Citation Nr: 1751784 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-36 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to June 1986. This matter came to the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran presented testimony at a personal hearing before a Veterans Law Judge in November 2010. In November 2015, the Board sent a letter to the Veteran, which explained that the Veterans Law Judge who presided over his hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise, the case would be reassigned. The letter also stated that if the Veteran did not respond within 30 days from the date of the November 2015 letter, the Board would assume that he does not want another hearing and proceed with the adjudication of his claim. The Board did not receive a response from the Veteran, and it is presumed that he does not desire an additional Board hearing prior to adjudication. In July 2013 and February 2014, the Board remanded the petition to reopen for additional development. In October 2014, the Board reopened the previously denied claim, and remanded the underlying merits determination, recharacterizing it as one for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2015, March 2016, and April 2017, the Board again remanded the claim for additional development. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder that was demonstrated during or is related to his active duty service, or that a psychosis was compensably disabling within one year of separation from active duty. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated in service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran contends that he has a current acquired psychiatric disorder which had its onset during his active duty military service. The representative has also asserted that the Veteran's psychiatric disorder was caused by head traumas sustained in service in 1983 and 1984. In an April 1995 statement, the Veteran wrote that he incurred posttraumatic stress disorder (PTSD) in 1993. In May 1995, he stated that inservice he saw a chaplain with complaints concerning depression and paranoia, however, the chaplain broke confidentiality by speaking to a warrant officer in his unit about his situation and thereafter these psychiatric problems continued to get worse. He wrote that while in the service he had to work alongside "criminals," which caused him to become depressed and paranoid. In another May 1995 statement, the Veteran wrote that living and working in such close quarters with other men, including a man who had been in prison, greatly affected him. He also wrote that he was given "dirty" and unpleasant jobs in service, such as manning the torpedoes. In January 1999, the Veteran wrote that he became very depressed while in the Navy and that he did get counseling and visited with the Chaplain in 1984 and 1985. At a July 2000 RO hearing, the Veteran testified that he became really depressed while serving on an aircraft carrier because he did not get along with his fellow sailors and had trouble taking orders. He reportedly felt isolated and even suicidal when the ship was far out at sea. He said that after service, he first received treatment in 1990 or 1993. The Veteran's mother submitted a statement in July 2000 describing how the appellant was very outgoing before he entered the Navy but after serving on an aircraft carrier his letters began to seem confused and depressed. She wrote that when he came home on leave, he was isolated and had trouble sleeping. She wrote that she wanted him to see a doctor while he was still on service, but he only went to speak to the chaplain, although he likely needed to see a psychiatrist at that time. She wrote that after service he continued to have mental problems and trouble sleeping, and then since then his problems have only increased, and that he had recently been suicidal. In an April 2009 letter, the Veteran's mother wrote that the appellant developed depression in his junior and senior years in high school, and that when he came home on leave from the Navy, he was very paranoid and nervous. She wrote that she knows now that he should never have been on a ship for months at a time because of his condition, and she also wrote that the Veteran "bumped his head aboard ship." At a November 2009 informal RO conference, the Veteran's mother stated that the Veteran had depression in high school, and that she did seek medical consultation at the time, but the doctor had since retired. At a November 2010 Board hearing, the Veteran testified that he had trouble dealing with his superiors while stationed on a ship in service. The appellant stated that he was depressed and was hearing voices, and that while he did speak to the Chaplain, there was no psychiatrist or psychologist aboard the ship that he could talk to. He stated that he was not formally diagnosed with a psychiatric disorder until the 1990s. The Veteran's mother discussed how she noticed a change in the Veteran's behavior when he came home from service. She said that after service, he was paranoid and had behavioral problems. The Veteran's service treatment records show that in January 1983, he was treated for a lacerated scalp, 1 inch long, after the Veteran "bumped his head, but did not become unconscious." The Veteran was alert and oriented, with no other complaints. In June 1985, he was treated for neck pain after wrestling with a shipmate. He had fair range of motion, no point tenderness, and was diagnosed with muscle strain. In May 1986, the Veteran reported that he hit his head on a door hatch, and he was treated for a small laceration. A follow-up the next day found that the suture in the scalp was intact, and there was no infection or drainage. August 1984, September 1985, and April 1986 physical examinations found the Veteran to be normal neurologically and psychiatrically. On the April 1986 Report of Medical History, the Veteran denied depression, trouble sleeping, loss of memory or amnesia, nervous trouble, or period of unconsciousness. On an August 1988 Report of Medical History from his Reserve service, the Veteran again denied any such symptoms. The Veteran's service personnel records show that he was found on two occasions in 1984 to have unsatisfactory military appearance, but the personnel records show no further reports of disciplinary actions or psychiatric disturbances. In September 1993, the Veteran was admitted to a private psychiatric facility after becoming acutely psychotic, presenting with paranoid thinking and having recent violent behavior. He was first diagnosed with depression and paranoid ideas, and in October 1993 he was diagnosed with paranoid disorder, schizoaffective disorder, and antisocial and narcissistic personality features. He was noted to have no prior history of hospitalization for psychiatric care, but acknowledged significant depression during the prior three months. He also reported having a history of depression in high school and having seen a counselor in the past. Upon discharge in October 1993, he was diagnosed with acute paranoid schizophrenia. In February 1994, the Veteran was treated for depression. In February and March 1995, the Veteran was treated for alcohol and cocaine abuse, rule out major depression versus dysthymia, substance-induced psychotic disorder, and personality disorder. He reported that his drinking started as a teenager and became worse in the Navy. Later in 1995 and 1996, he continued to attend follow-ups and take medication for depression. In 1997 and 1998, the Veteran received occasional counseling for major depressive disorder with psychotic features. In May 2000, the Veteran was treated for depression, and he reported having attempted suicide two months earlier. He reported that he had been treated for depression in the Navy in 1984. In June 2000, he reported that his depression started as a teenager, but that he also had depression in the Navy and was drinking very heavily. Since 2000, the Veteran's private and VA treatment records show fairly regular treatment for moderate schizoaffective disorder, schizophrenia, and chronic paranoia. In October 2014, the Veteran attended a VA psychiatric examination with a psychologist. The examiner diagnosed the Veteran with schizoaffective disorder and discussed the Veteran's long history of auditory hallucinations, delusional thought, and suicidality. The Veteran denied drinking heavily in the Navy or having any disciplinary problems. The Veteran reported that he hit his head walking out of a freezer in the service, although he was unsure whether the voices he hears resulted from this. The examiner reviewed the claims file and medical records, but opined that it was not at least as likely as not that the Veteran's current schizoaffective disorder was the result of the lacerated scalp injuries and twisted neck injury he incurred in service. The examiner stated that there was no evidence to suggest that his condition resulted from these events and nothing in the literature indicated that schizoaffective disorder resulted from such injuries. The examiner noted that the Veteran's pre and post military examinations were negative for mental health problems, and that his first treatment for mental health was in 1993, which is 7 years after leaving the military. He acknowledged the letter from the Veteran's mother that she had witnessed her son having increased isolation, sleep problems, and self-esteem problems while in the Navy, but wrote that her description of the Veteran's problems did not describe any of his current, ongoing psychotic symptoms, and such symptoms were major components of his current diagnosis, which did not "match" with the symptoms she had described. The VA examiner provided an addendum opinion in October 2014. He wrote that it was less likely than not that the Veteran's schizoaffective disorder existed prior to entering the military, explaining that there was no evidence suggesting that his symptoms were present before entering the service. An additional addendum medical opinion was obtained in April 2017. The psychologist wrote that he had reviewed the article "Head Injury as Risk Factor for Psychiatric Disorder," but found that it was not at least as likely as not that the Veteran's acquired psychiatric disability was due to head injuries and a twisted neck in service. He explained that while the Veteran reported hitting his head while walking out of a freezer, there was no indication in the records that the Veteran had been evaluated for a head injury or that he had incurred any manner of traumatic brain injury. In 1986, the Veteran stated that he had not had any periods of unconsciousness or suffered a head injury. The examiner also stated that in the years following the alleged head injury, no neurological examinations were conducted to establish any secondary traumatic brain injury symptoms, such as headaches, memory disturbances, perceptual disturbances, tinnitus or soft neurological problems, and that the lack of evidence establishing the extent of a head injury failed to support a connection to between the Veteran's psychiatric condition and his military service. The Board has reviewed all of the medical evidence of record, but finds that entitlement to service connection for an acquired psychiatric disorder is not warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of 10 percent within one year from the date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the Veteran has been diagnosed with having psychotic features, but there is no medical evidence showing that the Veteran had a diagnosed psychosis during service or that a psychosis was compensably disabling within one year of his separation from active duty. While the Veteran has testified that he heard auditory hallucinations while in service, it is not supported by his service treatment records that he had any such symptoms in service, and at other times he has contradicted this statement by saying that he did not have psychotic symptoms in service, only depression and paranoia, and that he did not require psychiatric treatment until 1993. In the absence of any medical evidence showing that the Veteran had psychotic symptoms within a year of separation from service, this presumption is not applicable. While there is some indication in the statements submitted by the Veteran's mother that he may have had symptoms of depression prior to his entrance into service, there is no indication in his entrance examination of any psychiatric disorder or symptomatology, and no clear and unmistakable evidence that any psychiatric disorder preexisted the Veteran's service. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (A veteran will be considered to have been in sound condition when enrolled for service, except for defects and disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior to service.). The Board also notes that while the Veteran alleged in 1995 that he had PTSD, his medical records do not show that he has been diagnosed with PTSD at any time. The Veteran does, however, have other psychiatric diagnoses, and therefore only the question of entitlement to service connection for his diagnosed disorders, and not the regulations pertaining to entitlement to service connection for PTSD, will be discussed. See 38 C.F.R. §§ 3.304(f), 4.125(a) (2017). The Veteran's primary contention is that his current psychiatric disorder, usually diagnosed as a schizoaffective disorder, either had its onset during his active duty service, was caused by personal and professional difficulties during service, or was caused by injuries to the head during service. The weight of the probative medical evidence is against this assertion, and service connection must be denied. While the Veteran clearly has a current psychiatric disorder, the most probative medical evidence on the question of its etiology comes from the medical opinions of the VA psychologist examiner. The VA psychologist's October 2014 examination report and two addendum opinions provide ample evidence indicating that the Veteran's current psychiatric disorder is not related to his military service. The examiner discussed the Veteran's assertions, including his mother's statements, the assertions that the appellant may have suffered a head injury in service, and the journal article discussing head injury as a risk for psychiatric disorder. The examiner found, however, that the evidence did not show that any of the Veteran's current symptoms had their onset during service, and the appellant's mother's statements regarding his change in behavior during service, such as sleep problems and self-esteem issues, were not the same symptoms as those manifested by the Veteran's current schizoaffective disorder, and therefore did not support a finding that his current psychiatric disorder began at that time. The October 2014 examiner also did not find that the evidence indicated that the Veteran incurred the type of traumatic brain injury in service that could potentially contribute to a later psychiatric disorder. The examiner noted that merely because the Veteran bumped his head and had small lacerations on the scalp did not indicate that he incurred a traumatic brain injury. The Veteran has not provided any medical evidence indicating that he has, at any time, incurred a traumatic brain injury or demonstrated the type of symptoms which the VA examiner noted would be evidence of a traumatic brain injury. The examiner reviewed all of the medical evidence, but opined that it was less likely than not that the Veteran's current psychiatric disorder was incurred in or related to service, including due to head injuries in service. The Board finds the VA medical opinions to be highly probative evidence, as they were written after a competent medical professional reviewed the Veteran's complete medical records and claims file, performed an in-person examination. The examiner provided an adequate rationale, and the facts discussed by the examiner accurately reflect the medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (noting that most of the probative value of a medical opinion comes from its reasoning); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). There are no contradictory opinions from any medical provider. While the Veteran may sincerely believe that his psychiatric disorder was caused by conflicts with other sailors in the service, the stress of being on a ship far out at sea, or bumping his head on a door or freezer in service, his testimony on the etiology of his condition or the presence of a psychiatric diagnosis while he was still in service is less probative than the findings of the VA examiner. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran's belief that his psychiatric disability was caused by his service is outweighed by the medical opinions of the VA examiner, who is a qualified psychologist. The appellant's assertion that his service caused his current diagnosis extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be within the competence of lay witnesses. The most probative evidence on this question is the competent medical opinion of the VA psychologist. The evidence preponderates against finding entitlement to service connection for an acquired psychiatric disorder. The preponderance of the competent and probative medical evidence shows that the Veteran does not have an acquired psychiatric disorder that was incurred in service or is otherwise related to any event or injury in service, including to the head lacerations that he incurred in 1983 and 1986. The medical evidence preponderates against finding that the Veteran manifested psychosis within one year of his separation from active duty. The preponderance of the probative and competent evidence therefore weighs against the claim, and the claim must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs