Citation Nr: 1330306	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  07-18 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Entitlement to service connection for a low back disability.

2. Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

McBrine, M., Counsel


INTRODUCTION

The Veteran was a member of the United States Army Reserves, with periods of active duty from June 1974 to December 1974, and from June 1979 to May 1980.

These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2006 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine, and Detroit, Michigan. Jurisdiction is currently with the RO in Detroit, Michigan.  The issues have been recharacterized to better reflect the evidence of record, the allegations of the Veteran, and the procedural postures of the claims.

The Veteran testified at a March 2011 hearing held before the undersigned Acting Veterans Law Judge (VLJ) at the RO; a transcript of this hearing is of record.

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure consideration of the totality of the evidence.

The issues were previously remanded by the Board in December 2011 and April 2013for additional development.


FINDINGS OF FACT

1.  A low back disability existed prior to the Veteran's entry into his second period of service in June 1979.

2.  The pre-existing low back disability did not increase in severity during service.

3.  No currently diagnosed low back disability was caused or aggravated by military service.

4.  The currently diagnosed acquired psychiatric disorder is caused by the Veteran's willful misconduct, specifically the recreational abuse of alcohol and drugs.

5.  No currently diagnosed acquired psychiatric disorder was caused or aggravated by military service.


CONCLUSIONS OF LAW

1.  The criteria for service connection of a low back disability are not met.  38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.12, 3.303, 3.304, 3.306 (2012).

2.  The criteria for denial of an acquired psychiatric disorder are not met.  38 U.S.C.A. §§ 105, 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

As noted above, the Board previously remanded this claim most recently in April 2013 for further development, specifically for clarification opinions regarding the etiology opinions contained in the Veteran's most recent VA examinations.  The clarifying opinions were obtained in April 2013 and his claim was readjudicated in a June 2013 SSOC.  Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

VA's Duties to Notify and Assist

With respect to the Veteran's claim of entitlement to service connection for multiple sclerosis, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

When VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

Letters dated in March 2006, August 2007, December 2008, November 2009, December 2011, February 2012, August 2012, November 2012, December 2012, and January 2013, as well as the most recent Board remand in April 2013 satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.   The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims.  The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121. 

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). 

In this case, the Veteran has been continuously represented by an experienced representative and has submitted argument in support of his claims.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records (STRs), Social Security Administration disability records, and current VA medical records are in the file.  All records identified by the Veteran as relating to the claims have been obtained, to the extent possible.  The Board finds that the record contains sufficient evidence to make a decision on the claims. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i).  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The threshold for determining a possibility of a nexus to service is a low one.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board finds that the opinions provided in the Veteran's March 2012 examinations, with addendum opinions in April 2013, provide an adequate basis on which to decide these claims.

The Board also notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2012), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing.  Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises.  It also includes 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 is 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).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997).  See also Bostain v. West, 11 Vet. App. 124, 127 (1998).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

      Low Back

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  If no examination is conducted at entry, however, this presumption of soundness does not apply.  Smith v. Shinseki, 24 Vet. App. 40 (2010); Crowe v. Brown, 7 Vet. App. 238, 245 (1994).  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306  (2012).

At the Veteran's entry onto his initial period of active duty service, a May 1974 examination revealed no complaints of current or historical back pain, and there were no clinical findings made indicating any back problems.  The spine was noted to be normal on physical examination.  STRs during this first active duty period show no treatment or complaints related to the back, and the December 1974 examination for release from active duty was negative of subjective or objective reports of back problems.

Private medical records then demonstrate that prior to the Veteran's re-entry onto active duty in June 1979, he sustained a low back injury at work when he slipped and fell at work with an auto manufacturer.  The Veteran has reported this repeatedly and records show that he in fact pursued a Workmen's Compensation claim as a result.  At a March 1979 psychiatric evaluation, the reviewer noted the Veteran's reports of continued back pain that, in connection with mental health problems prevented him from returning to work.  VA records show that in April 1979, he sought treatment for low back pain; x-rays were normal, and paraspinous spasm was diagnosed.

The Veteran then returned to active duty.  No examination took place upon the Veteran's entry onto active duty in June 1979, however, and he may not therefore be presumed sound.  Given the evidence of injury and treatment between December 1974 and June 1979, when the Veteran was not on any active military status, the Board finds that a low back condition pre-existed the Veteran's second period of service.

During that second period of service, the Veteran was treated in November 1979 for complaints of low back pain, which he reported had been present for two months.  The examiner observed that range of motion was "very limited," but also noted that the Veteran was not cooperative with examination and would not respond to questions.  Aspirin and a hot pack were applied.  Records show no further complaints or follow-up treatment.  In connection with a routine examination, the Veteran reported subjective recurrent low back pain in November 1979, and indicated he had received Worker's Compensation in the past.  No clinical findings were made regarding objective low back problems at that time, and in December 1979, the physical examination reported that the spine was physically normal; the Veteran was referred to a Medical Evaluation Board for psychiatric issues.  Subsequent STRs, through February 1980, reveal no back-related complaints, although he Veteran indicated that on his return home he intended to re-raise and pursue a Worker's Compensation claim.

Following his final release from service, records reveal continued treatment for mental health problems.  Social Security records show that the Veteran began reporting problems with his back dating from an injury in the 1970's.  The Veteran also indicated that he had sustained a back injury at work in 1985, which lead to a Worker's Compensation claim.  At a December 1993 VA evaluation, the Veteran reported that he had been having back and related bladder problems for several months, which he related to a 1970 injury that left him totally disabled.  Spinal stenosis and degenerative joint disease were diagnosed.  Private records from June 1994 indicate a recent back injury causing sharp pain.  Records from 2006 and 2007 continued to show ongoing treatment for lumbosacral spine pain with radiculopathy.  A November 2006 x-ray was normal.

The Veteran received a VA examination for his spine in July 2009.  At that time, the Veteran reported to the examiner that he was in the service continuously from 1974 to 1980.  The Veteran reported back pain on and off for 30 years, but did not note his pre service back injury.  After examination, the Veteran was diagnosed with degenerative joint disc disease of the spine.  The examiner opined that this condition was at least as likely as not related to his active period of service. The Board has considered this opinion, but finds it of minimal probative value because the examiner was not informed of the Veteran's pre service back injury, was misinformed as to the Veteran's dates of service, and was also not informed of the Veteran's post service back injuries such as the one in 1985 which led to his worker's compensation claim.

At the Veteran's hearing in March 2011, he indicated that he believed his current back condition was due to a fall in service in 1974, but that he did not have it treated until 1975 or 1976.  He stated that a physician told him at that time that he had a damaged vertebrae.  He stated that at the time of injury, he did report his back pain to the medics, but he did not think they made a note of his injury.

The Veteran received a VA examination for his back in March 2012.  At that time, the Veteran was diagnosed with lumbar degenerative disc disease, lumbar spine arthritis, and mild left lumbar radiculopathy.  Testing showing some limitation of motion, as well as pain and fatigability of the spine, and radiculopathy.  After a thorough examination and a thorough review of the Veteran's claim file, the examiner reported that in his opinion, the claimed condition which existed prior to service, was not aggravated beyond its natural progression in service.  The examiner indicated that this opinion was based on a review of the Veteran's claims file which showed no aggravation, as well as the Veteran's statements during his examination that day, in which he indicated that he felt his greatest disability was the residuals of his previous strokes and not his underlying back condition.  There are also no immediate post military records which demonstrated aggravation by his second period of military service.

An addendum opinion regarding the Veteran's back disability was obtained in April 2013.  At that time, the Veteran's claims file was reviewed.  The examiner indicated that his opinion in Match 2012 regarding the Veteran's low back examination and disability still stood.  Specifically, he indicated that the Veteran's current low back condition is related to degenerative disease of the lumbar spine with concomitant residuals from a CVA/stroke that occurred in 2009, which resulted in partial hemiparesis of the left leg.  The CVA is not related to the documented low back injury or complaint in 1979 in pathology or etiology.  This is a completely separate event with no connection to the low back.

The Veteran's current low back with radiculopathy condition is related to a degenerative condition with a genetic predisposition and is not traumatic in nature.  The documented low back condition in service is a separate event without residuals.  His current back condition is not a natural progression of the injury documented in 1979 and his current degenerative back condition was not aggravated by his military service or obligations but instead is a natural aging disease phenomenon which is directed by his genetic predisposition.  Therefore, the Veteran's low back and left lower extremity condition is less likely as not caused by or a result of complaint of low back problems in November 1979.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306  (2012).  "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence").  It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable."  See Cotant v. West, 17 Vet. App. 116, 131   (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). 

However, until an increase in disability is shown by the claimant to have occurred in service, the presumption of aggravation does not attach and, thus, does not shift the burden of rebuttal to the Secretary.  See Horn v. Shinseki, 25 Vet. App. 231, 235 n. 6 (2011) (noting that, under section 1153, the evidence must establish that a condition noted upon entry worsened in service before the burden shifts to the Secretary to show, by clear and unmistakable evidence, that the worsening was due to the natural progress of the disease); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004).

The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345  (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012).  Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306  -07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 

Here, the Board concludes that no worsening or increase in the pre-existing low back condition is shown in service.  Pre-service records from April 1979 and STRs from November 1979 indicate substantially similar ongoing complaints of back pain, related to the musculature of the spine.  If anything, STRs show improvement, as spasm was present prior to service, but no spasm was noted in service, and repeated physical examinations of the spine were normal, even when subjective complaints of back pain were investigated.  Moreover, a VA examiner specified in April 2013 that the in-service treatment and complaints represented an acute occurrence, and healed "without residuals."  Accordingly, the presumption of aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.304 does not attach.

The veteran may still establish entitlement to compensation benefits by showing a nexus between service and current disability is at least as likely as not; the lack of application of the presumption is not negative evidence.  However, the evidence of record does not establish any relationship between current disability and service.

The Veteran has alleged that he sustained an initial slip and fall injury during his first period of service.  There are some private treatment records indicating a fall in September 1971, and acute lumbar myositis was diagnosed in April 1974, both prior to entry onto active duty.  Neither condition resulted in a chronic disability, as one is specifically termed acute, and neither resulted in any findings or complaints at the May 1974 entry examination.  As to the alleged in-service fall, as the Board has twice previously found, such event did not occur as described by the Veteran.  While he is competent to report events he observes and experiences, such as a fall, he is not in this case a reliable historian.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  STRs are silent for any injury, complaint, or treatment, and the Veteran has offered repeatedly inconsistent reports regarding a variety of events.  Importantly, at separation from his first period of service, he specifically denied any historical or current back problems, and physical examination was normal.

Turning to the events of the second period of service, the Board notes that the July 2009 VA examiner did render a positive nexus opinion, relating the diagnosed degenerative disease to service.  However, the examiner was not fully informed of the relevant facts.  He was told the Veteran was on continuous active duty from 1974 to 1980, and appears unaware of the multitude of non-service back injuries before and after the periods of service, despite reporting review of the claims file.  As is noted above, little probative weight may be ascribed to this opinion because of the faulty basis for the opinion.  See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The March 2012 and April 2103 VA medical opinion, in contrast, considered an accurate history and fact pattern, and provided a detailed rationale for the negative nexus opinions expressed.  He determined that given the negative findings on separation, and the acute nature of the "separate event without residuals" in November 1979, there was no causal connection between service and current disability.  Moreover, the examiner felt that, based on current physical findings, the degenerative condition was entirely consistent with age in this individual, given a genetic predisposition to degeneration.  Further, current findings were not consistent with past trauma.  This well reasoned and explained opinion is given great weight.

The Veteran himself has opined that his current problems are related to service.  However, in this case he is not competent to render such an opinion.  He is not reporting an observed cause and effect relationship, which he would be able to describe and report.  Layno v. Brown, 6 Vet. App. 465 (1994).  Instead, he is applying reasoning and analysis to facts to reach a conclusion; here, the question is simply too complex for a lay person.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Further, the Veteran has demonstrated that he is not a reliable historian; he has reported numerous back injuries over the years, and has attributed his symptoms to each in turn to maximize his benefit, as with Worker's Compensation.  He lacks the training and knowledge to distinguish between various injuries and factors when discussing current problems.  His opinion has no probative weight.

The weight of the evidence is against the claim; there is no doubt to be resolved.  The Veteran had a pre-existing low back condition which was not aggravated by service, nor is there a currently diagnosed separate condition which may be found to be caused or aggravated by service.  Service connection for a low back disability is not warranted.

      Acquired Psychiatric Disorder

As with the low back, STRs show no mental health problems during the Veteran's first period of active military service.  Between periods of service, however, the Veteran was treated for psychiatric complaints, including a hospitalization for depression and suicide attempts in January 1978.  At that time, he was admitted with a provisional diagnosis of "toxic psychosis, rule out schizophrenia."  At discharge, the diagnosis was simply toxic psychosis due to overdose.  In March 1979, in connection with Worker's Compensation litigation, a psychiatrist noted "some type of psychosis" was present; no etiology was identified, but drug use was reported prominently.  Physical problems were aggravating the Veteran as well. 

As no entry examination was given in June 1979, the presumption of soundness does not apply, and the Board therefore finds that a psychiatric disability arose prior to the second period of active duty service.  During that period of service, the Veteran was diagnosed with paranoid schizophrenia, which existed prior to service; his separation was in fact based on this disability.  No mention of his drug history was made at that time, however.  The same is true for hospitalization through his eventual discharge; the Veteran was noted to be improving, but there is no indication of current or past drug and alcohol use.

Following his separation, private and VA records demonstrate repeated hospitalizations for paranoid schizophrenia; drug and alcohol use were noted in connection with admission.  He stopped taking prescribe medications, and turned to street drugs (marijuana) and alcohol.  

A December 1983 psychiatric evaluation conducted for Social Security purposes noted that the Veteran gave a history of being mentally sick since 1974 with numerous psychiatric hospitalizations.  He reported seeing things and hearing voices.  He admitted to drinking excessively for many years and that he would get intoxicated whenever he had money to do so.  The Veteran was diagnosed at that time with schizophrenia, undifferentiated type, and alcohol abuse.

A February 1989 private discharge summary indicated that the Veteran was hospitalized for 8 days with diagnoses of chronic undifferentiated schizophrenia, and drug abuse.

A September 1995 psychiatric evaluation noted that the Veteran reported his chief problems were drinking alcohol, using drugs, and hearing voices of evil spirits. After a review of the Veteran's records and a thorough examination, the Veteran was diagnosed with a substance induced psychotic disorder, including alcohol dependence, opioid dependence, and cocaine dependence.

A September 1995 VA record diagnosed the Veteran with depression.

A private psychiatric assessment dated December 1998 diagnosed the Veteran with schizophrenia, undifferentiated type, with poly drug abuse by history.  The examiner noted that the Veteran's usual pattern was noncompliance with medication, getting back into binges of drinking and substance abuse, resulting in decompensations and hospitalization.

The Veteran received a psychiatric VA examination in September 2006.  At that time, the Veteran stated he had no medical problems prior to entering service.  The examination noted the Veteran's report of developing mental illness while in service.  At that time, the Veteran specifically reported that he was discharge from service in May 1980 for psychiatric reasons.  He noted that his brother also has a schizophrenia condition.  The Veteran reported heavy drug use starting at age 16, as well as heavy alcohol consumption.  He was noted to have a long history of psychiatric hospitalizations starting in 1972 or 1973.

After a thorough examination, the Veteran was diagnosed with paranoid schizophrenia, chronic, in partial remission, and polysubstance abuse, in remission.  After examining the Veteran and reviewing the evidence of record, the examiner indicated that it was his opinion that the Veteran's schizophrenia was less likely as not caused by his military service.  The examiner felt that the evidence of record showed that the Veteran's condition existed prior to service, without service aggravation.

At the Veteran's hearing in March 2011, the Veteran reported that he first had a nervous breakdown during his reserve service, due to numerous personal issues, and was diagnosed with schizophrenic paranoia while on active duty.  The Veteran reported that he was treated psychiatrically before service, primarily for nerves and anxiety.

The Veteran received a VA psychiatric examination in March 2012.  At that time, after a review of the Veteran's claims file and a thorough examination, the examiner diagnosed the Veteran with alcohol dependence and a mood disorder.  The examiner indicated that in his opinion the Veteran did not have a mental disorder related to service.  In support of this opinion, the examiner stated that the Veteran was diagnosed with schizophrenia while in service.  However, based on a review of the medical records and history provided by the Veteran, there is no evidence of a primary psychiatric disorder.  His primary diagnosis is alcohol dependence/substance abuse which most likely induced mood or psychotic symptoms in the past.

A private record dated October 2012 noted that the Veteran carried a diagnosis of schizophrenia, but it does not appear the Veteran had an actual psychiatric examination at that time.

An addendum opinion regarding the Veteran's claimed psychiatric disability was obtained in April 2013.  At that time, the Veteran's claims file was reviewed.  The physician noted that, according to a psychiatric evaluation done at the VAMC in April 1998, the Veteran had his first psychiatric hospitalization in 1974.  According to a March 2012 VA examination, it was noted that the Veteran was diagnosed with schizophrenia, paranoid type in 1973, according to a claims file note dated in 1979.  This doctor opined that, based on the history provided by the Veteran, that his alcohol abuse was inducing psychotic symptoms of hallucinations.  There is no significant clinical evidence of the presence of a primary Axis I diagnosis of schizophrenia.  The examiner further stated that, based on a review of the Veteran's medical records, his diagnosis of schizophrenia is not valid, and any psychotic symptoms of auditory or visual hallucinations are as least as likely as not substance abuse related.  The Veteran reported drinking heavily in service, and claims file notes indicated that Veteran reported that he started drinking at age 7, and that his drinking became heavy when he joined the military.  He reported drinking on a daily basis from 1974 until he was discharged in 1980.  The examiner specifically noted a treatment note dated November 2003 which indicated that the Veteran reported hallucinations mostly after he had been drinking.  The physician indicated that this was a clear sign that the Veteran had chronic alcohol abuse which would spontaneously clear after discontinuation of alcohol.  The physician noted that the Veteran's medical records show a long history of alcohol abuse.  In support of this the physician referred to an April 1998 statement which indicated that the Veteran reported drinking around 5 to 6 40 ounce beers a day and two to three half pints of hard liquor per day for the last 30 days, every day.  The doctor also noted a pattern of increased symptoms requiring hospitalization, with quick recovery when removed from the use of drugs and alcohol.

Applicable regulations provide that no compensation shall be paid if a disability resulting from injury or disease in service is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs.  38 U.S.C.A. §§ 105, 1110.  Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in 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. 

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.  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). 

An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed.  Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects.  38 C.F.R. § 3.301(d). 

"Willful misconduct" means an act involving conscious wrongdoing or known prohibited action.  A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs.  (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.  (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.  (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death.  38 C.F.R. § 3.1(n). 

Taking into account all relevant evidence, the Board finds that service connection for a psychiatric disability is not warranted.  The preponderance of the evidence of record shows that this condition is caused by the abuse of alcohol and drugs, and as such, the Board finds it is due to willful misconduct, and therefore service connection for this condition is barred by law.  The Board finds particularly probative the opinions contained in the Veteran's most recent VA psychiatric examination and addendum opinion, which clearly indicate that the Veteran's psychiatric condition is caused by the abuse of alcohol and drugs.  The Board finds this recent examination with addendum opinion most probative because it is clearly based on a thorough examination of the Veteran and a thorough review of his claims file, and is supported by adequate reasons and bases.  

The Board has considered whether there is a co-morbid psychiatric disability masked by the substance abuse related disorder, and has weighed the possibility of service connection for such.  However, the Board finds that the evidence of record clearly shows that any acquired psychiatric condition, apart from drug induced schizophrenia, pre existed in service, and was not aggravated in service beyond its normal progression.  The evidence of record, including the Veteran's own testimony, indicates that he was seen for psychiatric treatment well before his entry into service.  The Veteran's first period of service shows no treatment for any psychiatric disability, therefore, there is no question that his pre existing condition was note aggravated during that time.  In the Veteran's second period of service, he was treated for a diagnosis of paranoid schizophrenia; however, the evidence of record makes clear that the Veteran has undergone repeated cycles of being hospitalized for this condition, being discharged in better condition, and then relapsing into drugs and alcohol causing further hospitalization.  This cyclical nature of the Veteran's claimed psychiatric disability was specifically noted in the above cited December 1998 psychiatric assessment.  The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability.  See Davis v. Principi, 276 F.3d 1341, 1345  (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012).  Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens.  See Jensen v. Brown, 4 Vet. App. 304, 306  -07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).  As his in-service assessment is substantially similar to pre-service assessments, and has remained fairly constant throughout the life of the claim, no increase in severity of the condition in service is shown, and the presumption of aggravation does not attach.  Further, this absence of increase in service and the cyclical constancy of the condition since prior to service, as discussed repeatedly by doctors, warrants a finding that there was no actual aggravation of any pre-existing co-morbid acquired psychiatric condition.

The weight of the evidence is against the claim; there is no doubt to be resolved. Service connection for an acquired psychiatric disorder is not warranted.


ORDER

Entitlement to service connection for a low back disability is denied.

Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, is denied.




____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs