Citation Nr: 1757749 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-14 114 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The case is currently under the jurisdiction of the RO in Fargo, North Dakota. On the Veteran's March 2010 substantive appeal, he requested the opportunity to testify before a Veteran's Law Judge at a Travel Board hearing. A hearing was scheduled for June 2011. The Veteran did not attend the scheduled hearing, nor did he ask for it to be rescheduled. His request is thus considered withdrawn. In October 2013, the Board reopened the Veteran's claim of entitlement to service connection for a psychiatric disorder, and remanded for further development. In May 2016, the Board remanded the Veteran's claim for further development. Pursuant to the Board's remand, the agency of original jurisdiction (AOJ) scheduled the Veteran for appropriate VA examination, searched for outstanding VA treatment records, provided appropriate notice to the Veteran, and issued a supplemental statement of the case (SSOC) with regard to the claim for service connection for a psychiatric disorder, however diagnosed. Based on the foregoing actions, the Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran's psychiatric disorder clearly and unmistakably existed prior to active service. 2. The Veteran's psychiatric disorder clearly and unmistakably was not aggravated beyond its normal progression by active service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder are not met. 38 U.S.C. § 1111, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.306, 4.127 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in January 2014. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Lay assertions may also serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background Service treatment records show that the Veteran reported that he was in good health and denied any frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble on a July 1975 Report of Medical History for enlistment. On a July 1975 Report of Medical Examination for enlistment, psychiatric evaluation was found to be normal. On a September 1976 Report of Medical History for separation, the Veteran reported that he was in excellent health and also indicated frequent trouble sleeping, depression or excessive worry, and loss of memory or amnesia. On a September 1976 Report of Medical Examination for separation, the examiner reported that the Veteran had manic depressive illness. A January 1976 service treatment record reports that the Veteran was transferred to Letterman Army Medical Center on January 12, 1976 from Fort Ord Army Hospital with a transfer diagnosis of manic depressive illness. The Veteran reported that everyone noticed that he was hyperactive and that he was only getting two hours of sleep a day. The examiner indicated that the Veteran was noted to display hypomanic behavior characterized by hyperactivity, severe insomnia, emotional lability, anorexia, and marked grandiosity, especially in his self-appraisal. The Veteran indicated that he had a previous psychiatric treatment in 1974 with an approximately 11 day hospitalization with several subsequent months of outpatient therapy in Miami, Florida. The Veteran noted that since his enlistment in the Army, he gradually increased his ethanol intake and an apparent self-medication with persistent symptoms of agitation, restlessness, and loneliness. The examiner indicated that psychological testing performed was suggestive of a diagnosis of personality trait disturbance, probably of the passive aggressive type with the emotionally unstable type and that cyclothymic personality could not be ruled out. The examiner diagnosed the Veteran with manic depressive illness and chronic, episodic drinking. On an August 1976 in-service treatment clinical record, the Veteran was found outside of the hospital unconscious and was noted to have been drinking prior to being found. The examiner diagnosed the Veteran with manic depressive illness, manic type, that the disability existed prior to service and that the Veteran was being recommended for separation. In a 1982 Statement in Support of Claim, the Veteran reported that he enlisted in the Army in the hopes of being assigned to engineering. He indicated that he was assigned to become a medical specialist and became depressed and unhappy. The Veteran noted that he was assigned to work the psychiatric unit at Fort Ord. The Veteran reported that he was told by the Colonel to have himself admitted to the psychiatric unit and then the Colonel would ensure that he would have an honorable discharge so that he could enlist in the National Guard or Reserves to pursue his interest in engineering. The Veteran indicated that he did admit himself to the psychiatric unit and then he was transferred to Letterman Army Hospital where he was forgotten and drugged until they finally remembered him. On an October 2003 VA social work treatment note, the social worker noted that the Veteran had no history of psychiatric problems. On a March 2009 VA Mental Health treatment note, the Veteran referred to himself as bipolar and he recounted a negative reaction he had had to marijuana in active service, leading to hospitalization. On a June 2009 VA Mental Health Social Worker Note, the Veteran reported depression and insomnia. The Veteran noted that he had an allergic reaction to marijuana and that he was running around like a crazy person in the Army and that he ended up in the psychiatric ward. The Veteran indicated that while he was in the Army he was told to come in to be assessed for depression and he ended up being admitted to the psychiatric ward. The Veteran was diagnosed with depressive disorder, NOS (not otherwise specified). On a June 2009 VA Mental Health Clinician note, the Veteran reported problems related to anxiety and insomnia. The Veteran noted that he had an allergic reaction to marijuana and that he ended up in the psychiatric ward. The Veteran indicated that he was hospitalized for being bipolar in the Army. The examiner noted that the Veteran had a number of depressive symptoms, although the Veteran did not report feeling depressed in general. The Veteran was diagnosed with anxiety, NOS, and narcissistic truths. On a July 2009 VA Mental Health Clinician note, the Veteran reported that he had an allergic reaction to marijuana and that he became manic and he was held against his will for several months and then discharged from the Army. The Veteran was diagnosed with adjustment disorder, NOS, vs. insomnia. In a July 2009 Statement, the Veteran reported that he was stationed at Fort Ord, Monterrey, California, as a medic at the Silas B. Hayes Hospital during service. The Veteran indicated that he lived in the hospital dormitory with roommates who smoked cigarettes. The Veteran noted that as a nonsmoker the constant cigarette smoke would cause him to break out in hives, have difficulty breathing, make him physically sick, and cause sleep problems. The Veteran reported that his commanding officer at the psychiatric hospital suggested that he should voluntarily check himself in to the psychiatric ward for a couple of days in order to get some rest. The Veteran noted that the commanding officer said that he wished he could do something else but as there was no rule against smoking in the dorms, he could not offer much else. The Veteran indicated that his commanding officer mentioned that he believed the Veteran's irritation with his environment coupled with not being able to rest, seemed to create in him a "depressed solider." The Veteran reported that two days after the commanding officer made his recommendation, the Veteran was transferred to the psychiatric ward and that he was given sedatives to relax. The Veteran indicated that he was okay with the sedatives at first but then he was kept sedated every day and he did not know the reason for being sedated. The Veteran noted that he remained in the psychiatric ward for two and half months until he was transferred back to Silas B. Hayes Hospital and he was discharged from service. At an August 2009 VA Mental Health Disorders (Other than PTSD and Eating Disorders) examination, the examiner diagnosed the Veteran with delusional disorder (evident prior to military service). The examiner indicated that the Veteran's claims file was not available to the examiner prior to or during the time of the examination. The examiner noted that he reviewed the Veteran's claims file subsequent to the examination. The examiner reported that the Veteran had a pre-military history of bipolar disorder requiring hospitalization the year before he was inducted into military service. In a September 2009 Addendum opinion, the August 2009 VA examiner reported that the Veteran continued to manifest variations of the same hypomanic symptoms described of him while he was in the service prior to his discharge. The examiner indicated that, given that these symptoms, by history, appear to have existed prior to his service, it appears that the hypomanic manifestations of the bipolar affective disorder were less likely as not caused by or a result of his military service. The examiner reported that after review of the Veteran's claims file and the Veteran's verbal presentation at the examination, the examiner diagnosed the Veteran with antisocial personality disorder and probable malingering. The examiner noted that personality disorders are generally present at an early age and do not change significantly with the passage of time or tremendous effort on the part of the patient or therapist trying to assist in that change and that it is predictable that the Veteran has been this way his entire life. At a June 2016 VA Mental Disorders (Other than PTSD and Eating Disorders) Examination, the Veteran reported symptoms of depressed mood, chronic sleep impairment, mild memory loss, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner diagnosed the Veteran with unspecified depressive disorder. The examiner opined that it was less likely than not that the Veteran's diagnosed depressive disorder was incurred during service. The examiner reported that it is at least as likely as not that the Veteran's documented, "manic depressive illness" preexisted his time in the service. The examiner noted that it was less likely as not that that the Veteran's "manic depressive illness" in the service was aggravated beyond natural progression during service. The examiner reported that normally untreated bipolar disorder (i.e., "manic depressive illness") tends to get worse through multiple episodes of mania and/or depression. The examiner noted that the Veteran has essentially gone untreated all of his adult life, which suggests that the mental health problems he had in the military did not represent a chronic mental health condition. The examiner reported that it would be extremely uncommon for an untreated bipolar illness with mania not to result in multiple manic episodes if, in fact, it was a typical bipolar disorder. The examiner noted that there was evidence of depression over the years, usually in the content of unsatisfying life circumstances. The examiner noted that there was no way to determine what may have caused the Veteran's manic symptoms in 1976, but alcohol-induced problems could not be ruled out because alcohol was mentioned in passing in the available service treatment records. The examiner reported that the Veteran's current mental health condition is considerably better now than how it was described in 1976, so there is no current evidence suggesting aggravation. The examiner indicated that the Veteran's military personnel records note that he was discharged because of a pre-existing condition, i.e., manic depressive illness. The examiner noted that the Veteran's medical records written in 1976 noted a prior hospitalization for a probable prior manic episode in 1974, followed by treatment and that this appeared to be the reason that the Veteran's condition was considered pre-existing and it was the reason that his discharge was based on a pre-existing mental health condition. The examiner reported that the Veteran stated that he had a bad reaction to marijuana in 1976 and that this led to his hospitalization for two to three months and subsequent discharge from service. The examiner indicated that the credibility of the service treatment records seemed adequate. The examiner reported that the evidence indicated that the Veteran's mental health problems were as described in the records and that there is no evidence of a permanent aggravation of illness found in the records. In an August 2016 Addendum opinion, the June 2016 examiner opined that he did not believe that the Veteran ever actually had a chronic bipolar disorder and that the circumstances surrounding his symptoms, which were labeled as manic in service were not clear, and therefore the Veteran was not diagnosed with bipolar disorder. The examiner indicated that the record noted that severe alcohol abuse was active while the Veteran was in service, alcoholism was listed in the Veteran's separation records and that active alcohol use likely affected his mental health state. The examiner again noted that the typical course for bipolar disorder that goes untreated is that the person becomes progressively more disabled by the symptoms and that there is no evidence to suggest that this had occurred in the Veteran and that this implies that something else accounts for his symptoms. The examiner noted that he diagnosed the Veteran with unspecified depressive disorder to account for his depressive symptoms. The Veteran's depressive symptoms were related to chronic adjustment difficulties, perhaps because of his underlying characterological issues or undisclosed substance abuse. The examiner noted that the Veteran's depression symptoms could also possibly be simply a part of the mental health condition for which he was hospitalized prior to service which was determined at that time to be bipolar disorder and continued after service. The examiner indicated that the evidence suggests that the mental health condition regardless of its label did not get permanently worse during service or because of service. IV. Analysis The Veteran seeks entitlement to service connection for a psychiatric disability. Initially, the Board finds that the Veteran's psychiatric disorder during the period covered by this appeal is best diagnosed as an unspecified depressive disorder. Therefore, the requirement for a current disability has been met. Although the Veteran was diagnosed during service with manic depressive illness (i.e., bipolar disorder), this diagnosis was never assigned at any time in treatment encounters after discharge from service. A veteran is presumed 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 examination, acceptance, 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. § 1111; 38 C.F.R. § 3.304. This presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. Smith v. Shinseki, 24 Vet. App. 40 (2010). During the Veteran's entrance examination in July 1975, the physician who prepared the examination report indicated a normal psychiatric evaluation. Therefore no psychiatric disorder was noted during the clinical entrance examination and the presumption of soundness applies in this case. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that the disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Rather, the burden remains with VA to show by clear-and-unmistakable evidence that the pre-existing disease or injury was not aggravated by service. The Board finds that there is clear and unmistakable evidence that a psychiatric disorder preexisted service. A January 1976 service treatment record reports that the Veteran indicated that he had previous psychiatric treatment in 1974 with an approximately 11 day hospitalization with several subsequent months of outpatient therapy in Miami, Florida, prior to service. An August 1976 service treatment clinical record notes that the Veteran was diagnosed with manic depressive illness, manic type, that the disability existed prior to service, and that the Veteran was being recommended for separation. In August 2009, the Veteran underwent a VA mental health examination and the examining physician provided an opinion in the examination report. Following further clarification by the same examiner in a September 2009 addendum opinion, the examiner found, following examination of the Veteran and review of the claims file, that the Veteran continued to manifest variations of the same hypomanic symptoms described of him while he was in service and that these symptoms, by history, appear to have existed prior to his service. Further, in June 2016, the Veteran underwent a VA mental health examination and the examining physician provided an opinion in the examination report. Therefore, despite the fact that the Veteran's service treatment records reflect that no psychiatric disorder was noted at service entrance, a review of VA treatment records, and the Veteran's own statements indicate the Veteran had a psychiatric disorder prior to service. This is clear and unmistakable evidence that a psychiatric disorder preexisted service. Turning to whether the Veteran's psychiatric disorder was aggravated by service, the Board finds that the presumption of soundness is rebutted by clear and unmistakable evidence demonstrating that the pre-existing psychiatric disorder was not aggravated by service. The competent, probative VA medical opinions both concluded that symptoms pre-existed service based on the Veteran's reports that he had been previously treated and hospitalized for a probable prior manic episode before service. As such, the Board finds that the psychiatric disorder clearly and unmistakably pre-existed service. Furthermore, aggravation is defined as a permanent worsening beyond the natural progression of the disease or injury. As the competent, probative medical opinions all reached the conclusion that the Veteran's condition has improved since service, there is no permanent worsening of the disease. This improvement since service is demonstrated by the findings of no current manic depressive illness diagnosis on the most probative examinations as well as the fact that the Veteran has essentially gone all of his adult life without treatment of any type. As such, the evidence demonstrates that a psychiatric disorder clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.306. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, a layperson without medical training is not qualified to render a medical diagnosis or medical opinion concerning the etiology of a psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). The Veteran has asserted throughout the pendency of the appeal that he has a psychiatric disorder and that it first began in service. Here, the evidence does not show that the Veteran possesses the requisite training or credentials needed to render a competent opinion as to the diagnosis of a psychiatric disorder. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the lay opinions of the Veteran as to whether he has a current disability and, if so, when such disability had its onset, do not constitute competent medical evidence and lack probative value. Additionally, as some forms of psychiatric disorders may be categorized as psychoses, the Veteran could have a condition explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Therefore, the Veteran's statements regarding continuity of symptomatology may be sufficient for purposes of establishing service connection. Upon review, the Board finds the Veteran's statements regarding the onset of any psychiatric disorder have been inconsistent. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran first indicated in January 1976 that he had received psychiatric treatment and hospitalization for a psychiatric disorder prior to service. However, during the pendency of the appeal the Veteran's statements as to his symptoms changed to reflect reports of never experiencing any psychiatric symptoms until active duty. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board finds more probative the Veteran's statements made at the time he was treated for psychiatric illness in service, as they were both closer in time to the in-service event and the Veteran had no pecuniary interest. Additionally, even if the Veteran does have a current psychosis, the Board finds the evidence demonstrates that it pre-existed service, and was not shown post-service to a compensable degree within the first post-service year. 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Board finds that the Veteran clearly and unmistakable had a psychiatric disorder at service entrance that was clearly and unmistakably not aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). ORDER Entitlement to service connection for a psychiatric disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs