Citation Nr: 1604366 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 08-34 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depressive disorder, and psychotic disorder. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was remanded by the Board in January 2010. Thereafter, in a March 2011 decision, the Board reopened the claim of entitlement to service connection for a psychiatric disorder and remanded it for further development. Subsequently, in a September 2013 decision, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disorder. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2014, pursuant to a Joint Motion for Remand (JMR) filed by the Veteran and the Secretary of Veterans Affairs (Secretary), the Court vacated and remanded the September 2013 decision. Thereafter, in August 2014 and March 2015, the Board remanded this matter for further evidentiary development. The case has been returned to the Board for further appellate action. In January 2016, the Veteran submitted additional evidence in support of his claim accompanied by a waiver of initial RO consideration. In light of the waiver accompanying the additional evidence, the Board notes that it may consider such evidence in the first instance. See 38 C.F.R. § 20.1304 (2015). FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran's acquired psychiatric disorder is related to his active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for establishing service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). As the Board's decision to grant the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is completely favorable, no further action with respect to those issues is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49747 (1992). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2015). The Board notes that congenital or developmental defects, such as personality disorders, are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. Service connection is generally precluded for any such defects. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect, such as a personality disorder, during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Every person employed in the active military, naval, or air service 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. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant 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. Id; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Turning to the evidence of record, the Veteran's service treatment records include a normal psychiatric evaluation during his May 1964 enlistment examination. In July 1964, several weeks after beginning basic training, the Veteran was admitted to the hospital for pneumonia. During treatment, the Veteran expressed "feelings of apprehension about returning to recruit training and...fears of being unable to function as a recruit." The Veteran was referred to the psychiatric service for consultation. Records related to that psychiatric consultation are not contained in the Veteran's service records, but the narrative summary of the Veteran's pneumonia hospitalization indicates that "[i]t was the feeling of the psychiatrist that this represented emotional instability reaction and that the patient should be transferred to ward 36-3 after the pneumonia was cleared for further disposition." On September 11, 1964, the Veteran "was considered ready for transfer to the psychiatric service." Again, there are no such psychiatric records contained in the claims file, but a Report of Board of Medical Survey dated on September 30, 1964, indicates that the examiners concluded that the Veteran suffered from a profound personality disorder that rendered him unsuitable for military service. The conclusion was that he had no disability that was the result of an incident of service or that was aggravated by service. Based on the foregoing, the Veteran was released from service. Post-service, the Veteran was hospitalized at a VA Medical Center (VAMC) in August 1967 with mumps. During the hospitalization, the Veteran was transferred to the psychiatry service with diagnoses of "emotionally immature, inadequate personality with passive-aggressive dependent traits" and "schizophrenic reaction, chronic undifferentiated type, not proven." In March 1968, the Veteran was hospitalized at a VAMC with an admitting diagnosis of possible chronic schizophrenia. He remained in the hospital for 70 days, and his discharge diagnosis was passive aggressive personality, aggressive type. In October 1975, the Veteran was hospitalized at a VAMC for 28 days with an admission diagnosis of depressive syndrome and a discharge diagnosis of "depression in a passive-dependent personality." During a June 1983 VA psychiatric examination, the Veteran was diagnosed with dysthymic disorder, chronic, severe. Subsequent VA treatment records and examination reports from 2008 reflect diagnoses of dysthymia, psychotic disorder, depressive disorder, anxiety disorder, and personality disorder with dependent traits. The Veteran was afforded a VA examination in October 2010. The Veteran reported no history of mental illness or mental health treatment prior to military service. The examiner noted that the Veteran had no infractions or adjustment problems during his military service and that the Veteran was discharged from service due to emotional instability reaction. On examination, the Veteran displayed persistent delusions and auditory and visual hallucinations. After examining the Veteran and reviewing the claims file, the examiner diagnosed the Veteran with depressive disorder, psychotic disorder, and personality disorder with dependent traits. The examiner opined that the Veteran's depressive and psychotic disorders are not related to or the result of his military service because he "was not diagnosed with or treated for any Axis I mental disorders during his brief period of military service." The examiner also indicated that the Veteran "had significant difficulty adjusting to military service due to characterological factors (e.g., significant dependence and insecurity) that developed in childhood as a result of a very dysfunctional home environment." The examiner stated that the Veteran has had life-long adjustment problems due to his personality disorder and that "[h]is depressive and psychotic symptoms developed after his military service, and thus are unrelated to it." In March 2011, the October 2010 VA examiner provided an addendum opinion regarding whether any current personality disorder was subject to any superimposed disease or injury during military service, as well as whether any other acquired psychiatric disorder had its onset in or was otherwise caused or aggravated by the veteran's military service. After reviewing the claims file, the examiner indicated that "[t]here is no new and material evidence to change the diagnoses and opinion yielded from the [V]eteran's examination in 10/10." The examiner further opined that the Veteran's personality disorder was not subject to any superimposed disease or injury, or otherwise permanently aggravated during military service because "he was not in combat, sexually abused, or otherwise exposed to trauma during military service." The examiner also reiterated his opinion that the Veteran's depressive disorder and psychotic disorder did not have onset in or were otherwise related to the Veteran's military service. The Veteran was afforded a VA examination in November 2014. The examiner diagnosed the Veteran with "other specified personality disorder, with schizotypal and dependent traits" and "persistent depressive disorder (dysthymia)." After examining the Veteran and reviewing the claims file, the VA examiner opined that it is less likely than not that (1) the Veteran's personality disorder was subject to any superimposed disease or injury; (2) the Veteran's diagnosed personality disorder or persistent depressive disorder had its onset in service; and (3) the Veteran's depressive disorder was caused or permanently aggravated by military service. In the Rationale section of the report, the examiner indicated that the Veteran's early treatment records "note significant issues, which can best be described as personality disorder, that clearly predate his time in service." The examiner further indicated the Veteran's "significant family problems" played a causative role in the Veteran's "inability to meet the demands of life, socially or psychologically." The examiner also stated that "[t]here was nothing about his military experiences, per se, that caused him to have problems; the course of his mental health history suggests that he would have very substantial coping issues regardless of his time in the military." Regarding any signs of a psychotic disorder, the examiner indicated that later in the Veteran's life, "he developed very strong religious beliefs/ideas that others have labeled as psychotic; it is not clear, at this point, if he was ever actually psychotic." In December 2014, a private psychologist, Dr. E.B., submitted a psychological evaluation of the Veteran. Dr. E.B. indicated that his report was based upon seven hours of clinical interviewing and testing of the Veteran, review of military service records, review of VAMC treatment records, review of the VA claims file in its entirety, review of marriage and divorce records, and review of written communication provided by the Veteran. The examination report is very comprehensive and detailed; for the sake of brevity, the Board will only point out the most salient information/findings contained therein. After a very thorough and detailed summarization of the evidence, Dr. E.B. opined that the Veteran "suffered from a serious Axis I psychiatric disorder (per DSM-I) that had onset during the stress and rigor of military training." He further opined that it is as likely as not that the most probable diagnosis at the time the Veteran was hospitalized in the military was "schizophrenic reaction acute undifferentiated type." Dr. E.B. indicated that this opinion is supported by psychometric testing results, which were negative for any identified significant personality disorder and showed that the Veteran's most probable diagnosis is schizophrenic disorder. Dr. E.B. also noted that the current psychometric testing results are generally consistent with testing conducted during the Veteran's first documented VA hospitalization in 1967 showing the possible presence of thought confusion or thought disorder. Dr. E.B. further noted that the record shows numerous examples of delusions and hallucinations that have manifest since at least 1967 and that a VAMC psychiatrist referenced schizophrenic reaction, chronic undifferentiated as a possible diagnosis when the Veteran was hospitalized in 1967. Dr. E.B. also found it significant that during the 1968 hospitalization, the Veteran was initially prescribed Mellaril, which is a medication used to treat psychotic disorders. Regarding the diagnoses of a personality disorder in service and after service, Dr. E.B. indicated that the diagnosis was made without "any comprehensive assessment, psychological testing, or further psychiatric evaluation to assess for the possibility of an Axis I disorder versus an Axis II personality disorder." Moreover, Dr. E.B. explained that the Veteran's observed and reported symptoms at the time did not conceptually meet the criteria for a diagnosis of emotionally instable personality disorder as defined by the DSM-I. Dr. E.B. concluded that "the military assigned the diagnosis of Emotional Instability Reaction without necessary and appropriate follow-up assessment" and that "VAMC mental health professionals, including his treatment team and Compensation and Pension examiners simply accepted the diagnosis provided by the military and did not perform due diligence in conducting a comprehensive and independent evaluation." He indicated that "it appears once the diagnosis of personality disorder was placed in his medical chart, the diagnosis continued to be cited as the presenting diagnostic consideration without further critical review." Dr. E.B. also noted that he has "over thirty years of VAMC experience and can attest the practice of reiterating a previous established diagnosis occurs far too often." Dr. E.B. additionally took issue with the findings contained in the October 2010, March 2011, and November 2014 VA examination reports, noting that the October 2010/March 2011 VA examiner's report was "significantly flawed and lacked necessary supporting evidence with respect to the conclusions reached" and that the findings were "based on clinical judgment and do not constitute sound psychological practice." Regarding the November 2014 VA examination report, Dr. E.B. indicated that the "argument is flawed and without supporting evidence." He also explained in detail why the examiners' conclusions were contrary to the evidence of record. Dr. E.B. concluded his report by opining that the Veteran currently has schizophrenia, that the Veteran's first psychotic episode occurred while he was in the military, and that his schizophrenia has continued at various levels since that time. In a June 2015 addendum report, the November 2014 VA examiner opined that it is less likely than not that the Veteran's diagnosed persistent depressive disorder had its onset in service because he was first treated for depression in 1967 and because his persistent depressive illness was not in place at the time of his discharge. The examiner also indicated that the diagnosis of "emotional instability reaction" in service was a "reaction, not a chronic disorder." The examiner indicated that the Veteran had a troubled life before he entered service and that his pre-existing personality disorder had "the effect of preventing successful coping skills." Regarding the medical board's notation that the Veteran "suffers from a profound personality disability which renders him unsuitable for the naval service," the examiner indicated that "[m]ore simply put, this is saying that he lacked the requisite coping skills to handle the stress of the demands of service. His situational reaction was that of anxiety." In December 2015, a private psychologist, Dr. R.F.., submitted a psychological evaluation of the Veteran. Dr. R.F. indicated that his report was based upon review of the claims file and an 80 minute interview with the Veteran. After a detailed summary of the evidence, Dr. R.F. concluded that the Veteran's current diagnosis is schizophrenia and unspecified depressive disorder and that the "symptoms associated with these conditions were present during service and represent a continuation of symptoms first demonstrated in September 1964, while on active service." Dr. R.F. stated that the Veteran's in-service diagnosis of emotional instability reaction was not a personality disorder diagnosis as understood today. Dr. R.F. further explained that the in-service providers did nothing empirically to establish the existence of a personality disorder. Dr. R.F. also outlined evidence against the notion that the Veteran had any sort of dependent personality traits prior to enlistment, and he opined that the Veteran developed traits of dependency after enlistment and that the dependent traits "can easily be account for by long-term depressive and anxiety symptoms-those that he began to demonstrate in 1964 and has continually demonstrated since." Dr. R.F. indicated that "[i]t is understandable that others would later see his depressed and dependent characteristics as evidence of personality disorder, but what is missing in such constructions is the application of diagnostic criteria, and when one applies standard diagnostic criteria to the history of mental disorder for this [V]eteran, a personality disorder is not diagnosable." Also of record is a June 2014 lay statement from the Veteran's sister. In the statement, the Veteran's sister indicates that the Veteran was "completely different since he came home from service in 1964." She reported that the Veteran was a normal child growing up and that just before he went to basic training, he was a normal teenager. She further indicated that less than a year after he was discharged, the Veteran came to live with her and that she "immediately noticed that his behavior was erratic." The Veteran's sister also reported that she first noticed the Veteran's hallucinations about 10 years ago and that they have been worsening over the years. Initially, the Board points out that the Veteran was found to be psychiatrically normal with no other relevant abnormalities noted on his May 1964 service entrance examination. As detailed above, although the Veteran reported various family and school difficulties during childhood, he has consistently denied receiving mental health treatment or being diagnosed with a psychiatric disorder prior to service. Additionally, the Veteran's sister provided competent and credible statements that the Veteran was a normal child and teenager prior to active service. Further, both Dr. E.B. and Dr. R.F. determined that there was no evidence that a psychiatric disorder preexisted service. Thus, as there is no documented notation at entrance as to the existence of any acquired psychiatric disorder or clear and unmistakable evidence that the disorder preexisted service, the Board finds that the presumption of soundness is for application. See 38 U.S.C.A. § 1111; see also Doran v. Brown, 6 Vet. App. 283, 286 (1994). Next, the Veteran has been diagnosed with schizophrenia, depressive disorder, and psychotic disorder during the appeal period. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The next question is whether a psychiatric disorder was shown during service. Service treatment records document that the Veteran had "feelings of extreme apprehension," anxiety, and feelings of fright and nervousness while in service. During the clinical interview with Dr. E.B., the Veteran reported that his basic training was stressful and that the Drill Instructors were threatening and physically aggressive. The Veteran also reported that during his in-service hospitalization, his thinking was fragmented and he "mentally collapsed." He stated that his "mind just wasn't working right." As noted above, the in-service diagnosis, after hospitalization for evaluation purposes, was emotional instability reaction and a personality disorder. In light of this evidence, the Board is persuaded that the Veteran had psychiatric symptoms during service. Accordingly, the second Shedden element, in-service disease, injury, or event, has also been satisfied. See Shedden, supra. The dispositive question is whether there is a relationship between the Veteran's currently diagnosed acquired psychiatric disorder and the events in service. On this question, the record contains conflicting opinions. In addressing the merits of the Veteran's claim, the Board notes that multiple clinicians have evaluated the Veteran and come to different conclusions as to the proper psychiatric diagnosis; with some, on the one hand, finding that the Veteran's primary diagnosis is, and always has been, a personality disorder, an impairment which could not be the basis for a grant of service connection, and others determining that the Veteran does not have, and has never had, a personality disorder, but rather that the Veteran was misdiagnosed in service and that the Veteran currently has schizophrenia and depression. Moreover, the VA examiners opined that the Veteran's psychiatric disorders, other than personality disorders, are unrelated to service, while the private examiners both opined that the Veteran's current acquired psychiatric disorder, namely schizophrenia and depression, has been present since service. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The VA examiners and the private examiners reviewed the claims file and examined the Veteran prior to rendering the opinions. Thus, it cannot be said that one opinion carries more probative weight than the other. Moreover, all of the opinions are supported by an adequate rationale and the other medical evidence of record. In support of the VA examiners' conclusions, there are numerous treatment records dated from 1967 to the present diagnosing the Veteran with a personality disorder and finding no other psychiatric disorder present. On the other hand, numerous treatment providers have diagnosed the Veteran with a psychotic disorder, to include the October 2010 VA examiner. Significantly, as early as 1967, the Veteran was given a provisional diagnosis of schizophrenia, and, during the 1968 hospitalization, the admitting diagnosis was possible chronic schizophrenia, and the Veteran was treated with a medication used to treat psychosis. Moreover, when first afforded a VA psychiatric examination in June 1983, the Veteran was diagnosed with severe, chronic, dysthymic disorder, rather than a personality disorder. The Board notes that neither VA examiner discussed the significance of this evidence in forming their opinions. That said, the Board finds no adequate reason to favor the negative opinions over the positive opinions that are favorable to the Veteran's claim. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the positive and the negative opinions put the evidence in relative equipoise as to whether the Veteran's currently diagnosed acquired psychiatric disorder had its onset in service. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depressive disorder, and psychotic disorder, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, depressive disorder, and psychotic disorder, is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs