Citation Nr: 1606220 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 09-45 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, somatoform disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from December 1975 to March 1978. She also had prior service with the U.S. Army Reserve from July 1975 to December 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In May 2011, the Veteran testified before an Acting Veterans Law Judge at a Board video conference hearing. A transcript of the hearing has been associated with the claims file. The Board notes the Acting Veterans Law Judge who heard testimony in the May 2011 hearing is no longer employed by the Board. The Veteran was notified in September 2015 that she had the right to request another hearing before a different Veterans Law Judge. The Veteran did not respond, and her request for a hearing is considered satisfied. In a November 2011 decision, the Board denied the recharacterized claim for service connection for an acquired psychiatric disorder. The Veteran appealed the denial of her psychiatric claim to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 Order, the Court granted a Joint Motion for Partial Remand (JMR) which found that the Board did not provide adequate reasons and bases to demonstrate that a preexisting psychiatric disorder, schizophrenia, was not aggravated beyond normal progression during the Veteran's period of active service. The Court action vacated the Board's November 2011 decision as to her psychiatric claim and remanded it for further adjudication. The Board remanded the Veteran's claim for further development, to include obtaining a VA psychiatric examination, in June 2013. In August 2014, the Board denied the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran again appealed the denial of her claim to the Court. In an August 2015 Order, the Court granted another JMR, which again found that the Board did not provide adequate reasons and bases to demonstrate that schizophrenia was not aggravated during the Veteran's active service. The matter is now properly before the Board for action consistent with the directives of the September 2015 Joint Motion. FINDINGS OF FACT 1. The Veteran's schizophrenia had onset during her active service. 2. The Veteran's somatoform disorder is related to her service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for schizophrenia have been met. 38 U.S.C.A. §§ 1111, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2015). 2. The criteria for service connection for a somatoform disorder have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. In the instant decision, the Board grants the benefit sought. Therefore any failure to meet these duties is harmless error and need not be discussed further. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2015). "To establish a right to compensation for a present disability, 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"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is warranted for a disability which is aggravated by, proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). Any additional impairment of earning capacity resulting from a service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, also warrants compensation. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition is considered a part of the original condition. Id. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2014). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must demonstrate by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based on aggravation. See Wagner, supra. Initially, the Board notes that the present disability element of service connection is met in this case. The Veteran has received multiple psychiatric diagnoses over the course of the appeal, including PTSD, various mood disorders, schizophrenia, and a personality disorder. With regard to what psychiatric disabilities the Veteran presently has, however, the Board finds the findings of the Dr. R.K.G. to be most probative. Dr. R.K.G. provided a private psychiatric evaluation that was submitted to VA in March 2013. Dr. R.K.G. diagnosed the Veteran with paranoid schizophrenia, a somatoform disorder, and a borderline personality disorder. Dr. R.K.G. stated that both the paranoid schizophrenia and the borderline personality disorder pre-existed the Veteran's period of active service and that it was at least as likely as not that each was aggravated during her period of active duty. Dr. R.K.G. also explained that the somatoform disorder was a pain disorder associated with both psychological factors and a general medical condition, and he asserted this diagnosis was considered to have been caused by the Veteran's period of military service. The Board subsequently remanded the Veteran's claim in June 2013, as noted in the introduction, in order to afford the Veteran an examination for her claim. Subsequently, the Veteran underwent a psychiatric evaluation provided by VA in January 2014. The Board notes the VA examiner ruled out PTSD. Indeed, the examiner found that the Veteran did not have a mental disability for VA purposes. Rather, the Veteran was diagnosed with a borderline personality disorder. Dr. R.K.G. provided an April 2014 addendum to his February 2013 opinion. He indicated that he was in agreement with the January 2014 VA opinion that borderline personality disorder preexisted the Veteran's period of active service. As to the diagnosis of schizophrenia, he once again pointed out that this diagnosis was provided in 1972, and bolstered by the Veteran's pattern of substance abuse and prostitution. Dr. R.K.G. then described the Veteran having a period of service with no overt psychiatric problems, during which she received several promotions and achievements. Gradually, however, there emerged what proved over time to be an exacerbation of the underlying psychosis to the extent that these disorders seemed to re-emerge into the active phase, after having been in a residual phase or state of remission. These active phases were precipitated by several events (external stressors which combined to undermine the equilibrium the Veteran had achieved, whereupon a process of deterioration and decompensation ensued). Specifically, the psychologist pointed to service treatment reports of conflictual social relationships and domestic problems. Per the provider, these signs can be seen as a downward spiral from adequate adjustment to military life to a process of gradual deterioration marked by disorganized thinking (to include paranoid ideation and delusions of persecution). He concluded that such manifestations resulted in the need for hospitalization and psychiatric treatment due to increased functional incapacity with severity to such an extent that the Veteran was ultimately declared unfit for duty. Based on the detailed opinion and the thorough rationale accompanying Dr. R.K.G.'s evaluations, the Board accords these reports great probative weight regarding what diagnoses the Veteran has had during the course of the claim and appeal period. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Dr. R.K.G. gathered a detailed history from the Veteran and provided a rational basis for the diagnoses rendered based on the clinical interview and the Veteran's psychiatric history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Therefore, the Board finds that the Veteran presently has schizophrenia, a somatoform disorder, and a borderline personality disorder. The Board notes that a personality disorder is not a disability within the meaning of applicable legislation for VA benefits. See 38 C.F.R. § 3.303(c). However, regarding the Veteran's diagnoses of schizophrenia and a somatoform disorder, the Board finds that the present disability element of service connection has been met. Next, there is evidence that psychiatric symptoms manifested during the Veteran's active service. During her military service, the Veteran underwent extensive psychiatric treatment. Notably, in April 1976, it was reported that although there was evidence of schizophrenic illness, there was no overt delusional symptoms, the Veteran was not a risk to herself or others, and in light of her pregnancy, antipsychotic medications were not prescribed. Upon discharge from the hospital, she was determined to be "mentally competent" and able to manage her own financial affairs. Discharge from military service was recommended. In May 1976 Medical Board Proceedings, the Veteran was diagnosed with chronic, severe schizophrenia, chronic undifferentiated type. The Medical Board found that the Veteran's schizophrenia was not incurred in the line of duty and indicated that the Veteran's condition was not "Aggravated by Active Duty." The Board notes that other clinicians during the Veteran's active service found no evidence of psychiatric symptoms. However, the above-mentioned evidence clearly demonstrates that symptoms of schizophrenia did manifest during the Veteran's active service. Having made this determination, the Board now addresses whether that disorder was incurred during the Veteran's active service. This requires that the Board discuss the facts in relation to the statutory presumption of soundness found at 38 U.S.C.A. § 1111. In the Veteran's November 1975 Report of Medical Examination for enlistment, no psychiatric symptoms were noted. Therefore, this case involves a service connection claim as opposed to a service aggravation claim. See Wagner v. Principi, supra. The Board must next determine if the rebuttal requirements specified in 38 U.S.C.A. § 1111 are met, that is, whether there is clear and unmistakable evidence that a psychiatric disorder preexisted service and, if so, whether there is clear and unmistakable evidence that the psychiatric disorder was not aggravated during such service. The burden is on the government to prove both prongs. See Wagner. In this case, the evidence shows that the first prong has been met. There is clear and unmistakable evidence that the Veteran's schizophrenia preexisted service. During service, the Veteran acknowledged that she checked herself into a mental institution for help prior to her active service. Although found to be clinically normal psychiatrically upon entrance to service, the Veteran's service treatment records document a report of a two-month psychiatric hospitalization in 1972 with a diagnosis of schizophrenia. Both private and VA clinicians have concurred that the Veteran's psychiatric impairment preexisted her military service. Therefore, the Board finds that the record contains clear and unmistakable evidence that the Veteran had a psychiatric disability prior to her military service. However, there is no clear and unmistakable evidence that the Veteran's preexisting psychiatric disorder was not aggravated by her service. In the March 2013 private evaluation, Dr. R.K.G. concluded it was at least as likely as not that the Veteran's schizophrenia was aggravated during her active service. He affirmed this opinion in his April 2014 addendum. The VA examiner from January 2014 found that there was no aggravation. However, the Board notes the examiner's opinion was restricted to the Veteran's preexisting personality disorder. Notwithstanding this opinion, the Board nevertheless accords more probative weight to the private opinions of Dr. R.K.G. Furthermore, clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.' "). It cannot be found, based on the evidence presently of record, that the Government has met the burden of showing that the Veteran's schizophrenia disability was clearly and unmistakably not aggravated during her active service. Because of the high standard the clear and unmistakable evidence test presents, the Board finds that there is no clear and unmistakable evidence that the Veteran's schizophrenia was not aggravated by her active service. Thus, the presumption of soundness is not rebutted, and the in-service element of service connection is met in this case. Schizophrenia was incurred during active service. Turning to the nexus element, the March 2013 and April 2014 private evaluation reports are sufficient evidence for the Board to conclude that the nexus element is met. These opinions relate the Veteran's current schizophrenia to her active service. Therefore, because all elements of service connection have been met, service connection for schizophrenia must be granted. The Board next addresses the issue of whether service connection for the Veteran's diagnosed somatoform disorder is warranted. In his March 2013 evaluation, Dr. K.M.G. explained that the somatoform disorder was a pain disorder associated with both psychological factors and a general medical condition, and he asserted this diagnosis was considered to have been caused by the Veteran's period of military service. Later in the report, Dr. R.K.G. indicated that the Veteran's somatoform disorder was secondary to an injury sustained from a fall and diagnosed as chondromalacia of the right knee in August 1977. The Board notes that the Veteran is presently service-connected for a right knee disability as a result of this fall. Hence, as competent medical evidence causally relates the Veteran's somatoform disorder to her service-connected right knee disability, the Veteran is entitled to service connection for a somatoform disorder on a secondary basis. See 38 C.F.R. § 3.310. In summary, the Board finds that service connection is warranted for the Veteran's diagnosed schizophrenia and somatoform disorders. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for schizophrenia is granted. Service connection for a somatoform disorder is granted. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs