contained only an "x" indicating that a medical condition had not been aggravated by active duty cannot constitute clear and unmistakable evidence of a lack of aggravation, and the June 2013 addendum opinion from the VA reviewing psychiatrist stating that he could not state with surety that the worsening of preexisting paranoid schizophrenia during service clearly and unmistakably represented a natural progression of the mental illness, the Board finds that the high evidentiary standard of clear and unmistakable evidence has not been met to establish that the pre-existing paranoid schizophrenia was not aggravated by service. Therefore, the presumption of soundness has not been rebutted, and the Board will now consider the Veteran's claim as one for direct service connection as if there was no evidence of paranoid schizophrenia prior to service. Wagner at 1097. After a review of all the evidence, both lay and medical, the Board finds that the evidence demonstrates that symptoms of chronic paranoid schizophrenia, which include a psychosis, manifested during service. As stated above, the Veteran was clinically evaluated as psychiatrically normal at service entrance. During service, in October 1981, the Veteran was hospitalized for chronic and severe schizophrenic disorder, paranoid type, manifested by persecutory delusions, blocking, autistic preoccupation and thought insertion. The Veteran was found medically unfit for further military duty and was separated from service as a result of the psychiatric disability. The March 2013 VA medical opinion, which includes the medical opinion that the Veteran's paranoid schizophrenia was less likely than not proximately due to or aggravated by active military service, is not adequate because it was provided by a podiatrist (rather than a psychiatrist or psychologist) and was based, in part, on finding that the Veteran's paranoid schizophrenia pre-existed service. Because the presumption of soundness is not rebutted in this case, the Board must evaluate the appeal as if the Veteran did not suffer from paranoid schizophrenia prior to service, as stated above. Chronic symptoms of the Veteran's paranoid schizophrenia, to include a psychosis, manifested during active service. Additionally, in January 2011, the Veteran told a treating VA mental health care provider that he has had auditory hallucinations that come and go for years, poor sleep with nightmares soon after leaving the military, and currently experiences paranoid thinking focusing on strangers on the bus. In consideration of the chronic symptoms of paranoid schizophrenia that manifested during active service, to include a psychosis, and the continued symptoms of paranoid schizophrenia that have manifested since service, resolving reasonable doubt in the Veteran's favor, the Board finds that direct service connection for paranoid schizophrenia is warranted. 38 C.F.R. § 3.303(b). The Veteran has presented evidence of a history of alcohol and drug abuse and treatment related thereto. Pursuant to 38 U.S.C.A. §§ 105 and 1131, "no compensation shall be paid if the disability is the result of the person's own willful misconduct or abuse of alcohol or drugs." Willful misconduct is defined as "an act involving conscious wrongdoing or known prohibited action." It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. See 38 C.F.R. § 3.1(n). Alcohol use is considered willful misconduct where one deliberately drinks a beverage to enjoy its intoxicating effects, and intoxication results proximately and immediately in disability or death. See 38 C.F.R. § 3.301(c)(2) (2012). Similarly, the progressive and frequent use of drugs to the point of addiction is considered willful misconduct. Where drugs are used to experience their effects, and the effects result proximately and immediately in disability, the disability is considered the result of willful misconduct. See 38 C.F.R. § 3.301(c)(3). Yet, diseases or disabilities that are a secondary result of chronic alcohol or drug use are not considered to be of willful misconduct origin. See 38 C.F.R. § 3.301(c)(2), (c)(3). In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), overruling Barela v. West, 11 Vet. App. 280 (1998), the Federal Circuit Court held that veterans can only recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability. This case primarily concerns situations where the veteran has a service-connected psychiatric disorder and is attempting to receive additional compensation, etc., for his alcohol and/or drug abuse on the premise that it is proximately due to or the result of his service-connected psychiatric disability. The converse of this, however, is not sustainable where he has abused alcohol and/or drugs and wants compensation for it as the primary condition as opposed to the secondary residual. In this case, the Veteran testified before the undersigned that he has self-treated psychiatric symptoms associated with paranoid schizophrenia over the years by abusing alcohol and drugs. See October 2011 Board hearing transcript, page 5. Although there is no medical opinion evidence of record linking the Veteran's alcohol and drug dependence to the diagnosis of paranoid schizophrenia, the Veteran is competent to report that he self-treated his psychiatric symptoms with alcohol and/or drugs, and there is no evidence in the record to show that the account is not credible. For these reasons, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's alcohol and drug dependence was proximately due to (secondary to) the service-connected paranoid schizophrenia. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.310. ORDER Service connection for paranoid schizophrenia, to include secondary alcohol and drug abuse, is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs