Citation Nr: 1627671 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 03-23 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as organic brain syndrome. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney at Law ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for the claimed disability. In a July 2003 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge; however, in May 2004, he withdrew his hearing request. See 38 C.F.R. § 20.704(d). In August 2005, the Board denied the claim for service connection for a psychiatric disorder. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's decision and remanded the case to the Board in November 2007. The Board remanded the case for further development in April 2009 and February 2010 with instructions to obtain a Veterans Health Administration (VHA) medical expert opinion, which was subsequently obtained in February 2012. The Board remanded the case again in July 2012 for reajudication by the RO after consideration of additional evidence. The RO considered the evidence and issued a Supplemental Statement of the Case (SSOC) in November 2012. In July 2013, the Board again denied the claim for service connection. The Veteran again appealed the Board decision to the Court. Subsequently, the parties filed a Joint Motion for Remand (JMR) requesting that the matter be remanded to the Board for additional development. In a March 2016 Order, the Court granted the parties' motion, vacating the Board decision and remanding the case to the Board for compliance with instructions in the JMR. FINDINGS OF FACT 1. There is clear and unmistakable evidence that a psychiatric disorder pre-existed the Veteran's entrance to active duty. 2. There is not clear and unmistakable evidence that the Veteran's pre-existing psychiatric disorder was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). As the Board is granting the claim for service connection for a psychiatric disorder, the claim is substantiated and there are no further actions necessary on the part of VA to notify or assist. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). Law and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing (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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may be also granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Generally, a Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. 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. To rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence that (1) the disease or injury existed prior to service, and (2) the disease or injury was not aggravated by service. 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 the rebuttal standard attaches. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (a clear and convincing evidence burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. VAOPGCPREC 3-2003 (2003); 69 Fed. Reg. 25178 (2004). VA adjudicators are directed to assess both medical and lay evidence. The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises, and may also include statements from authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). A layperson is not generally capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). But see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for a Psychiatric Disorder The Veteran contends that his military service caused and/or worsened his mental impairment, due to in-service exposure to toxic chemicals and head trauma from electro-shock treatments. See the February and March 2002 statements. The Board finds that the evidence of record clearly and unmistakably shows that a psychiatric disorder was present prior to service, but that the evidence does not show clearly and unmistakably that the pre-existing disability was not aggravated by service. Service treatment records (STRs) indicate that in a June 1966 service entrance examination, the Veteran was found to be psychiatrically normal and he did not report having any psychiatric symptoms. He received an Article 15 for missing work and being absent without leave from March 13 to March 29, 1967. Upon his return to military control, he was referred to a psychiatrist at Fort Lee, who felt he was suffering from an acute anxiety reaction and was transferred to Walter Reed for further evaluation and disposition. In April 1967, the Veteran was admitted to the hospital due to poor personal hygiene, continuous tardiness for details and work, seclusiveness, appearing to walk about in a daze attending to autistic material, and writing a letter stating he found a successful way to kill himself. During his hospitalization, it was noted that the Veteran had a chaotic family life, including his father having a history of war neurosis, a bad temper, and drinking, and a sibling in a state mental hospital due to "bad nerves." The Veteran reported that he was in a corrective institution for eight months when he was fifteen years old. Mental examination revealed that the Veteran was fully oriented, appeared quite histrionic with prolongation of expression and occasional blocking, had an inappropriate affect, and occasional looseness of his associations. His intelligence appeared to be below average, he was not anxious or depressed, and several evaluations by the psychiatric staff yielded evidence that he had a character and behavior disorder of an emotional instability type. The Veteran's behavior while hospitalized further manifested his immaturity and low frustration tolerance, and his emotions were frequently labile. Psychological testing indicated that the Veteran was of normal intelligence and there was no evidence of organicity or schizophrenia. There was evidence of an emotional immaturity pattern and two EEG tests showed "borderline" results, although a neurology consultation indicated thia the EEGs could be interpreted as within normal limits. The Veteran was diagnosed with emotional instability reaction, chronic, moderate, manifested by a low frustration tolerance, superficial suicidal gestures, absence without leave from the military service, poor personal hygiene, tardiness in appointments, impulsive behavior, minimal stress, routine military duty, moderate disposition, life-long history of difficulty in adjusting and of immature behavior, marked impairment for further military duty, and definite impairment for social and industrial adaptability. This diagnoses was noted to have existed prior to military service. The Veteran was subsequently found unsuitable for military service and was discharged in June 1967. In a May 1967 separation examination, the Veteran was again noted to be psychiatrically normal; however, he noted that he had depression or excessive worry, frequent trouble sleeping, nervous trouble, and had attempted suicide. Post-service treatment records indicate that in October 1975, the Veteran was examined by a private psychiatrist, Dr. M.G., pursuant to a court order. Dr. M.G. noted the two borderline EEGs and the in-service personality disorder diagnosis, but concluded that the more likely diagnosis was organic brain syndrome resulting in emotional instability and fits of violence. A December 1975 EEG confirmed Dr. M.G.'s clinical impression of organic brain syndrome. In 1976, the Veteran was sentenced to death for first degree murder. His sentence was later commuted to life imprisonment. In November 1984, the Veteran was examined by another private psychiatrist, Dr. D.L., who determined that the Veteran exhibited evidence of brain damage. This assessment was based on symptoms such as an abnormally clumsy gait, a lack of normal arm movement, synkinesis, and a general clumsiness in physical activity. Organic impairment was also confirmed on psychological testing. Treatment records from various correctional institutions in Florida dated from 1992 to 2002 include a September 1992 intake psychological screening report in which the Veteran indicated that he was hospitalized only once for psychiatric reasons, namely, in April 1967 during service. His mental status was found to be within normal limits. In October 1997 and October 1998, the Veteran reported a history of nervous trouble. He was seen by a mental health professional in April 1995, May 1996, November 1997, December 1997, April 1998, October 1998, and December 1999 for, among other things, "acting strange," anger, depression, hostility, and indications of suicidal or homicidal ideations. The assessment noted on the October 1998 treatment record was rule-out adjustment disorder with depressive mood. An August 2000 social screening revealed reports that the Veteran was seen by a child psychologist from age 12 to 14 to address conduct disturbances and alcoholism. Additional medical records from the Florida Department of Corrections show treatment between 2000 and 2010 for mental health complaints, particularly in 2010. A March 2010 treatment record documented reports from the Veteran that he was exposed to toxic chemicals during service and was diagnosed with organic brain syndrome after service. The provisional diagnosis was rule-out mood disorder due to organic brain damage. Another March 2010 treatment record noted a diagnosis of a psychotic disorder with hallucinations due to exposure to toxic chemicals and organic brain damage. Subsequent medical treatment records dated in June 2010 also show a diagnosis of a mood disorder due to organic brain damage. The Veteran received treatment for anger management, hallucinations, sexual aggressiveness, and substance abuse. In April 2005, a VA medical advisory opinion was obtained from Dr. J.P., a staff psychiatrist. Dr. J.P. stated that he reviewed the Veteran's STRs and 1975 letters from Dr. M.G., and noted that when the Veteran was hospitalized in service there was no history of major trauma, toxic exposure, or other insult consistent with brain damage. He noted that the Veteran's intelligence testing was normal and the EEGs were lacking enough changes to be declared definitively abnormal, which were not findings consistent with the diagnosis of organic brain syndrome. Dr. J.P. concluded that it was unlikely that organic brain syndrome was diagnosed during military service. In February 2012, a supplemental VA medical advisory opinion was obtained. Dr. P.M. found that although the complete psychiatric record of the Veteran's current treatment was not available, by extrapolating from the medical progress notes and a recent discharge diagnosis, it was more likely than not that the Veteran was currently suffering from an organic mood disorder with hallucinations due to an organic brain syndrome. He noted the references that while in prison, the Veteran had been treated with antidepressant medication, but explained that since there were references in the correctional record to the Veteran receiving medication for being psychotic, the medication would have been an antipsychotic because an antidepressant would not treat psychosis. Dr. P.M. further noted the in-service documentation that the Veteran had been suffering from a psychiatric or neurologic disorder that resulted in him having looseness of association, inappropriate affect, preoccupation, inattentiveness, lability, poor insight, the appearance of being autistic, poor hygiene, and a thought process that was described as being concrete. Dr. P.M. found that the Veteran's in-service diagnosis of emotional instability did not reflect the severity of his psychiatric condition and that form the description of his mental status examination, he would currently be classified as having a psychotic disorder from an organic cause, either schizoaffective or schizophrenia. He explained that the Veteran's in-service treatment had consisted of medications that would be appropriate for a diagnosis of psychosis, and that the Veteran also had a history of enuresis and bouts of violence. He concluded that in addition to the documented abnormal EEG, the findings would lead one to suspect an organic etiology for the Veteran's psychiatric disorder. Regarding whether the Veteran had a pre-existing psychiatric disorder, Dr. P.M. observed that the Veteran's provide history indicated that prior to service, he had a learning disorder, was violent, and suffered from enuresis. The Veteran also reported being in a correctional facility for eight months at the age of 15. There was no record of the Veteran's behavior or mental status before or after the incarceration. Dr. P.M. found that there was evidence that a psychiatric disorder had existed prior to the Veteran's entrance into service, but that a retrospective disorder could not be made due to a lack of information. He indicated that the Veteran's psychiatric disorder in service most likely did not cause his pre-existing psychiatric disorder to be worsened for the rest of his life. Dr. P.M. explained that the Veteran's functionality after service had increased to the level of him being able to obtain a G.E.D. whereas prior to service, he had repeated elementary school grades three times and dropped out of school in the eighth grade. In addition, the Veteran's violent behavior after discharge from service was consistent with his behavior prior to service and most likely was not caused by his time in service. The doctor therefore concluded that more like than not, the Veteran had entered service with a psychiatric disorder that had temporarily worsened during service but did not result in a permanent worsening of the disorder. Most recently, the Veteran underwent a psychological/neuropsychological evaluation in August 2013 at Union Correctional Institution by a psychologist, Dr. H.K. The Veteran reported that "my head is playing with me." He stated that it was getting worse, including losing track of time and becoming disoriented. He denied that these problems pre-existed military service. Neuropsychological testing revealed that the Veteran was functioning in the low average range of intelligence and had mild impairment. Dr. H.K. indicated that results of the evaluation were strongly indicative of neuropsychological deficits, particularly executive functions, which was consistent with the findings of Dr. D.L. who opined that the Veteran was suffering from significant organic brain damage. The results were also consistent with the two borderline EEGs conducted in service. Dr. H.K. found that the April 2005 VA medical opinion was surprising, considering the two borderline abnormal EEGs, which are frequently a significant sign of brain damage or disease. Despite the Veteran's troubled youth, he did not now show manifestations of an organic brain syndrome until the military. Dr. H.K. opined that based on the totality of his evaluation, the Veteran suffered from organic brain damage and although he may have experienced behavior problems prior to enlisting in the military, it appeared that he did not begin to manifest symptoms that were associated with the organic impairment until he was in the military. In view of the history provided by the Veteran, Dr. H.K. concluded that the Veteran's organic brain syndrome is causally related to his military experience. The initial determination is whether a psychiatric disorder was present prior to service. The presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). In this case, the Veteran was not noted to have any psychiatric disability or complaints in his June 1966 entrance examination. Thus, the presumption of soundness at entrance is for application. See 38 U.S.C.A. § 1111. Next, the Board finds that the evidence of record clearly and unmistakably shows that a psychiatric disorder was present prior to the Veteran's active service. Significantly, the May 1967 report of the Veteran's month-long hospitalization during service found that his emotional instability reaction, chronic, moderate, had existed prior to military service. In rendering this assessment, the medical personnel considered the Veteran's reported pre-service history, as well as the physical examination findings at that time. In addition, although the February 2012 VA medical opinion concluded that the "emotional instability" diagnosis did not reflect the severity of the Veteran's psychiatric disorder, the Veteran's psychiatric symptoms were nevertheless found by medical service personnel to have pre-existed service. Similarly, in determining that the Veteran had a psychiatric disorder that pre-existed service, the February 2012 VA examiner thoroughly reviewed the medical evidence of record and also considered the Veteran's reported pre-service history. Furthermore, although Dr. H.K. opined in August 2013 that the Veteran's organic brain syndrome did not show symptoms until he was in the military, Dr. H.K. did not contradict the findings that organic brain syndrome was present prior to the Veteran's military service. Thus, the Board finds that the contemporaneous May 1967 hospitalization report and the February 2012 VHA opinion show that there is clear and unmistakable evidence that a psychiatric disorder was present prior to service. However, there is not clear and unmistakable evidence that the pre-existing psychiatric disorder was not aggravated by service. The February 2012 VA physician opined that the Veteran's psychiatric disorder in service most likely did not cause his pre-existing psychiatric disorder to be worsened for the rest of his life, as the Veteran's functionality after service increased, including obtaining his G.E.D., and his pre-service and post-service violent behavior had been consistent. The doctor therefore concluded that more like than not, the Veteran had entered service with a psychiatric disorder that had temporarily worsened during service but did not result in a permanent worsening of the disorder. Dr. H.K., however, concluded that although the Veteran had a "troubled youth," he did not show manifestations of the organic brain syndrome until his period of active military service, and that the Veteran's organic brain syndrome is causally linked to his military service. The burden to show no aggravation of a pre-existing disease or disability during service is an onerous one that lies with the government. Cotant v. Principi, 17 Vet. App. 116 (2003); Kinnaman v. Principi, 4 Vet. App. 20 (1993). In this case, the Board concludes that there are conflicting opinions on whether the psychiatric disorder was worsened by service, and as such, there is not clear and unmistakable evidence that the Veteran's pre-existing psychiatric disorder was not aggravated during service. Because the presumption of soundness has not been rebutted, the claim becomes one of service connection, without consideration of aggravation of a preexisting condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Analyzing the claim under the criteria for direct service connection reflects a current disability as noted in both the February 2012 VA examination and the August 2013 report of Dr. H.K. As noted above, the record also reflects evidence of symptoms during service. Finally, the August 2013 opinion of Dr. H.K. provides the necessary nexus. Therefore, service connection for a psychiatric disability is warranted. ORDER Service connection for a psychiatric disorder is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs