Citation Nr: 1331078 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 08-24 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from December 1997 to November 1999. The record reflects that he had additional service in the National Guard from May to August 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran provided testimony at a hearing before a decision review office (DRO) at the RO in January 2011. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. FINDING OF FACT The Veteran has paranoid schizophrenia that pre-existed service and that was aggravated by his National Guard service. CONCLUSION OF LAW The criteria for service connection for aggravation of a paranoid schizophrenia disability have been met. 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the Veterans Claims Assistance Act of 2000 (VCAA) would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). In December 2005 and February 2006, the Veteran stated that his psychiatric condition was aggravated by his period of active duty for training in 2005. The Board finds that the Veteran did not develop a psychiatric disorder during his original period of active duty, or within a year of discharge from his original period of active duty. Although a November 2006 VA examiner opined that the Veteran's psychiatric disability was related to the Veteran's first period of service, that examiner did not have the Veteran's claims file to review and he based his opinion on a history provided by the Veteran which was contrary to the Veteran's December 2005 statement, and contrary to the medical evidence in the claims file. Consequently the Board finds that the November 2006 VA opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The service personnel records show that the Veteran was provided a psychiatric examination in August 1999 as part of a process for discharge due to misconduct. The August 1999 examiner found that there was no evidence of any psychiatric condition which would warrant disposition through medical channels. The Board also notes that a January 2013 VA examiner reviewed the Veteran's claims file and opined that the Veteran did not develop schizophrenia during his original period of active duty or within a year of discharge from active duty. Accordingly, the Veteran is not entitled to service connection for an acquired psychiatric disorder based on the Veteran's first period of service, from December 1997 to November 1999. See 38 C.F.R. § 3.303, 3.307, 3.309 (2012). The Board observes that National Guard records confirm that the Veteran entered the National Guard in May 2005, and that he was discharged from this service in August 2005. A June 2005 National Guard enlistment examination reflects his psychiatric condition was clinically evaluated as normal. The records on file reflect that the Veteran was ordered to a period of annual training in the National Guard from July 23 to August 6, 2005. Records from a military hospital show he was hospitalized for four days from July to August 2005, during the period these orders reflect he was scheduled to be on annual training. History of present illness was that he had gross disorganization of thought and speech; delusions that people were trying to kill him; that he was almost mute during original interview and apparently paranoid; and that his family stated he had had episodes like this in the past when he was more stressed. Assessment was psychosis not otherwise specified. He was treated at Pineland Mental Health Services on August 4, 2005, and the reason for referral to Pineland was noted to be follow up for schizophrenia. In view of the foregoing, the Board finds that the Veteran was treated for psychiatric problems during a period of ACDUTRA. Active service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). According to 38 U.S.C.A. § 1153, 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 there is a specific finding that the increase in disability is due to the natural progress of the disease." Certain evidentiary presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases, which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. §§ 101 , 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA 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 ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). A June 2005 National Guard enlistment examination reflects that the Veteran's psychiatric condition was clinically evaluated as normal. On a concurrent Report of Medical History he checked boxes to indicate he had not experienced nervous trouble of any sort. Since he is a Veteran by virtue of his active duty, the presumption of soundness applies because he was "examined, accepted, and enrolled for service" prior to entering the period of ACDUTRA and that examination revealed no "defects, infirmities, or disorders." See Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). The Board also finds that there is clear and unmistakable evidence that the Veteran's psychiatric disorder pre-existed service. Such is shown by private medical records from the Georgia Regional Hospital. These records show inpatient treatment for psychiatric disability in July 2001 and June 2003. The June 2003 discharge summary noted that it was the Veteran's third admission to the hospital. The discharge diagnosis was paranoid type schizophrenia and the Veteran was prescribed Zyprexa and Cogentin for treatment of his psychiatric disorder. Furthermore, in March 2013 a VA examiner opined that the Veteran's paranoid type schizophrenia clearly and unmistakably existed prior to the Veteran's (National Guard) service. Accordingly, the Board finds that the Veteran's psychiatric disorder clearly and unmistakably pre-existed the Veteran's National Guard service. To rebut the presumption of soundness, clear and unmistakable evidence is required that shows (1) there was no increase in disability during service, or (2) that any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). However, the evidence in this regard is not clear and unmistakable. The Veteran was hospitalized in May and June of 2003 for schizophrenia. On discharge, he was noted to be much improved and his assigned global assessment of functioning score was 71. When examined for service with the National Guard in June 2005, he was not found to have any psychiatric deficit. However, he was hospitalized for schizophrenia during the period of ACDUTRA. Moreover, the Social Security Administration (SSA) records reflect that SSA determined that the Veteran was disabled due to paranoid schizophrenia, and other psychotic disorders, effective from October 1, 2005. The Veteran has also been examined by VA on several occasions and was assessed as having a GAF score of 25 on examination in November 2006 and a GAF score of 50 on examination in November 2011. Based on this evidence, the Board cannot find that the presumption of soundness is rebutted. Moreover, even if the presumption of soundness were not applicable, service connection would still be warranted as the evidence shows that the Veteran is disabled from a pre-existing psychiatric disorder that was aggravated in the line of duty. At his January 2011 hearing the Veteran testified that he had not been receiving treatment for a psychiatric disability when he enlisted in the National Guard. He further testified that his schizophrenia has been a constant problem since his episode while in the National Guard. He testified that he was ordered to sleep in the sensitive item room where the weapons were kept and that he had a mental breakdown when he woke up. The Veteran's medical history was reviewed by a VA physician in March 2013. This physician opined that the Veteran's pre-existing paranoid type schizophrenia was aggravated beyond its natural progression by the Veteran's service in the National Guard. The physician noted that the Veteran's mental disorder had been quiescent prior to his National Guard service, manifesting during periods of stress. He stated that the Veteran has required ongoing treatment for his mental disorder since at least 2005. Based on this opinion and the GAF scores prior to and after ACDUTRA, service connection is warranted. In summary, the Board finds that service connection for schizophrenia, which symptoms have also been diagnosed as a psychosis, based on aggravation of a pre-existing disability is warranted. 38 C.F.R. § 3.304(b), 3.306. (CONTINUED ON NEXT PAGE) ORDER Service connection for paranoid schizophrenia is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs