Citation Nr: 1523059 Decision Date: 06/01/15 Archive Date: 06/16/15 DOCKET NO. 10-14 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia, bipolar disorder, and schizoaffective disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Hudson, Counsel INTRODUCTION The Appellant served on active duty from July 16, 1985, to September 13, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a regional office (RO) rating decision of October 2005 that denied the Appellant's claim for service connection for an acquired psychiatric disability. As discussed in the October 2014 remand, the Board has re-characterized the matter on appeal to reflect that it addresses an original claim of service connection, and that de novo adjudication is necessary. In April 2014, the Appellant testified at a hearing before a member of the Board in Washington, DC. A transcript of the hearing is of record. See Virtual VA (VVA) electronic claims file. The appeal was remanded in October 2014. FINDINGS OF FACT 1. An acquired psychiatric disability unequivocally existed prior to the Appellant's entrance onto active duty. 2. No increase in the severity of a pre-existing acquired psychiatric disability was shown during service, nor was an unrelated acquired psychiatric disability present during service. CONCLUSION OF LAW A preexisting acquired psychiatric disability was not aggravated by service, nor was any other acquired psychiatric disability incurred during service. 38 U.S.C.A. §§ 1111, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.306 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In a letter dated in April 2005, before the initial adjudication of the claim, and in various subsequent letters, the RO advised the claimant of the information necessary to substantiate the claim for service connection, and of his and VA's respective obligations for obtaining specified different types of evidence. He was advised of various types of lay, medical, and employment evidence that could substantiate the various elements of his service connection claim. He was also provided with information regarding ratings and effective dates. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA's notice requirements have been satisfied. VA also has a duty to assist the Appellant by making all reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). The Appellant's available service treatment and personnel records have been obtained. Private medical records sufficiently identified by the Appellant have been obtained, as have VA treatment records. At a Board hearing in April 2014, the undersigned fully explained the issue, and discussed the elements required for the claim, including the elements found to be missing in the rating decision on appeal. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The appeal was remanded in October 2014, to attempt to obtain evidence of these missing elements. Service personnel records were obtained. In addition, the Appellant was to be afforded a VA examination addressing his claim. In correspondence sent to his latest address of record on December 12, 2014, he was notified of an examination scheduled for his claim, to be held December 31, 2014. However, he did not report for the examination, or provide any explanation for his failure to report. Accordingly, since good cause has not been shown, the claim must be adjudicated based on the evidence of record. 38 C.F.R. § 3.655(b) (2014). VA complied with the remand instructions to the extent possible given the Appellant's failure to report for the examination. See Dyment v. West, 13 Vet. App. 141 (1999), aff'd Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). No further notice or assistance to the Appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis Initially, the Board notes that a person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980, and any other person (officer as well as enlisted) who enters on active duty after October 16, 1981, and who has not previously completed a continuous period of active duty of at least 24 months or been discharged, or released from active duty under 10 U.S.C. § 1171 (early out), who does not complete a minimum period of active duty is not eligible for any benefit under Title 38, United States Code or under any law administered by VA based on that period of service. 38 C.F.R. § 3.12a. However, the minimum period of active duty requirement does not apply to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; or to the provision of a benefit for or in connection with a service-connected disability, condition, or death. See 38§ C.F.R. § 3.12a(d). Since the purpose of this decision is to determine the service connection question, this regulation is not dispositive. Service connection may be established for chronic disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Generally, the evidence 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 or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The first element, current disability, is shown by medical evidence dated up to 2008 showing the existence of a chronic acquired psychiatric disability, variously diagnosed as schizophrenia, bipolar disorder, and/or schizoaffective disorder. Concerning the second element, in-service incurrence or aggravation, a veteran is presumed to be in sound condition when entering into military service except for conditions noted on the entrance examination or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto, and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003 (2003). Here, as the entrance examination did not indicate the presence of any psychiatric abnormality, the presumption of soundness applies. To rebut this presumption, VA must show by clear and unmistakable evidence both that the injury or disease in question existed prior to service and that it was not aggravated by service. Id.; VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In determining whether there is clear and unmistakable evidence that an injury or disease existed prior to service, the Board must consider the history recorded at the time or examination together with all other material evidence, including medical judgments, accepted medical principles, and the veteran's history of clinical factors. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000). Here, there is medical evidence of the existence of an acquired psychiatric disability prior to service, and the Appellant acknowledges that he had an acquired psychiatric disability prior to service. In particular, he was hospitalized in a private hospital in June 1984 for treatment of schizophrenia, chronic undifferentiated, with acute exacerbation. He had been brought by his counselor for confused behavior. He was noted to be attempting to attend college, but had been struggling. He expressed paranoid ideation and was disorganized in his behavior. In the emergency room, his behavior was psychotic and he was admitted for further evaluation and treatment. He had been hospitalized in the past for paranoic schizophrenia. On mental examination, his speech showed some paucity in content and production. His affect was anxious, and his mood as frightened There was a question of response to internal stimuli. His thought process was goal directed but cut. Insight was nil, and judgment was impaired. During the hospitalization, he was begun on Haldol and Cogentin,. He shows striking minimization of symptoms. He never really engaged with the staff, but his affective symptoms decreased substantially over the first two days of admission. He cooperated throughout the hospitalization, but was guarded in a superficially pleasant manner. In May 1985, he was seen with auditory hallucinations, and it was noted that he had not been compliant with his medication. He was prescribed Haldol and Cogentin. He was again seen on June 12, 1985, at which time he was noted to have schizophrenia, and to be taking Cogentin and Haldol. At that time, however, he was treated for epididymitis. The Board finds that an acquired psychiatric disability clearly and unmistakably existed prior to service. The Appellant is shown to have had an extensive history of treatment for schizophrenia within a year of his entrance into active duty. He does not argue the contrary. He was taking anti-psychotic medications for schizophrenia within a month prior to entry. The fact that the Appellant made no mention of this treatment history at service enlistment even suggests that he was consciously hiding the psychiatric illness. In any event, as an acquired psychiatric disability clearly and unmistakably existed prior to service, it must be determined whether the disability increased in severity during the Appellant's brief period of active duty from July 16, to September 13, 1985. Service treatment records do not show any psychiatric disorder during service. Service personnel record include "performance remarks," which unfortunately are only partially legible. To the extent legible, they document performance issues beginning as early as August 4, 1985, approximately 3 weeks after the Appellant entered onto active duty. After that, there were numerous performance and conduct problems noted. On August 12, 1985, he did not get up until 2 hours after reveille. He complained of not being able to seek medical treatment for a cold, but he had been given at medical slip. Later that day, he said he wanted to quit the Navy because he did not get along with some of the recruits and also he felt he was not living up to Navy standards. On August 23, 1985, it was noted that he had a very poor attitude, and said he wanted out of the Navy. He seemed to be having a hard time adjusting to military training. The following day, he refused a direct order and was apprehended by security. He continued to have problems to the point of quitting his post on watch. He was discharged in September 13, 1985, with an uncharacterized entry level separation, due to entry level performance/conduct. The file does not include a separation examination, and no specific psychiatric findings were noted. The Appellant was hospitalized two months after service, from November 13, 1985, to December 2, 1985, in a private hospital, with a diagnosis of chronic paranoid schizophrenia, acute exacerbation. It was noted that he had presented complaining that he had stopped taking his medication, had become anxious with staying at home, stopped communicating with people, and stayed mostly in bed trying to get away from voices he had heard and people who were after him. Medication did not immediately clear his symptoms, and he was hospitalized. Thought processes were remarkable for looseness of association and negative flight of ideas. He admitted to hallucinations. His past psychiatric history was positive for an acute psychotic episode with paranoid ideation three years earlier. Notably, no reference to his military service was made, in particular as an aggravating event. He was suffering an exacerbation, but had stopped taking his medications. The Appellant was again hospitalized in October 1986. At that time, a history of paranoid schizophrenia since 1981 was noted. He had stopped taking his medications over the summer. He was hospitalized from March to April 1988; at that time, he was diagnosed as having a schizoaffective disorder. In October 1998, a history of multiple hospitalizations following a psychotic break at the age of 20 was noted. He had not had any hospitalizations for the last 10 years. Subsequent records, dated from 1999 to 2008, from various hospitals and outpatient clinics in Philadelphia and Baltimore document the Appellant's continued struggles with psychiatric problems. He was variously diagnosed during this period with paranoid schizophrenia, bipolar disorder, including with psychotic features, and schizoaffective disorder. An extensive history obtained at Hahnemann University Hospital during a hospitalization from November to December 2003 noted a long history of mental illness, with his first psychotic break in about 1981, when he was 20 years old. It was noted that he was probably high functioning when stable. Notably, the history obtained on this and other occasions did not include his military service. An exception is contained in an August 2004 Sheppard Pratt psychiatric admission note, in which, as history, the Appellant noted that he had been in the military for two months but alleged that he was poisoned by Paris green or other agents; the examiner stated that he suspected a psychiatric discharge but had no data. On November 7, 2005, O. Davis, M.D., wrote that the Appellant had been a patient of his since October 27, 2005. He reported that he was treating the Appellant for schizoaffective disorder, and he was compliant with his therapy and medication visits. Dr. Davis wrote that the Appellant's "condition had worsened since 1985 when he first joined the military." He said that the evidence was on the attached list of multiple hospitalization from 1999 to 2005. The Appellant claimed that his military service worsened his pre-existing condition, and that the worsening of his condition is evidence of this. The "attached list" was a copy of page 2 of the VA rating decision dated in October 2005, which listed the medical evidence considered by the RO in that decision. At his Board hearing before the undersigned in April 2014, the Appellant stated that the military made his condition worse. He also contends that he had schizophrenia prior to service, and that the military accepted him nonetheless, and, therefore, the military should take responsibility for the condition. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Consideration has been given to the Appellant's personal assertion that his acquired psychiatric disability worsened during service. This is not supported by the contemporaneous evidence. No psychotic symptoms were noted in service. More importantly, when hospitalized two months after service, the Appellant did not mention his recent military service at all, let alone as a factor in his exacerbation at that time. Instead, the only precipitating factor noted at that time was that he had stopped taking his medication. The Board does not find it credible that had he felt that his recent military service affected his condition, he would have failed to mention it when hospitalized for psychiatric treatment 2 months after his military discharge. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed.Cir.2013) (noting the general common law evidentiary principle that "[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur" (emphasis omitted)). Similarly, for many years thereafter, the medical records pertaining to his psychiatric condition show that the Appellant failed to report his military service as a factor in the existence or severity of his mental condition. When military service was mentioned in August 2004, it was not in the context of a mental condition at that time, but to allege that he was poisoned by Paris green or other agents in service. Although the treatment provider at that time stated that he suspected a psychiatric discharge, he also noted that he had no data. Moreover, the Appellant is not competent to provide a medical assessment that the severity of his psychiatric condition increased in severity during service. Although he is competent to describe worsening symptoms, a medical professional would be needed to assess whether the described history represented an increase in the severity of the condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances: (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.). A temporary flare-up or recurrence of symptoms during service, of a pre-service condition, does not establish an increase in disability as required for a finding of service aggravation. Rather, aggravation requires an increase in the level of the underlying condition. Davis v. Principi, 276 F.3d 1341 (Fed.Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Medical evidence is more probative concerning whether an increase in symptomatology represents an increase in the level of a psychiatric condition, because the underlying pathology is of relative complexity. Due to the medical complexity of the matter, a medical opinion was sought out to address for the purpose of determining whether the evidence, including the Appellant's history, showed aggravation in service. The Appellant unfortunately failed to report for that examination. Therefore, the claim must be decided based on the evidence of record. 38 C.F.R. § 3.655. The only medical evidence in the Appellant's favor consists of Dr. Davis's November 2005 opinion that the Appellant's "condition had worsened since 1985 when he first joined the military." He did not state that the condition had worsened in service, or even because of service; simply that it had worsened since service. His statement does not indicate any causal or temporal link to service. He also noted that the Appellant claimed that his military service worsened his pre-existing condition, and that the worsening of his condition is evidence of this, without adding any conclusion or opinion of his own. The Board does not consider this to be particularly probative evidence because a bare transcription of lay history is not transformed into competent medical evidence simply because it was transcribed by a medical professional. See LeShore v. Brown, 8 Vet. App. 406 (1995). The credibility problems of the Veteran's assertion of there being an increase in severity in service or due to service also weaken the probative value of this medical statement. See Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Dr. Davis's statement is essentially without probative value, concerning the question of aggravation. In sum, the evidence of in-service aggravation consists of the Appellant's statements of such; to the extent his statements are competent evidence of his own impression of a worsening condition at that time. They are outweighed by the contemporaneous evidence, which does not show an acquired psychiatric disability was noted during service, and that his military service was not noted as a factor in an exacerbation noted 2 months after his discharge. In any event, his statements alone, without an added medical interpretation, are insufficient to show aggravation, and he failed to report for an examination for that purpose. Finally, as discussed above, the medical evidence of record does not show that the pre-existing acquired psychiatric disability increased in severity during service. Service connection is not warranted. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Appellant's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disability, to include schizophrenia, bipolar disorder, and/or schizoaffective disorder, is denied. ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs