Citation Nr: 1322863	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  09-46 679	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and manic depressive disorder.


ATTORNEY FOR THE BOARD

S. M. Kreitlow


INTRODUCTION

The Veteran had active service from March 19, 1984 to April 27, 1984.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The Cleveland RO assumed jurisdiction as part of the Tiger Team program; following initial adjudication of the claim, jurisdiction transferred back to the RO in Anchorage, Alaska, which has original jurisdiction based upon the Veteran's address.

The Veteran indicated on his November 2009 VA Form 9 that he wished to testify at a Board hearing.  A Travel Board hearing was scheduled for June 2010 and the Veteran was provided notice of this hearing in May 2010.  However, the Veteran failed to report to the scheduled hearing and failed to explain his absence.  Therefore, the Board hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(d) (2010).

Throughout the course of this appeal, the issue on appeal has been characterized as involving the submission of "new and material evidence."  The Veteran's claim was originally denied in August 1999; however, during the course of the most recent appeal, the RO obtained service treatment records which were not associated with the claims file at the time of the August 1999 decision.  Pursuant to 38 C.F.R. § 3.156(c)(i) (2010), in situations such as this, the claim will be readjudicated without the requirement of the submission of new and material evidence.  As such, the issue has been recharacterized as noted on the title page.  

In April 2011, the Board remanded this case for further evidentiary development.  In May 2012, the Board found that the April 2011 remand had not been complied with and remanded the Veteran's claim again for compliance with the requested development.  At this time, the Board finds that the prior remands have been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).   


FINDINGS OF FACT

1.  The Veteran has been diagnosed with a depressive disorder (major depressive disorder; depressive disorder not otherwise specified), a psychotic disorder (schizophrenia; schizoaffective disorder; psychotic disorder not otherwise specified), polysubstance dependence (alcohol and cannabis) and personality disorder (schizoid personality disorder, personality disorder not otherwise specified).

2.  There is clear and unmistakable evidence that the Veteran's current depressive disorder pre-existed his entry into service and was not aggravated during service.

3.  The Veteran's current psychotic disorder is not related to his active military service.

4.  The Veteran's polysubstance dependence is due to willful misconduct and is, therefore, not subject to service connection for VA compensation purposes.

5.  The Veteran's personality disorder is not a disability for VA compensation purposes.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.301, 3.159, 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Notice and Assistance Requirements

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Appropriate notice was provided to the Veteran in April 2007, April 2011 and June 2012.  The claim was subsequently readjudicated, most recently in a May 2013 supplemental statement of the case.  Mayfield, 444 F.3d at 1333.

The duty to assist has also been satisfied.  All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained.  VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim.  The veteran was afforded VA examination on his claim in April 2013.  The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate physical examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board, therefore, concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal.  See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Veteran has not contended otherwise.  

Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case.  Additional efforts to assist or notify him would serve no useful purpose.  Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. 

II.  Analysis

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  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.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).   

Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a).  Psychoses are enumerated chronic diseases for which presumptive service connection may be warranted if manifested to a compensable degree within one year of discharge from service.  38 C.F.R. § 3.309(a).  The Board notes that the definition of "psychoses" in 38 C.F.R. § 3.384 includes psychotic disorder not otherwise specified, schizophrenia and schizoaffective disorder.

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits.  

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.   38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify.").

Initially, the evidence must show that the Veteran has a current disability for which service connection may be granted.  In the present case, the first medical evidence that the Veteran sought mental health treatment is a January 1990 psychological evaluation conducted in conjunction with the Veteran wanting to rejoin the Navy.  Although the report of this evaluation shows the Veteran's tendencies or personality traits, it does not provide a diagnosis of any acquired psychiatric disorder.  In fact, the earliest evidence of a diagnosis of a psychiatric disorder is the Social Security Administration records showing a grant of disability benefits for schizophrenia.  Subsequent private treatment records show the Veteran has received the following various psychiatric diagnoses:  
1) No diagnosis of psychiatric disorder - private hospitalization record from April to May in 2000; 
2) Schizophrenia - February 18, 2004, SEARHC Treatment Summary (residual type);  November 13, 2008, Southcentral Foundation (bipolar type);
3) Schizoaffective disorder - November 13, 2000 Gateway Center for Human Services treatment plan; July 11, 2007 Southcentral Foundation Admission Intake Assessment; 
4) Psychotic disorder not otherwise specified - April 2013 VA examination report;
5) Depressive disorder not otherwise specified - November 3, 2000 Mental Health Services Consultation (by history); Department of Corrections mental health treatment records from February 2000 to October 2001; October 23, 2003 Gateway Center for Human Services treatment record; February 18, 2004, SEARHC Treatment Summary; April 4, 2008 Alaska Native Medical Center Psychiatric note; February 5, 2009 Alaska Native Medical Center treatment record (history of); Southcentral Foundation treatment records from 2007 to 2009; and April 2013 VA examination report;
6) Manic depression - July 25, 2001, PCC Ambulatory Encounter form; 
7) Major depressive disorder, recurrent (including as by history) - Department of Corrections mental health treatment records from February 2000 to October 2001;
8) Personality disorder - private hospitalization record from April to May in 2000 - personality disorder not otherwise specified (with both inadequate and narcissistic features); November 3, 2000, Mental Health Services Consultation - schizoid personality disorder; February 5, 2009 Alaska Native Medical Center treatment record - personality disorder not otherwise specified;
9) Polysubstance Dependence (alcohol and cannabis) - private hospitalization record from April to May in 2000 - alcohol dependence only; Department of Corrections mental health treatment records from February 2000 to October 2001 - alcohol dependence in controlled remission; October 23, 2003 private treatment record; February 18, 2004, SEARHC Treatment Summary; February 5, 2009 Alaska Native Medical Center treatment record (history of alcohol dependence in partial remission); Southcentral Foundation treatment records from 2007 to 2009 (alcohol only).

Consequently, the Veteran's diagnosed psychiatric disorders can be categorized as a depressive disorder (depressive disorder not otherwise specified, major depressive disorder, manic depression); a psychotic disorder (schizophrenia, schizoaffective disorder, psychotic disorder not otherwise specified); polysubstance dependence; and a personality disorder (schizoid personality disorder, personality disorder not otherwise specified).  As the medical evidence demonstrates the Veteran has a current psychiatric disorder for which service connection may be established, the Board finds the criterion of having a current disability has been met.

Next the Board will look to see if there was something noted in service.  At his entrance examination in February 1984, the Veteran denied having frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.  He did report, however, marijuana use (smoking it every other day with last use four days before examination) and using alcohol (with a driving while intoxicated charge in 1980/1981).  

His service treatment records do not contain any mental health treatment notes.  They do, however, contain the Report of Naval Aptitude Board dated April 19, 1984.  This report shows the Veteran was 19 years old and had been a recruit for three weeks on active duty and was referred to this board with a diagnosis of adjustment problems.  The board found the Veteran's past history before enlistment to be reliable.  It was noted that the Veteran was the product of a broken home and was the first child of six siblings.  His relationship with his parents was fair.  He completed 12 grades of schooling at the age of 19 years with a grade average of 1.8.  It was noted he was suspended from school two times and was involved with civil law enforcement agencies.  The Veteran admitted to being charged with the following civil offense(s):  Held for robbery but not charged.  There was also noted a civilian psychiatric history for depression without suicide gesture(s) as a civilian.  The Veteran admitted illicit drug use (marijuana).  He denied use of alcohol.  Before enlistment, it was noted the Veteran worked in a variety of menial jobs from which he was fired because he was "too slow."  He reported he enlisted in the Navy because he needed a place to stay and to "better himself."  

The Veteran began his recruit training on March 19, 1984.  He was referred to the Recruit Evaluation Unit (REU), Medical Clinic, Naval Training Center, San Diego, CA., on April 9, 1984.  The consultant noted the history and that the recruit's service adjustment to date had been poor.  The Veteran verbalized no motivation for continued active duty in the naval service.  He was referred to REU by his command for evaluation of adjustment problems.  During the interview at REU, he was oriented in all spheres, and there was noted no clinical evidence of delusions, hallucinations, impaired reality testing, thought disorder, or organic brain disease.  He was not considered genuinely suicidal or homicidal.  His fund of information was consistent with AFQT score of 48.

The diagnostic impression of the recruit was that he evidenced the following adjustment disorder characteristic(s):  Clinical interview and past history reveal that he is experiencing a depression of moderate severity which existed prior to entry on active duty.  Chronic depression, low energy level, social withdrawal, impaired ability to concentrate, pessimistic attitude and impaired performance suggest a poor prognosis for useful service.  It was recommended to the Veteran that he seek outpatient therapy for his depression upon return to his home.  It was determined that the Veteran did not display the appropriate or expectable reaction to the stress of recruit training.  Mental status examination was noted to not reveal evidence of psychosis or disabling neurosis.  The consultant diagnosed "adjustment disorder with depressed mood."  The recommendation was discharge from the Navy for the above diagnosis by reason of Convenience of the Government.

The Veteran's original DD214 shows that the Type of Discharge was "entry level separation {uncharacterized}."  Character of Service was listed as "entry level separation."  The narrative reason for discharge was " other physical/mental condition - personality disorder."  In November 2007, the Veteran's DD214 was administratively reissued by the Navy Personnel Command.  This changed the Type of Discharge to "discharged" and the Character of Service to "(uncharacterized) entry level separation."  The Narrative Reason for Separation was also changed to "secretarial authority."

Consequently, the Board finds that the service treatment records do show a psychiatric disorder (or at least symptoms of one) in service; however, the Report of Naval Aptitude Board from April 1984 raises the question of whether any psychiatric disorder pre-existed the Veteran's entry into active duty.  A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service except for conditions noted on his entrance examination.  38 U.S.C.A. §§ 1111 and 1132.  The initial question that must be resolved in this case is whether the Veteran's noted psychiatric symptoms/disorder in service pre-existed his entry into active military service in March 1984.  

In this case, the Veteran's entrance medical examination noted the Veteran's use of alcohol and marijuana prior to his entrance into service.  It does not, however, demonstrate any depressive disorder or psychotic disorder.  Consequently, the Veteran must be presumed sound unless the presumption of soundness can be rebutted by clear and unmistakable evidence that the disorder existed prior to entry into service and was not aggravated during service.  38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304(b).  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service.  Where the evidence shows that there was an increase in disability during service, there is a presumption that the disability was aggravated by service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b).  There is no aggravation of a preexisting disease or injury if the condition underwent no increase in severity during service on the basis of all of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service.  38 C.F.R. § 3.306(b).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b)(1).  Intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation; rather, the underlying condition must have worsened.  Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  The United States Court of Appeals for Veterans Claims (CAVC) has held that when a disability has improved in one respect but has been made worse in another respect by in-service medical or surgical treatment, the rating schedule should be used to determine if the overall degree of disability has increased during service.  Verdon v. Brown, 8 Vet. App. 529, 538 (1996).

In order to obtain an answer as to whether there is clear and unmistakable evidence that the Veteran had a psychiatric disorder that pre-existed service and was not aggravated by service, a VA mental health examination was obtained in April 2013.  After thoroughly reviewing the Veteran's claims file, including service treatment records, and examining the Veteran, the examiner diagnosed depressive disorder not otherwise specified, psychotic disorder not otherwise specified, alcohol dependence, cannabis dependence and personality disorder not otherwise specified by history.  Based on the records reviewed, in particular the Report of Naval Aptitude Board dated April 19, 1984 and signed by Veteran, and the Veteran's self-report at this evaluation that he experienced mental health symptoms prior to service, the examiner opined that there is clear and unmistakable evidence that a psychiatric disorder existed prior to active duty, despite the fact that the Veteran denied symptoms on his enlistment medical examination.  In addition, based on the Report of Naval Aptitude Board dated April 19, 1984, which the examiner found clearly delineated symptoms and functioning prior to and during military, the examiner opined that the evidence of record clearly and unmistakably shows that the pre-existing psychiatric disorder was not aggravated by service.  The examiner noted that the Report of Naval Aptitude Board documents that the Veteran's pre-military occupational functioning was not significantly different from his functioning in the military, noting that "He worked in a variety of menial jobs before enlistment.  He was fired because he was 'too slow.'  He enlisted in the Navy because he needed a place to stay and to 'better himself.'"  Furthermore, the examiner opined that, based on available evidence, it is less likely than not that the Veteran presented any prodromal signs of any currently diagnosed psychotic disorder.  As noted in the Report of Naval Aptitude Board dated April 19, 1984, the Veteran evidenced depression only (which also was pre-existing as noted) with no symptoms of psychotic disorder.

The Board reads this examiner's opinion as stating that the Veteran's current depressive disorder pre-existed his entry into active duty but not his current psychotic disorder because there was no evidence of a psychosis at the time of the April 1984 evaluation, only depression, and there was no report of any pre-existing psychotic symptoms.  Consequently, the Board will consider each disorder separately in analyzing the Veteran's claim for service connection for a psychiatric disorder.

Depressive Disorder

Based upon the evidence of record, the Board finds that there is clear and unmistakable evidence that the Veteran's depressive disorder pre-existed his entry into active duty and was not aggravated by service.  

The April 1984 Report of Naval Aptitude Board clearly demonstrates the Veteran's report of having depressive symptoms prior to his entry into active duty.  Furthermore, the Naval Aptitude Board and the consultant who examined the Veteran determined that the Veteran's depression pre-existed his entry into active duty.  Although the Board acknowledges that typically the Veteran's report alone is not sufficient evidence 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) in the present case there are medical opinions based upon those statements that his depression pre-existed his entry into active duty.  Furthermore, the April 2013 VA examiner found that, based upon the in-service medical evidence and the Veteran's own report at the examination, there was clear and unmistakable evidence that the Veteran's depressive disorder pre-existed his entry into active duty despite his having denied depressive symptoms at the time of his entry examination.  

In determining whether a disorder existed prior to entry into service, it is important to look at accepted medical principles including clinical factors pertinent to the basic character, origin, and development of the disorder.  38 C.F.R. § 3.304(b)(1).  History given by a veteran, which conformed to accepted medical principles, in conjunction with basic clinical data, is probative evidence of the incurrence, symptoms, and course of the disorder.  38 C.F.R. § 3.304(b)(2).  

Hence, in finding that the Veteran's depressive disorder pre-existed his entry into active duty, the Board is not just relying on the Veteran's statements but also on medical evidence based upon accepted medical principles and clinical evaluations of the Veteran.  

Furthermore, the April 2013 VA examiner opined that there is clear and unmistakable evidence that the Veteran's pre-existing depressive disorder was not aggravated during service.  He based that opinion on the fact that the Report of Naval Aptitude Board indicated the Veteran's symptoms and functioning before and during service and that this evidence clearly demonstrates that the Veteran's symptoms and functioning were not significantly different during service than they had been before service.  The Board further notes that the Report of Naval Aptitude Board clearly indicates the Veteran's depression was chronic.  There was no indication of a worsening but rather states that the Veteran was experiencing a depression of moderate severity which pre-existed service clearly demonstrating that there was no increase in the Veteran's depressive symptoms.

Based on the foregoing, the Board finds that there is clear and unmistakable evidence that the Veteran's current depressive disorder pre-existed his entry into active duty and was not aggravated during service, and therefore the presumption of soundness is rebutted.  Furthermore, as previously discussed, the evidence does not show a worsening in the Veteran's pre-existing depression; therefore, the preponderance of the evidence is against finding aggravation of the Veteran's pre-existing depression during service.    Service connection for a depressive disorder must, therefore, be denied.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Service connection is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Psychotic Disorder

As for the Veteran's current psychotic disorder, the Board notes that there was no notation on the Veteran's entrance examination of psychotic symptoms such as auditory or visual hallucinations.  Despite the Veteran's report at the April 2013 VA examination that he began having auditory hallucinations that were not troublesome when he was 18 (prior to his entry into active duty), the Board finds that this report alone is insufficient to constitute clear and unmistakable evidence that the Veteran had a psychotic disorder prior to his entry into active duty.  See e.g., Gahman, 13 Vet. App. at 150.  Furthermore, in rendering an opinion, the April 2013 VA examiner clearly did not opine that the Veteran's psychotic disorder pre-existed service; rather only his depression did.  Consequently, the Board finds that the presumption of soundness attaches as to a psychotic disorder.  The Board must, therefore, consider whether the Veteran's current psychotic disorder had its onset in service, manifested to a compensable degree within one year after his discharge from active duty, or otherwise is related to his military service.

Initially, the Board notes that the Veteran has reported having heard voices and broadcasting thoughts since 1983 (see Veteran's statement from April 2009), which would have been before his entry into service.  The service treatment records are, however, silent for any symptoms of psychosis.  In fact, the April 1984 Report of Naval Aptitude Board clearly indicated that the consultant who evaluated the Veteran did not find any evidence of psychosis or disabling neurosis.  Consequently, the Board finds that there is no evidence to establish the Veteran's current psychotic disorder had its onset in service, much less that it was chronic during service.  

Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service.  38 C.F.R. § 3.303(b).  Service connection may also be warranted if the competent and credible evidence of record establishes that the disability was incurred in service or otherwise related to service.

In the present case, the first medical evidence of a psychosis is from 1991 (seven years after Veteran's period of active duty) when the Veteran filed for Social Security Administration disability benefits and was granted benefits for a primary diagnosis of schizophrenia.  This was based upon a physician's review in June 1992 in which the physician checked that the Veteran had " schizophrenic, paranoid and other psychotic disorders."  The physician, however, did not note any auditory or visual hallucinations or other such symptoms.  Instead he noted that the Veteran had significant impairment of social functioning and activities of daily living, and that the Veteran's delusional thinking and preoccupation with perceived needs reflect significant levels of impairment in concentration and attention.  In January 1990, he underwent psychological evaluation because he wanted to get back into the Navy.  The report of this evaluation, however, does not indicate that the Veteran had any psychotic symptoms or disorder at that time.  

Records from 1990 show that, in or around July 1990, the Veteran became involved with a community support program, which appeared to be geared towards helping him in developing socially as well as assisting him vocationally.  Notes from the Veteran's caseworker from July 1990 and forward do not indicate any report by the Veteran of having any psychotic symptoms or that he observed the Veteran having any psychotic symptoms.  As part of this program, the Veteran began seeing a mental health counselor in October 1990.  The report of this initial meeting does not demonstrate the Veteran had any overt psychotic symptoms such as hallucinations, delusions, flights of ideas, etc.  No diagnosis of any psychotic disorder was given.  Subsequent notes also do not indicate the presence of any psychotic symptoms.  The Veteran also saw a psychiatric consultant (see April 1991 treatment note).  Again, this psychiatrist's note does not demonstrate the Veteran had any overt psychotic symptoms.  

Records from Gateway Center for Human Services from January 1999 to November 2001 show continued treatment with the same psychiatrist who saw him in April 1991 as part of the community services program.  Although a November 13, 2000, CSP Treatment Plan lists the Veteran's diagnoses to include schizoaffective disorder, these records do not show either reports or objective evidence of the Veteran having psychotic symptoms such as hallucinations or delusions.  

In April 2000, the Veteran was admitted to a private hospital on an Evaluation and Observation order to determine his competency to stand trial (he had legal charges pending).  On admission, it was noted that the Veteran was reluctant to answer some questions and there were long response latencies.  He reported that he has difficulty with questions that come at him quickly and he has difficulty elaborating on them; however, the physician noted that his sensorium and concentration were unimpaired; he was oriented in four spheres; his memory was grossly intact; and, although his speech was slow, once he got started he talked fine and his thoughts were normally associated.  The Veteran reported having auditory and visual hallucinations but was unable to elaborate on them at all.  When asked for symptoms of his schizophrenia, he was unable to provide any symptoms whatsoever.  His mood state was considered euthymic.  Although he reported symptoms of depression, he was unable to provide anything that was suggestive of subjective sadness other than his concerns about his penis.  He did report symptoms of hypersomnia.  His judgment was noted to be poor around his use of substances and interpersonal relationships.  He had limited insight.  The physician noted that the Veteran did not endorse any symptoms which were considered genuine and it was not clear that he had a severe mental disorder.  During the hospitalization, it was noted that observation of him did not suggest that his report of having auditory or visual hallucinations was true.  He remained oriented and well in touch with reality throughout his admission.  Consequently, his reports were thought not to be valid.  It was noted that the Veteran had been diagnosed to have schizophrenia in the course of treatment through the Mental Health Center, but reviewing the available records did not suggest that he had been experiencing positive symptoms for a number of years.  Most of these reports describe primarily negative symptoms and the disorganizing effects of severe use of substances.  It was further noted that the Veteran had been treated with Prozac for Obsessive-Compulsive Disorder symptoms but no OCD symptoms were observed during this admission.  In summary, the physician stated that it did not appear that the Veteran had any severe psychiatric disorder at that time and the veracity of his claims of mental illness must be questioned.  The final diagnosis of was alcohol dependence and personality disorder (with both inadequate and narcissistic features).  

Records from the Alaska Department of Corrections from February 2000 through October 2001 contain mental health treatment records from March 2000 to August 2001.  None of these treatment records show either reports or objective findings of psychotic symptoms or a diagnosis of a psychotic disorder.

In a September 2001 Mental Disorders Questionnaire Form filled out by the Veteran in what appears to be an application for treatment at Gateway Center for Human Services, the Veteran denied having any delusions or hallucinations.  

Treatment records from Gateway from June 2003 to February 2004 do not show a diagnosis of a psychotic disorder but do demonstrate a diagnosis of schizoid personality disorder.  A February 18, 2004, treatment summary from SEARHC (where it appears the Veteran received inpatient alcohol dependence treatment) shows a diagnosis of schizophrenia residual type along with alcohol and cannabis dependence and depressive disorder not otherwise specified.  This report, however, does not indicate upon what symptoms the diagnosis of schizophrenia residual type was based.  

Consequently, the first medical evidence of record clearly showing the Veteran reporting psychotic symptoms is a July 2007 Admission Intake Assessment with Southcentral Foundation.  At that time, he reported being diagnosed with schizoaffective disorder in 1992.  When asked about his psychiatric symptoms, he said, "I hear voices - ESP type voices - usually when it's quiet - "day dreaming" voices.  Nothing critical - they don't get on my nerves.  I don't hear them all the time and sometimes I can go a while without hearing them at all.  Drinking relieves everything."  He also reported some delusional thoughts that other people can read his mind and that perhaps some people are out to get him.  There was also an indication that the Veteran has a belief about thought insertion and deletion.  The assessment was schizoaffective disorder and alcohol abuse, sporadic.  After an annual review evaluation in April 2008, however, that diagnosis was changed to depression not otherwise specified, rule out schizoaffective disorder, depressed type.  A November 2008 Intake Assessment report for readmission to this program shows the Veteran's continued report of hearing voices and also of thought broadcasting and paranoid thoughts.  The diagnosis was schizoaffective disorder - bipolar type; however, this diagnosis was again changed in February 2009 to rule out schizophrenia, paranoid type; rule out psychotic disorder not otherwise specified; history of depressive disorder, not otherwise specified; history of alcohol dependence in partial remission; and personality disorder not otherwise specified.  An April 2009 clinic note indicates an assessment of depressive disorder with psychotic features versus schizoaffective disorder, depressed type.

In April 2013, the Veteran underwent a VA mental health examination at which he reported having auditory hallucinations.  As a result, the examiner diagnosed him to have a psychotic disorder not otherwise specified.  In providing an opinion as to a nexus to service, the examiner opined that it is less likely than not that the Veteran presented any prodromal signs of any currently diagnosed psychotic disorder.  His reasoning was that the Report of Naval Aptitude Board from April 1984 demonstrates that the Veteran only evidenced depression with no symptoms of a psychotic disorder.  In fact the board specifically stated that there was no clinical evidence of delusions, hallucinations, impaired reality testing, thought disorder or organic brain disease.

Consequently, based upon the evidence of record, the Board finds that the preponderance of the evidence is against finding a continuity of symptomatology of the Veteran's psychotic disorder since service.  The Board acknowledges that the Veteran has stated that the onset of his auditory hallucinations was around when he was 18 years old (or 1983), which would actually have placed the onset of them before he entered into active duty.  The Board also acknowledges that the Veteran is competent to testify that he has heard voices since age 18 or 1983.  The Board finds more persuasive, however, the significant amount of medical evidence that fails to show any credible report of psychotic symptoms until 2007.  The Veteran has essentially been in and out of mental health treatment since 1990 and yet the only treatment record that shows a report of hallucinations is the April 2000 private hospitalization report; however, the physician at that time found the Veteran's report of symptoms to not be valid as the Veteran failed to provide any detail of his reported psychiatric symptoms.  Even the physician who evaluated the Veteran in June 1992 for Social Security disability purposes did not indicate any report of hallucinations.  Rather his diagnosis relied upon the Veteran's social impairment and delusional thoughts.  Although delusional thoughts are a sign of psychosis, the Board notes that the Veteran has not reported having delusional thoughts since service, only auditory hallucinations.  Even if the Board were to consider this evidence as an indication of a psychotic disorder at that time, the Board notes that it was more than eight years after the Veteran's discharge from active duty and, thus, cannot be considered to show a continuity of symptomatology since service, especially since the Veteran headaches snot reported a continuity of such symptom.

Consequently, the overwhelming medical evidence fails to demonstrate any credible evidence of a psychotic disorder for many years after the Veteran was discharged from service.  The Veteran's allegation as to continuity of symptomatology, standing alone, therefore, is not plausible in light of the absence for many years of continuous symptomatology in the mental health treatment records.  See McManaway v. West, 13 Vet. App. 60, 66-67 (1999).  The Board finds, therefore, that service connection under 38 C.F.R. § 3.303(b) based upon the onset of a chronic disease in service or a continuity of symptomatology since service is not warranted as the evidence of record fails to demonstrate that the Veteran had a chronic psychotic disorder in service or for many years after service.

Furthermore, the Board finds that presumptive service connection for a psychosis is not warranted as the medical evidence of record fails to demonstrate that the Veteran's current psychotic disorder manifested to a compensable degree within one year of his discharge from active duty.  Again, the medical evidence of record shows at least eight years between the Veteran's discharge from active duty and the first possible evidence of the presence of a psychotic disorder.

Finally, the Board finds that the preponderance of the evidence is against finding that the evidence of record otherwise indicates a relationship between the Veteran's military service and his current psychiatric disorder.  The Veteran himself actually does not report the onset of psychotic symptoms in service.  Rather he has reported that their onset (his hearing voices) began prior to his entry into active duty when he was 18 years old (or in 1983).  Consequently, the Veteran's reports do not support finding that his current psychotic disorder either had its onset in service or is otherwise related to his active duty.  

Furthermore, the April 2013 VA examiner opined that it is less likely as not the there were any prodromal symptoms of the Veteran's current psychotic disorder in service.  He based his opinion on the Report of Naval Aptitude Board from April 1984.  The Board finds this opinion to be very probative and persuasive as it is based upon a review of the full record and is supported by the evidence of record that fails to show any evidence of psychotic symptoms for many years after service.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.).  The Board notes that the Veteran has not submitted any medical opinion opposing that provided by the VA examiner.  Consequently, the Board finds that service connection under 38 C.F.R. § 3.303(a) is also not warranted.

In conclusion, the Board finds that the preponderance of the evidence is against finding that service connection is warranted for the Veteran's current psychotic disorder.  The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits.  Service connection is, therefore, denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Polysubstance Dependence

The medical records in the claims file are replete with evidence of a diagnosis of both alcohol and cannabis dependence.  The Board finds, however, that service connection for any substance dependence is not warranted as such is prohibited by law as it is due to the Veteran's willful misconduct.  

Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs.  38 C.F.R. § 3.301(a).  

The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct.  Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin.  See 38 C.F.R. § 3.301(d) (regarding service connection where disability or death is a result of abuse of drugs.)  Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin.  38 C.F.R. § 3.301(c)(3).

In the present case, the medical evidence demonstrates the Veteran's consistent report that his alcohol and cannabis use started when he was a teenager, years before he entered into active duty.  It is clear that he has since continued to use alcohol and cannabis progressively and frequently to the point of addiction.  Consequently, the Board finds that the Veteran's alcohol and cannabis dependence is the result of his own willful misconduct and service connection is barred as a matter law.  

Even if the Board were to consider that the Veteran's alcohol and cannabis use was a way of self-medicating due to his psychiatric disorders, since service connection has not been established for those disabilities, service connection for his alcohol and cannabis dependence cannot be granted on a secondary basis.

For the foregoing reasons, the Board finds that service connection for alcohol and cannabis dependence is not warranted as a matter of law.  Consequently, the Veteran's claim must be denied.

Personality Disorder

The medical evidence shows that the Veteran has a personality disorder that has been diagnosed as either schizoid personality disorder or personality disorder not otherwise specified. The Board notes that personality disorders are not considered to be disabilities within the meaning of VA compensation law.  See 38 C.F.R. § 3.303(c).  Consequently, service connection for a personality disorder must be denied as a matter of law.  

 


ORDER

Entitlement to service connection for an acquired psychiatric disorder is denied.





____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs