Citation Nr: 1324518 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 10-13 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder, to include schizophrenia and bipolar disorder. ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from June 12, 1989 to November 1, 1989, with additional reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in July 2012 when it was remanded for additional development. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The most probative evidence fails to link the appellant's psychiatric disorder to his period of ACDUTRA. CONCLUSION OF LAW The requirements for establishing service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a June 2006 letter, issued prior to the decision on appeal, the appellant was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA. The letter also advised the appellant of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant, including available service treatment records, post-service treatment records, and Social Security Administration (SSA) records. In April 2008, the RO made a Formal Finding as to the unavailability of the appellant's service treatment records other than those associated with the claims file (which are largely limited to November 1997); any such records are presumed irretrievably lost. Therefore, VA has a heightened duty to assist the appellant in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). He was afforded a VA examination in August 2012. The examination is adequate for rating purposes as the examiner expressed familiarity with the pertinent medical history, and conducted a thorough examination, noting all findings necessary for consideration of the applicable criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the appellant. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a), (d). The presumption of soundness under 38 U.S.C.A. § 1111 (and 38 U.S.C.A. § 1132 for peacetime veterans) and the presumption of aggravation under 38 U.S.C.A. § 1153 and incorporated by section 101(24)(B) do not apply where the appellant is claiming his or her disability is related to a period of ACDUTRA and veteran status has not otherwise been established. Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Service connection on a presumptive basis is also not warranted for periods of ACDUTRA. Smith, 24 Vet. App. at 46-47. Accordingly, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1137 and 38 C.F.R. § 3.309 do not apply to the appellant's claim. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The instant claim for service connection was received in May 2006. The appellant alleges that his psychiatric symptoms began in basic training during his period of ACDUTRA. The evidence of record shows that the appellant's initial psychiatric hospitalization occurred from February 15, 1990 to March 1, 1990. He was brought to the hospital by his parents after he became increasingly more confused and less able to function, hearing voices, and worrying about being discharged from the Army (reserves). It was noted that in June 1989 he spent nine weeks in boot camp and nearly nine weeks in Army school to learn communications. It was reported that at the end of his training, he was inducted into the Army reserves. Thereafter, it was reported that in November 1989 he went to work at a toy store, but that he only stayed a few weeks because he was in a fight and he did not like to be out in public. In January 1990, he started working full time for an automobile electric company and started taking classes at college. He reported that he gradually found himself under a lot of pressure. He stated he felt like "hay-wire," started hearing voices and becoming confused, and worried that he would be discharged from the Army. He stated he was laid off from work, and although he was getting C's in college, asked for a leave of absence. The discharge summary report noted the appellant was brought to the hospital due to deterioration of functioning over the past four weeks. It was noted that further history taking indicated that he had actually had difficulty of one year's time (i.e., prior to his ACDUTRA) working at work and being in the Army reserves whereupon he was somewhat paranoid with others thinking that he was homosexual and out to get him. During his hospitalization, the appellant was treated with neuroleptics, his condition improved, and he was diagnosed with atypical psychosis. It was thought that it could be schizophreniform if not schizophrenic presentation, but his improvement in history was such that a diagnosis of atypical psychosis was appropriate. Post-service treatment records show continued treatment for paranoid schizophrenia. In addition, in 2005, the appellant was diagnosed with bipolar disorder. In July 2012, the Board remanded the matter for additional development, to include affording the appellant a VA psychiatric examination to determine the nature of his current psychiatric disorder and to obtain an opinion as to whether such disorder was related to service. On August 2012 VA examination, it was noted that the appellant meets the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV) criteria for a diagnosis of paranoid schizophrenia. However, he did not meet the full DSM-IV criteria for a diagnosis of bipolar disorder. The appellant related that his symptoms started in June or July 1989 in boot camp. He described his symptoms as feeling like his brain was getting tight, getting angrier and not knowing why, hearing voices and seeing things, and thinking people said something and they did not. The appellant indicated he did not seek mental health treatment during his ACDUTRA, but that as soon as he got home he was in a fight with his best friend and his mother sent him to the hospital. The examiner noted, and the February 1990 hospitalization report shows that while the appellant did report getting into a fight after his ACDUTRA, at the time of the hospitalization he had experienced deterioration of functioning over the past four weeks, and additional questioning revealed that he had actually had difficulty of one year's time. The examiner noted that the onset of schizophrenia typically occurs between the late-teens and the mid-30s, with the modal onset for men being between 18 and 25 years old. The onset may be abrupt or insidious, but the majority of individuals display some type of prodromal phase manifested by the slow and gradual development of a variety of signs and symptoms. Typically, functioning is clearly below that which had been achieved before the onset of symptoms. Many individuals are unable to hold a job for sustained periods of time. Given the above information and review of the appellant's claims file, the examiner opined that it was less likely as not that the appellant suffered from schizophrenia prior to his period of ACDUTRA. He likely had mild prodromal symptoms prior to the ACDUTRA, but he most likely did not meet the full DSM-IV criteria for the diagnosis of schizophrenia prior to his period of ACDUTRA as he did not display social/occupational dysfunction (e.g., he graduated high school just prior to his ACDUTRA, and was reportedly holding a steady job prior to his ACDUTRA, and even if he was having some difficulty at work, it was not markedly below the level achieved prior to the onset of schizophrenia). The examiner also opined that the appellant's current psychiatric disorder (i.e., schizophrenia) less likely as not arose during his period of ACDUTRA. The basis for the conclusion was that the evidence suggests the appellant did not meet the criteria for a diagnosis of schizophrenia until around four weeks prior to the February 1990 psychiatric hospitalization record. The examiner further opined it was less likely as not the appellant's schizophrenia was otherwise related to his period of ACDUTRA as he denied experiencing any trauma or incident outside of the normal range of experience during his training and there is no nexus evidence to link his schizophrenia to his military service. Based on the evidence above, the Board notes that although there is evidence suggesting the appellant's schizophrenia pre-existed his June 12, 1989 to November 1, 1989 period of ACDUTRA, the August 2012 VA examiner has opined that such evidence only shows early symptoms of schizophrenia prior to his ACDUTRA, but that he did not meet the full criteria for schizophrenia at that time. As there is no competent evidence to the contrary, the Board finds this opinion persuasive. Thus, the question is whether the appellant's schizophrenia is related to his period of ACDUTRA. As noted above, the appellant's available service treatment records are limited. Nonetheless, the appellant on August 2012 VA examination denied seeking any mental health treatment during his ACDUTRA. Hence, the lack of service treatment records is not prejudicial to his claim. To the extent the evidence of record shows diagnoses of bipolar disorder, the Board notes that there is no evidence of such disorder during the pendency of this appeal. The threshold requirement (as in any claim seeking service connection) is that there must be competent evidence that the appellant has (or during the pendency of this claim has had) the disability for which service connection is sought. As the record does not include any such evidence, and such disorder was not found on August 2012 VA examination, there is no valid claim of service connection for bipolar disorder. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the appellant contends that his current schizophrenia is related to his period of ACDUTRA, the Board finds the most probative evidence is against such contention. Specifically, after considering the medical evidence of record, and examining and interviewing the appellant, the VA examiner in August 2012 concluded that the appellant's schizophrenia was less likely as not related to his period of ACDUTRA. The examiner explained that the appellant did not meet the criteria for a diagnosis of schizophrenia until approximately four weeks prior to the February 1990 psychiatric hospitalization record. As reflected in the appellant's initial psychiatric hospitalization report for the period from February 15, 1990 to March 1, 1990, he had been experiencing deterioration of functioning over the past four weeks. The examiner noted that as the medical literature shows schizophrenia is typically characterized by functioning clearly below that which had been achieved before the onset of symptoms, and based on the evidence of record, the appellant's schizophrenia did not arise until approximately January 1990, after his period of ACDUTRA. The August 2012 VA examiner's opinion was based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale. Thus, such opinion is highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 2095 (2008). To the extent the appellant himself believes that his current schizophrenia is connected to his period of ACDUTRA, there is nothing in the record establishing that he has the specialized training sufficient to render such an opinion. He is competent to state when he first experienced symptoms. However, the Board finds the contemporaneous report of his symptoms starting a year prior to his February 1990 hospitalization (and prior to his period of ACDUTRA), and the report of his deterioration four weeks prior to his hospitalization in February 1990, to be more probative as to the onset of symptoms than the appellant's present recollections being made more than 20 years after his period of ACDUTRA and while in pursuit of his claim for benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence, conflicting statements of the claimant, and the significant time delay between the affiants' observations and the date on which the statements were written in weighing credibility). The Board also notes that medical expertise is required to determine the presence of schizophrenia, and the etiology of such psychiatric disability requires medical expertise to determine, especially since the onset of such can occur at a wide-range of ages and the onset may be abrupt or insidious. See August 2012 VA examination report (using medical information from the DSM-IV text). Moreover, whether the symptoms the appellant claims to have experienced in service or following service are in any way related to his current schizophrenia is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Accordingly, the appellant's own opinion as to the diagnosis or etiology of his schizophrenia is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the opinion of the August 2012 VA examiner to be of significantly greater value than the appellant's lay assertion in this matter. As there is no competent evidence to the contrary, the Board finds such to be persuasive and entitled to great probative value. In this case, the most probative evidence is against a finding that the appellant's schizophrenia is related to his period of ACDUTRA. Moreover, as noted above, service connection on a presumptive basis pursuant to 38 C.F.R. § 3.307, 3.309(a) is not warranted for claims based on periods of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010). Accordingly, the claim for service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a psychiatric disorder, to include schizophrenia and bipolar disorder, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs