Citation Nr: 1324552 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 98-19 316 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from July to October 1978, August 1983 to February 1984, and from July 1984 to April 1988. She also had service with the Army National Guard from July 1988 to December 1990. She had active duty for training (ACDUTRA) for various periods, including during July, August, and September 1989, as well as March and June 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that found that new and material evidence had not been received to reopen a claim for service connection for an acquired psychiatric disability. This case has been before the Board in August 2003, February 2006, January 2008, July 2010, February 2012, and again in December 2012, and was remanded on each occasion for additional development and/or to ensure due process. In February 2012, the Board determined that new and material evidence had been received since the issuance of a March 1993 final rating decision sufficient to warrant reconsideration of the claim. The case is again before the Board for appellate consideration. Concerning the March 1993 rating decision, it denied the Veteran service connection for major depression on the basis that it was not shown during active military service, and that a psychosis was not shown within one-year following her separation from active military service. The RO also determined that service connection could not be established for a personality disorder as it was considered a constitutional or developmental abnormality, and not a ratable entity. Evidence associated with the claims file since then includes service treatment and personnel records. VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1)(i). Consequently, such de novo review was found to be warranted by the Board in February 2012. FINDING OF FACT The most probative evidence of record is in equipoise as to whether the Veteran's schizoaffective disorder, bipolar type, with depression was first manifested during a period of ACDUTRA. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, schizoaffective disorder, bipolar type, with depression was incurred during a period of ACDUTRA. 38 U.S.C.A. §§ 101, 1101, 1110, 1131, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.385, 4.9 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As the claim of entitlement to service connection for an acquired psychiatric disorder is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the issue on appeal is not necessary. The Veteran claims that she has major depression, due to her pregnancy, the death of her child, and the divorce from her husband. She contends that her child's conception, child's death, and her divorce all occurred while she was on active duty. The Veteran has various periods of active service, Reserve Service, and National Guard Service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The term "Veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2) ; see also 38 C.F.R. § 3.1(d). "The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). The term "active duty for training" includes, "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22)(A); 38 C.F.R. § 3.6(c)(1). The term "inactive duty training" includes, "duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law" or "special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service ) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned." 38 U.S.C.A. § 101(23)(A),(B); 38 C.F.R. § 3.6(d)(1),(2). The term "active duty for training" includes, "in the case of members of the Army National Guard or Air National Guard of any State, full-time duty under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(22)(C); 38 C.F.R. § 3.6(c)(3). The term "inactive duty training" includes, "[i]n the case of members of the Army National Guard or Air National Guard of any State . . . duty (other than full-time duty) under" certain sections of title 32, United States Code, including section 502. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d)(3). A veteran who served during a period of war is presumed to be in sound condition when enrolled for service, except for any defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as "noted." 38 C.F.R. § 3.304(b). The veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In Crowe v. Brown, 7 Vet. App. 238 (1994), the U.S. Court of Appeals for Veterans Claims (Court) noted that the presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. It was further noted that the regulation terminology denotes only such conditions as are recorded in examination reports and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). With respect to periods of inactive duty training (INACDUTRA), service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C.A. § 101(23), (24); Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Therefore, the appellant is not entitled to a presumption of sound condition at entrance onto a period of active duty for training or inactive duty training, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, including hearing loss, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service. In other words, the application of 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) are not available with respect to periods of ACDUTRA or INACDUTRA. The evidence of record reflects that the Veteran's child was born in November 1989, that around that same time her husband indicated an unwillingness to remain in the marriage, that the Veteran was treated for depression in December 1989, July 1990, and August 1990, and that the child died in approximately April or May of 1990. The Veteran's service personnel records reflect that she did not have active service, to include ACDUTRA or INACDUTRA, during the pertinent months of November 1989, December 1989, April 1990, May 1990, July 1990, or August 1990. In addition to the National Guard Retirement Credit records which do not list the above dates, a DA Form 67-8, Officer Evaluation Report, dated in August 1990, reflected that the Veteran did not attend annual training and was absent at drill. Memoranda dated in August 1990 and October 1990 reflected that the Veteran had been absent without leave (AWOL) from drills. The Veteran's initial claim seeking service connection for an acquired psychiatric disorder was received by VA in July 1992. She claimed to have major depression, which was diagnosed in November 1989. The service treatment records are negative for complaints or findings pertaining to a psychiatric disability. The Veteran denied frequent trouble sleeping, depression or excessive worry and nervous trouble on reports of medical history in September 1979, June 1983, February 1985, and April 1988. On the separation examination in April 1988, a psychiatric evaluation was normal. However, the service treatment reports of record also included a report of private hospitalization in December 1989 wherein it was noted that it was the Veteran's first psychiatric admission. It was reported that she had been in outpatient treatment but had become progressively more dysfunctional, despondent, and hopeless at home. It further noted that she had had a baby several weeks prior to admission, and this seemed to be a precipitant for her profound mood changes. There had been some hopelessness and talk of suicide and possibly harm to her child. Another precipitant for her depression seemed to be marital difficulties with her husband, essentially separating from her at the time of the child's birth. She expressed confusion about her marriage. The diagnoses were major depression, single episode, non-psychotic, and histrionic personality traits. The Veteran was hospitalized by the VA from July to August 1990. She related she had been going through numerous psychosocial stressors. She stated she had a bad marriage and her career was going downhill. She indicated she became pregnant in January 1989, and that it was unplanned. She blamed the baby as well as her husband for the decompensation in her life. She reported the baby died in April 1990, and that her husband had filed for divorce. The diagnoses were major depression, recurrent, and borderline personality disorder. The Veteran's service personnel reports of record included National Guard Retirement Credit records which do not document that she had active service, ACDUTRA or INACDUTRA during the pertinent months of November 1989, December 1989, April 1990, May 1990, July 1990, or August 1990. The Veteran was again hospitalized by the VA in August 1991, and from July to August 1992. On hospitalization for three days in August 1991, she complained of being very depressed with suicidal thoughts and multiple plans. She reported being depressed due to having an unwanted baby, and reported her husband had divorced her after the baby was born. Following psychiatric evaluation, the diagnoses were major depression with suicidal ideation, and borderline personality disorder. On VA hospitalization from July to August 1992, she described a four year history of dysthymia, dating to the death of her only child. Following psychiatric evaluation, the diagnoses were probable dysthymia, and borderline personality disorder. The evidence added to the record since the March 1993 determination included additional service medical treatment and service personnel records received in May 2006, Social Security Administration (SSA) records, private medical records and VA medical records. A Social Security Administration Disability Determination and Transmittal form showed that the Veteran became disabled in November 1989. A primary diagnosis of major depression was noted. Additional service treatment records included a report of inpatient treatment in November 1989 for a single live birth on November [redacted], 1989. A DA Form 67-8, Officer Evaluation Report, dated in August 1989, which covers the period from July 1988 to July 1989, reflected that the Veteran was an excellent officer. Another DA Form 67-8, Officer Evaluation Report, dated in January 1990, which covers the period from July 1989 to October 1989, reflected that the Veteran was extremely knowledgeable in administrative matters. Contrastingly, a DA Form 67-8, Officer Evaluation Report, dated in August 1990, which covers the period from November 1989 to July 1990, reflected that the Veteran did not attend annual training, was absent at drill, and had a general lack of initiative to carry out her officer responsibilities. It was noted that her performance of duty had been unsatisfactory, and that although she initially performed well during the rating period, that since the death of her child, she had appeared to have suffered from severe depression or other similar mental illness. A December 1989 private hospital report from Charter Hospital of Overland Park included a diagnosis major depression without psychotic features. A private licensed clinical psychologist reported he evaluated the Veteran in April 1991. The Veteran stated her functioning was worsening. She asserted she had been told to resign from the National Guard because she could not function due to her depression and because she was a danger to others because of her inattention and poor concentration. The examiner commented that due to her major depression symptoms the Veteran did not appear capable of functioning well in a job setting or relating to coworkers or supervisors. The Veteran was hospitalized in Osawatomie State Hospital from April 1993 to February 1994. She claimed she had been feeling severely depressed with suicidal ideation for the previous three years, following her baby's death and the loss of her job. It was also noted her husband left her three years ago. A diagnosis of recurrent major depression, severe without psychosis, was supplied. It is not disputed that the Veteran has a psychiatric disability, namely major depression. Essentially, the Veteran argues that her psychiatric disability is due to her pregnancy, the death of her child, and her divorce from her husband. The record appears to reflect that her last period of active duty ended in April 1988, with subsequent periods of ACDUTRA also confirmed. In its most recent remand in December 2012, the Board acknowledged that the Veteran apparently had active duty for training while she was pregnant, and that there was some indication in the record that the symptoms of her depression were manifested during a period ACDUTRA. As such, the Board requested that the Veteran be scheduled for a VA psychiatric examination. Pursuant to the Board's December 2012 remand instructions, the Veteran was provided with a VA mental disorders examination in January 2013, at which time she was diagnosed as having borderline personality disorder, as well as schizoaffective disorder, bipolar type. With respect to the probable etiology and date of onset of the psychiatric disability, the examiner seemed to indicate that it preexisted the Veteran's period of military service. The examiner indicated that the Veteran was a victim of childhood sexual abuse, and that there were health reports throughout her career indicating that she struggled with some depression, sleep problems, and anxiety likely due to the unresolved early trauma. The examiner noted that the Veteran continued to receive excellent work ratings, however, until she became pregnant in 1989 and struggled with severe depression. The examiner explained that it appeared that the Veteran's "depression (which is related to the diagnosis of schizoaffective disorder) became intense during the time she was stationed at Ft. Leavenworth in the National Guard but was not caused by her military duty there." The examiner further noted that "with the pre-existing condition of Borderline Personality Disorder, any instance of abandonment will result in an increase in depression and acting out behaviors." With respect to the VA examiner's suggestion that a psychiatric disability preexisted service, the Board notes that the Veteran was presumed to be in sound condition upon her entries into active service in July 1978, August 1983, and July 1984, as no psychiatric symptomatology was noted at that time of these inductions. However, the Board also notes that congenital or developmental defects, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation, see 38 C.F.R. § 3.303(c), although service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality. See VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown 8Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). Nonetheless, the Veteran has been diagnosed as having schizoaffective disorder, bipolar type, with depression, which is a disability within the meaning of the applicable legislation. Although it is unclear as to whether this is a freestanding disability or an additional disability superimposed on the diagnosed borderline personality disorder, the VA examiner's opinion suggests that this disability either first manifested or was permanently aggravated during the Veteran's periods of ACDUTRA. Moreover, it is clear from the Veteran's subsequent treatment records that this constituted a permanent worsening of the disability, and was not merely a temporary worsening of psychiatric symptomatology. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that schizoaffective disorder, bipolar type, with depression is shown to have been incurred in service. Therefore, service connection is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for schizoaffective disorder, bipolar type, with depression is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs