Citation Nr: 1753816 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 04-37 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: John Berry, Esq. WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Appellant served on active duty for training (ACDUTRA) with the Arkansas Air National Guard from March 22, 21982 to July 7, 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Appellant was afforded a hearing before the undersigned Veterans Law Judge (VLJ) in January 2006. A transcript of the hearing is of record. In April 2016, the Board issued a decision denying service connection for the Veteran's psychiatric disability; the Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). By a November 2016 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board's April 2016 decision and remanded the case for action consistent with the JMR. The Board requested an advisory medical opinion in May 2017; this was received in August 2017. FINDINGS OF FACT Schizophrenia was initially manifest prior to the appellant's entrance into the National Guard and prior to his period of active duty for training and was not aggravated by that period of ACDUTRA. CONCLUSION OF LAW An acquired psychiatric disorder, to include paranoid schizophrenia, was not incurred in or aggravated by service. 38 U.S.C. §§ 101,1110, 1131, 1153, 5107 (West 2012); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2017); VAOPGCPREC 3-2003 (July 16, 2003). REASONS AND BASES FOR FINDING AND CONCLUSION Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C. § 101(26), (27). The Board notes that the advantages of certain evidentiary presumptions - such as the presumption of sound condition on entrance into service - generally do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (Citing Paulson, 7 Vet. App. at 469-70, for the proposition that, 'if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim.'). Therefore, the presumption of soundness (38 U.S.C. §§ 1111, 1132) is not available with respect to periods of active duty for training or inactive duty training. The presumption of aggravation under 38 U.S.C. § 1153 does not apply unless "veteran" status is established based on aggravation during ACDUTRA. To show "aggravation," a claimant has the burden to prove that the (1) preexisting disability worsened in service and (2) that such worsening was beyond the natural progression of the disease. Id. Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during active service. Although an ACDUTRA claimant does not need to show that his training proximately caused the worsening of the preexisting disability, the definition of aggravation in 38 U.S.C. § 1153, incorporated by 38 U.S.C. § 101(24), requires that an ACDUTRA claimant establish that there was a causal relationship between the worsening of the claimant's preexisting condition and his ACDUTRA and that the worsening occurred during his period of ACDUTRA. See Donellan v. Shinseki, 24 Vet. App. 167 (2010). In this case, the Appellant's service treatment records reflect his National Guard service was negative for any psychiatric problems, including a normal December 1981 entrance exam. A medical board report dated June 1984 shows that he attempted to enlist in the regular military service and told the recruiter that he had been taking an anti-psychotic prescription drug for several years. According to the medical board report, the recruiter then notified the Appellant's National Guard unit of this fact. The Board further notes that National Guard officials obtained medical records from the Greater Little Rock Mental Health Center which showed that the Appellant had begun receiving treatment for paranoid type schizophrenia in July 1981, prior to his entrance into the National Guard. Based upon these records and a clinical interview with the Appellant, he was discharged on account of medical disqualification for service in the National Guard. Moreover, the official form which was completed by the medical board officers indicates that the Appellant's paranoid-type schizophrenia initially manifested in approximately July 1981, that it existed prior to service, and was not incurred while the Appellant was entitled to basic pay. In view of the foregoing, the Board finds that the competent and credible evidence reflects the Appellant's paranoid schizophrenia clearly and unmistakably pre-existed his entry into the National Guard to include his 1982 period of ACDUTRA. The Board must now address whether this disorder was aggravated during this period as contended by the Appellant. The Board notes that in the aforementioned medical board report, under the heading, "permanently aggravated by service," the officer who completed the form indicated "yes." However, the accompanying narrative medical summary explains that the National Guard had no knowledge of the Appellant's disability until receiving the information from the recruiter. The summary also reflects that the Appellant did not take any of his anti-psychotic medication during basic military training, his only period of ACDUTRA in 1982. Moreover, the Veteran reported that the last exacerbation of his symptoms (inability to concentrate) occurred about 18 months prior ( approximately January 1983), which would have been five to six months after his period of ACDUTRA. The Board finds that the medical board report is unclear on the issue of aggravation even though the evidence appears to be against such a finding. The Appellant submitted a private medical opinion dated October 2009 from a Dr. Shea in support of a finding of aggravation. The doctor indicated he was familiar with the Appellant's medical history based upon having treated him since 1994. Dr. Shea also noted he had reviewed the Appellant's claims folder. Based on his review of the Appellant's records, the written accounts of his family and friends, as well as his own treatment and observation of the Appellant, Dr. Shea opined that it was more likely than not that the Appellant's military service permanently aggravated his schizophrenic condition. The physician noted that the stress of basic training would have been hard on anyone, but more so for someone with schizophrenia. Although the aforementioned opinion from Dr. Shea was not expressed in speculative or equivocal language, and he indicated familiarity with the Appellant's medical history, the rationale itself is not consistent with the confirmed medical history. In pertinent part, the written accounts from family and friends noted by Dr. Shea generally attest that the Appellant had no psychiatric problems prior to his entry into the National Guard. However, as detailed above there is clear and unmistakable evidence to the contrary to include his receiving medical treatment beginning in at least July 1981 at the Greater Little Rock Mental Health Center. Further, Dr. Shea's opinion does not address the fact that none of the Appellant's service treatment records document treatment for any psychiatric symptoms while actually on National Guard duty. Consequently, the Board must find that this opinion is entitled to little or no probative value. The November 2013 VA examination includes an opinion against the Appellant's pre-existing schizophrenia having been aggravated by his National Guard service. However, the opinion failed to address the June 1984 medical board report and the rationale was incomplete. The August 2017 medical opinion found that the Veteran's psychiatric condition was not permanently aggravated by his period of ACDUTRA. The psychiatrist noted a diagnosis and treatment for the condition prior to entrance into service, as well as his failure to note any psychiatric disorder or any medications on enlistment in the National Guard. Ultimately, the examiner found that his schizophrenia was not aggravated by his time in service, but flare ups in his condition were based on the natural progression of the disorder and his failure to comply with his treatment plan. The psychiatrist's opinion was based on a review of the Veteran's claim file and a chronological list of the facts. Treatment records submitted by the Veteran show that he was consistently prescribed antipsychotic medications since at least July 1981; however, the records show a prescription in early March 1982 (with a 360 quantity and zero refills) and then not again until January 1983. The Veteran underwent a psychological evaluation in November 1982; he was able to understand and complete the test instructions. Overall, the examiner noted that he appeared to function with high average range of intelligence but with poor judgment. Test results did not show active psychosis; however, he had reportedly experienced auditory hallucinations, withdrawal from his family and did not participate in student activities at school. His history and interview behavior were compatible with a diagnosis of schizophrenia, paranoid type, in remission. More recent treatment records indicate that he was stable and a high functioning individual with schizophrenia while remaining compliant with his medication. He continued treatment, being seen every few months. With respect to the Appellant's assertions that his schizophrenia was aggravated during his 1982 period of ACDUTRA, as well as supporting lay statements to include his family and a friend, the Board notes that these individuals have not been shown to have the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, these contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159 (a)(1). It also must be noted that of these individuals, only the appellant was present at his military training, and therefore, none of the others could have been in a position to observe any of the appellant's behavior and therefore could not know whether or not his presentation had changed during this ACDUTRA period. For his part, any current contention by the appellant that he exhibited any symptoms of paranoid schizophrenia during ACDUTRA is unsupported by the contemporaneous records, which the Board considers to be a more reliable reflection of the appellant's condition at that time. In summary, the in-service medical board report is not entirely clear upon the issue of aggravation, yet the service treatment records themselves do not appear to demonstrate any actual psychiatric treatment or complaints while the Appellant was performing his National Guard service. Records show that he was not taking previously prescribed medication for his condition during that period. Although post-service medical opinions have been submitted that both refute and support a finding of aggravation, the Board finds the August 2017 negative opinion is carries the most probative weight in the instant case. Consequently, the Board concludes the competent and credible evidence of record reflects the Appellant's pre-existing paranoid schizophrenia was not aggravated during his National Guard service to include his March 1982 to July 1982 period of ACDUTRA. No other basis for establishing service connection for the Appellant's acquired psychiatric disorder is demonstrated by the evidence of record, to include the secondary service connection provisions of 38 C.F.R. § 3.310. Therefore, the benefit sought on appeal must be denied. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs