Citation Nr: 1340409 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 08-33 909A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for schizophrenia, paranoid type. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Aaron Bill, Associate Counsel INTRODUCTION The appellant served in the Texas National Guard. He had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) from September 1983 to April 1986 and from May 1989 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision. In reviewing this case, the Board has not only reviewed the appellant's physical claims file, but also the file on the "Virtual VA" system to ensure a total review of the evidence. This matter was remanded by the Board in September 2011. As discussed herein, there has been substantial compliance with the Remand directive. FINDING OF FACT Paranoid schizophrenia is not related to any period of ACDUTRA, preexisted periods of ACDUTRA and was not permanently aggravated by such service. CONCLUSION OF LAW An acquired psychiatric disorder, paranoid schizophrenia, was not incurred in or aggravated by a period of ACDUTRA. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the appellant in January 2006, prior to the initial adjudication of the service connection claim. The letter notified the appellant of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the appellant and what information and evidence would be obtained by VA. The appellant was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice requirements of the VCAA apply to all elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case in the January 2006 letter, the appellant was provided with such notice, including the type of evidence necessary to establish a disability rating and effective dates. Based on the foregoing, timely and adequate notice was provided to the appellant prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service treatment records (STRs) have been obtained, as have records of private treatment, a VA examination report and Social Security Administration (SSA) records. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. This claim was remanded by the Board in September 2011 in order to request records from the San Antonio State Hospital beginning in 1979, obtain records from the SSA, verification of the appellant's periods of ACDUTRA and INACDUTRA from the Texas Adjutant General, and obtain an addendum opinion from the VA examiner who conducted the March 2007 VA examination (or other suitable examiner) in an attempt to determine an opinion regarding whether the appellant's current disability was permanently increased beyond the natural progression of his disability or if it was at least as likely as not that it had its onset in service or is otherwise related to service. The appellant was then scheduled for an examination in April 2012, but he failed to report for his scheduled examination. The appellant has not provided any explanation for missing his scheduled examination. VA regulations provide that when an appellant fails to report (without good cause) for a scheduled examination in conjunction with an original compensation claim then the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.654(b). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the appellant's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the appellant's claim. For these reasons, the Board finds that the duties to notify and assist the appellant in the development of this claim have been met, so that no further notice or assistance to the appellant is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection - Laws and Regulations Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Active service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), (d) (2013). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any State, under 32 U.S.C.A §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(c)(3) (2013). Presumptive periods for service connection do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002 & Supp. 2012). Importantly of note, the appellant has not served on active duty. Thus, neither the presumption of soundness nor the presumption of aggravation is applicable to the appellant's case. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Rather, in order to establish aggravation of a pre-existing condition during a period of ACDUTRA, a claimant has the burden of showing both that he experienced a permanent increase in disability during his period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donellan v. Shinseki, 24 Vet. App. 167 (2010). Service Connection - Analysis In this case, the evidence sufficiently establishes that the appellant currently suffers from the claimed disability. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Indeed, the SSA, VA and private records associated with the claims file show an Axis I diagnosis of schizophrenia, paranoid type. As a disease, the claimed disorder may only be service-connected if found to have been incurred in or aggravated by a period of ACDUTRA, not INACDUTRA. Here, the evidence reveals that schizophrenia was first manifested in October 1979, prior to the commencement of a period of ACDUTRA. In the SSA records received, there were numerous treatment records and other indicia of the appellant's paranoid schizophrenia, including a long list of psychiatric treatment in which the appellant claims to have first become disabled due to his psychiatric condition prior to ACDUTRA. In consideration of the foregoing, the Board will next consider whether the record supports a finding that the claimed disability was aggravated by a period of ACDUTRA. Here, the evidence of record does not support a finding that the appellant's paranoid schizophrenia was permanently worsened beyond the natural progression of the disease during a period of ACDUTRA. The list of treatment contained in the SSA records shows a beginning of October 1979 and continuing sporadically between the San Antonio State Hospital and Rusk State Hospital until October 1992. While it is clear that the appellant had undergone psychiatric treatment before entering the National Guard and subsequently has received treatment since separation and currently has a diagnosis of paranoid schizophrenia, the evidence of record does not support a finding that the appellant's disease worsened beyond its natural progression due to any period of ACDUTRA. In addition, the March 2007 VA examination opinion does not support the claim. The March 2007 VA examiner opined: The schizophrenia he now manifests is in all likelihood the same disease process that was in evidence during his period of military service and before he entered the military. Schizophrenia is a life-long disease process. His current disease is a continuation of the same process noted during his period of active duty and will continue for the duration of his lifetime. The severity of his symptoms will wax and wane over time. Now he evidences side effects of chronic administration of anti-psychotic medication, including akathesia and oral-buccal dyskinesia. Additional evidence received, including the appellant's Service Medical Records (SMRs) simply show the mental health treatment he sought during his time in the National Guard, but do not contain any indicia of worsening. These records include mental health records from as early as October 1984 through October 1986, all of which contain a consistent diagnosis of paranoid schizophrenia. Particularly of note is a letter from Dr. M.W. dated August 1987 in which she states that "as these records will detail he does fairly well on medication but when he decompensates he becomes delusional....Based on his past medical history and the natural course of his illness he is a risk to decompensate under stressful conditions." This evidence does not tend to indicate a worsening beyond the disease's natural progression, as the letter from Dr. M.W. would indicate, but shows that the appellant required treatment services for the disease from which he had been suffering since before he entered the National Guard. In sum, since the preponderance of the evidence of record weighs against a finding that the appellant's paranoid schizophrenia was permanently worsened beyond the natural progression of the disease during a period of ACDUTRA, the benefit of the doubt rule is not applicable and service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for schizophrenia, paranoid type is denied. _________________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals