Citation Nr: 1332783 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-25 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depression, and bipolar disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to March 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in December 2011, and a transcript of the hearing has been associated with the claims file. The Veteran's claim was most recently remanded in August 2012. The requested action has been performed and the case has since been returned to the Board for adjudication. FINDING OF FACT There is clear and unmistakable evidence demonstrating that the Veteran's acquired psychiatric disorder existed prior to his entry into active military service; however, the evidence does not clearly and unmistakably show that his acquired psychiatric disorder was not aggravated by military service. CONCLUSION OF LAW The Veteran's pre-existing acquired psychiatric disorder was aggravated during his military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2013). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria 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 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Moreover, every 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 the 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. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, 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 (West 2002); 38 C.F.R. § 3.306(a) (2013). 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 preservice 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 a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Given these provisions, the standard of proving a claim based on "aggravation" changes depending on whether the pre-existing disability was noted on the entrance examination report, or whether it was not but the presumption of soundness is nevertheless rebutted. Factual Background and Analysis The Veteran contends that his currently diagnosed acquired psychiatric disorder either had its onset during service or was aggravated during his period of active duty. Upon induction, the Veteran reported a history of nervous trouble, and had off and on treatment for psychiatric symptoms prior to enlistment. No psychiatric abnormality was noted on the induction examination report. The Veteran's service treatment records (STRs) show no treatment for any psychiatric complaints. The separation examination in January 1972 was negative for any psychiatric abnormality. In July 1972, the Veteran was hospitalized for an exacerbation of his psychiatric symptoms resulting in a suicide attempt. He recalled an increase in the severity of his psychiatric symptoms during and following his discharge from service. In August 1972, the Veteran was afforded a VA psychiatric examination, during which he reporting having a "nervous condition" that was aggravated by his military service. During the examination, the Veteran reported that prior to service he had been hospitalized at least three times for psychiatric difficulties. He endorsed undergoing outpatient treatment until just before going into service. The examiner indicated that "[e]vidently he adjusted fairly well while in the service as he at least did not attract any attention medically and served his entire two years of duty getting a six months' early out." The examiner noted that the Veteran reported similar symptoms both prior to, during, and following his military service. The Veteran endorsed episodes of anxiety, depression, and indecision, and was hospitalized several weeks ago following a suicide attempt. The examiner diagnosed him as having passive-aggressive personality and chronic depressive neurosis. The examiner did not provide an opinion as to the etiology of the Veteran's psychiatric disorders. In a December 1972 VA treatment record, the Veteran was diagnosed as having schizophrenic reaction, chronic, undifferentiated type. This diagnosis was made in conjunction with his hospitalization and suicide attempt. Following service, the Veteran has had varying psychiatric diagnoses, including, chronic schizophrenia, bipolar disorder, chronic depression, and chronic anxiety. He also has a history of traumatic brain injury (TBI) following non-service related motor vehicle accidents. There is some indication from the treating professionals that some of his psychiatric symptoms may also be a result of the TBI. A review of deposition transcripts as well as other submissions by the Veteran clearly notes that he was first treated for psychiatric problems prior to induction into the military. Of record is a September 2010 statement from one of the Veteran's childhood friends who noticed a marked change in the Veteran's psychological behavior upon discharge from the Army. He stated that the Veteran "became less grounded in the real world." The Veteran underwent a private psychiatric evaluation in February 2011, during which the psychiatrist indicated that the Veteran was an unreliable historian and his provided history was internally inconsistent. The psychiatrist reviewed the Veteran's claims file, including documents submitted by the Veteran's friends, families, and interested parties. The psychiatrist diagnosed the Veteran as having chronic schizophrenia, undifferentiated type. He determined that the Veteran had psychiatric symptoms prior to his military service, but that following service his symptoms had worsened. He opined that the Veteran's current schizophrenia is directly related to his active duty as it arose between his enlistment and his discharge. Additionally, the psychiatrist noted the Veteran's reports that he continued to experience psychological symptoms from discharge to the present with continuous worsening of his schizophrenia. The psychiatrist identified the post-service history of closed head injuries, but found the Veteran's psychiatric symptoms are most analogous to those for schizophrenia. In December 2011, the Veteran sought out a private record review and opinion related to his claimed psychiatric disorder. The private psychologist diagnosed the Veteran as having chronic schizophrenia, undifferentiated type. He noted the Veteran had a preexisting psychiatric disorder noted just prior to induction into the military, but he was found fit for service. The psychologist opined that the Veteran's preexisting mental illness had worsened beyond its natural progression within one year of discharge from service. In other words, the psychologist opined that the Veteran's psychiatric symptoms were beyond the normal course or progression of his mental illness as it had been identified prior to induction. He further found that at discharge, the Veteran had a deterioration of his mental health that was concurrent with his military service and beyond the natural progression of his mental illness. In reaching this conclusion, the psychologist considered the Veteran's reported history and the available records. In October 2012, the Veteran's treating psychiatrist opined, albeit in a confusing manner, that it is as likely as not that the psychosis diagnosis during the Veteran's first, post-service year was the start of the full-disabling psychotic process of his schizoaffective disorder. The Veteran was afforded a VA psychiatric examination in December 2012, during which he was diagnosed was having bipolar disorder. After review of the Veteran's claims file and any pertinent electronic medical evidence, the examiner opined that the Veteran's bipolar disorder is not caused or aggravated by his military service. The examiner indicated that there was no objective evidence of any psychosis during this examination. The examiner indicated that although there is some history showing a diagnosis of schizophrenia, it could have been in error due to many shared symptoms between it and bipolar disorder. The examiner clearly stated that the Veteran's mental illness had its onset prior to service and was not caused or aggravated by his military service. The examiner did not, however, provide any clear rationale for this opinion. In June 2013, the Veteran's VA treating psychiatrist indicated that the Veteran has schizoaffective disorder, bipolar type. The treating professional indicated that although there are times when the Veteran has only been diagnosed as having bipolar disorder, it was usually during a period when his psychotic symptoms were better controlled. He indicated that the Veteran's history of psychosis has been well documented over the years by both private and VA professionals-including as early has his first, post-service year. He indicated that the Veteran's psychiatric disorder was unlikely caused by his military service, but he was shown to have schizophrenia/schizoaffective disorder within the first post-service year. He opined that it is more likely than not that the psychotic illness the Veteran suffered within his first post-service year is the same, gradually worsening illness for which he is current undergoing treatment (schizoaffective disorder). The treating professional opined that the Veteran was not a malingerer, nor was he trying to manipulate the system. Although an on and off history of nervous problems was reported at entry, given the negative clinical findings, the Board concludes that a psychiatric disorder was not "noted" at entry for the purposes of 38 U.S.C.A. §§ 1111 and 1153. Thus, the Veteran is presumed sound unless there is clear and unmistakable evidence of a preexisting disability. The Board notes that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran's self-report that he had previously suffered from "depression or excessive worry" prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C.A § 1111); see also Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, however, there is both lay and medical evidence of a psychiatric disorder prior to military service. The Board, therefore, finds that there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder preexisted service. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). As set forth in VAOPGCPREC 3-2003, the Board must also determine if there is clear and unmistakable evidence that the disorder was not aggravated during service. Based on the evidence discussed below, the Board concludes that there is not clear and unmistakable evidence that the acquired psychiatric disorder, whether diagnosed as bipolar disorder or schizoaffective disorder, was not aggravated during his service. The Veteran was noted to have a history of nervous problems prior to induction. No residuals of any psychiatric disorder were found at that time and he was found fit for duty. During service, he did not undergo any treatment for complaints of psychiatric problems, nor was he shown to have any during his separation physical examination. However, within mere months following separation, the Veteran was hospitalized for an exacerbation of psychiatric symptoms, which included a suicide attempt. The Board finds that the competent and probative evidence of record is in relative equipoise as to whether Veteran's psychiatric symptoms were aggravated during service. Importantly, there are competing opinions as to whether the Veteran's psychiatric disorder was chronically worsened during his period of active duty or soon thereafter. These competing opinions were provided by competent professionals who either personally interviewed the Veteran or reviewed the records, or both. As such, the Board has no reason to doubt the credibility of these medical professionals. Given that these opinions were provided by both competent and credible medical professionals, the Board assigns these opinions equal weight. Moreover, the evidence shows that in a few months following discharge, the Veteran was hospitalized for a severe psychiatric episode, and his childhood friend recalled a noticeable difference in the Veteran's mental health following discharge from service. For the reasons stated above, the Board concludes that there is not clear and unmistakable evidence that the Veteran's psychiatric disorder, however characterized, was not aggravated by his military service. Therefore, the Board concludes service connection for an acquired psychiatric disorder is warranted. ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs