Citation Nr: 1805343 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 06-01 163 ) 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. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army National Guard (ANG) from May 1982 to September 1982, August 1985 to December 1985, and March 10, 1990 to March 31, 1990. The Veteran had additional service in the ANG, including active duty for training (ACDUTRA) from August 13, 1985, to December 12, 1985, June 11, 1986, to June 28, 1986, July 10, 1986, to July 26, 1986, April 11, 1987, to April 12, 1987, June 13, 1987, to June 27, 1987, and August 14, 1987 to August 16, 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In January 2006, the Veteran requested a hearing before a Veterans Law Judge. A review of the file indicates that the Veteran submitted a request to withdraw the request for a hearing in May 2006. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2017). In December 2014, the Board denied the claim, which the Veteran appealed to the United States Court of Appeals for Veterans Claims ("CAVC" or "the Court"). In July 2016, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Remand (JMR). FINDING OF FACT An acquired psychiatric disorder was not shown to have been diagnosed in service or a period of ACDUTRA; and the evidence fails to establish that the Veteran's currently diagnosed acquired psychiatric disorder is etiologically related to his active service or a period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but he withdrew his request for a Board hearing. The Veteran was also provided a VA opinion from a psychologist, Chief of Psychology, which the Board finds to be adequate for rating purposes, as the psychologist had a full and accurate knowledge of the Veteran's disorder and contentions and grounded her opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). While the Veteran's representative asserts that the opinion is not adequate as the Board requested an opinion from a psychologist, a review of the record shows that the Board requested an opinion from a VA psychiatrist or psychologist. As such, the Board finds that VA's duty to assist with respect to obtaining a VA opinion has been met. 38 C.F.R. § 3.159 (c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection for injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA) is warranted. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA is not defined at "active" service unless the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; VAOPGCPREC 3-03 (July 16, 2003). Only such conditions as are recorded in examination reports are to be considered as "noted." 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). A history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. 38 C.F.R. § 3.304(b)(1). Indeed, while a history of the pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such condition, such history is to be considered with all other material evidence when determining whether a condition pre-existed active duty service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The Court has held that the above statute regarding soundness requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe, 7 Vet. App. 238. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In other words, the presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). A pre-existing disease or injury is presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Furthermore, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered "aggravation" of the disease unless the underlying condition, as contrasted to symptoms, worsens. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Upon review of the record, the Board finds that the Veteran's acquired psychiatric disorder did not clearly and unmistakably proceed any of his periods of active duty service. A May 1982 Report of Medical Examination noted that the Veteran was psychiatrically normal. In a May 1982 Report of Medical History, he denied experiencing nervous trouble of any sort, or depression or excessive worry. He denied receiving treatment for a mental condition. In September 1983, the Veteran was psychiatrically admitted to C.S. Hospital "because he was anxious, heard voices, [and] was frightened and restless." He was diagnosed with alcohol and mixed drug abuse. A September 1984 Report of Medical Examination noted that the Veteran was psychiatrically normal. In a September 1984 Report of Medical History, he denied experiencing nervous trouble of any sort, or depression or excessive worry. He denied receiving treatment for a mental condition. A March 1990 Report of Medical Examination noted that the Veteran was psychiatrically normal. In a March 1990 Report of Medical History, he denied experiencing nervous trouble of any sort or depression or excessive worry. He denied receiving treatment for a mental condition. In December 1990, which is after his last period of active service, he was again found to be psychiatrically normal. He similarly denied experiencing nervous trouble of any sort or depression or excessive worry. In May 2017, a VA psychologist, Chief of Psychology, reviewed the Veteran's claims file. The psychologist reported that the Veteran first exhibited symptoms of schizophrenia in 1991, which was after his last period of active duty. The psychologist reported that there was clear documentation that the Veteran was diagnosed with cannabis abuse, stimulant use disorder, and alcohol use disorder prior to his active service, during his active service, and after his separation from active service. Service connection cannot be granted for an alcohol or drug-related condition as a primary disability. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(d); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (noting that 38 U.S.C. § 1110 precludes compensation for primary alcohol abuse disabilities, for secondary disabilities that result from primary alcohol abuse, and for willful misconduct). Accordingly, the Veteran's substance abuse disorders will not be addressed. The Board finds that the evidence of record does not support a finding that the Veteran's acquired psychiatric disorder clearly and unmistakably preceded any of his periods of active duty service. The Board has considered the personnel records describing the Veteran's problems in 1982 as well as the September 1983 psychiatric admission, as evidence that could potentially support a finding that the Veteran had an acquired psychiatric disorder at that time. However, because such a determination is medical in nature, the Board places great probative weight on the VA psychologist's opinion that the Veteran first exhibited symptoms of schizophrenia in 1991, which was after his last period of active service. Therefore, with the Veteran presumed to be in sound condition at each of his multiple inductions, the Board will next analyze whether the Veteran suffers from an acquired psychiatric disorder as a result of any period of active duty service. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). The Veteran asserts that his acquired psychiatric disorder is due to active service. Specifically, he asserts that his acquired psychiatric disorder was due to a fight that occurred in Korea during his last period of active service in March 1990. The Veteran's STRs do not show any symptoms, complaints, treatment, or diagnosis for an acquired psychiatric disorder during any period of active service. While his STRs show that he was involved in a fight in March 1990, three days prior to his completion of active service, his medical records do not show any psychiatric symptoms or complaints. Furthermore, at a December 1990 examination, he denied having any psychiatric symptoms and had a normal psychiatric examination. After his separation from service in November 1991, the Veteran was diagnosed with schizophrenia. An unsigned statement from May 2006 reads as follows: "After reviewing [the Veteran's] service medical records. It is in my opinion that his schiz [sic] is as least likely as not aggravated by his service in the Army. 50% chance that it happend [sic] or was aggravated by the service." In January 2008, the Veteran's physician Dr. J.R. reported that the Veteran's acquired psychiatric disorders were "at least in part aggravated by his service in the [m]ilitary." In December 2014, the Board denied the Veteran's service connection claim for an acquired psychiatric disorder based on the opinions of December 2012 and May 2013 VA examiners. The Veteran appealed this decision to the CAVC. In the July 2016 CAVC JMR, the parties agreed that a remand was required as the VA examinations in December 2012 and May 2013 did not comply with the Board's instructions in an April 2013 remand. As such, the December 2012 and May 2013 VA examinations will not be discussed. In response to the JMR, a new medical opinion was sought. In May 2017, a VA psychologist, Chief of Psychology, reviewed the Veteran's claims file. The psychologist reported that there was no evidence of treatment for an acquired psychiatric disorder during his active service. The psychologist reported that although the Veteran evidenced strange and unusual behaviors, that his behaviors may have been secondary to a multitude of reasons including his alcohol and drug use. The psychologist reported that the Veteran did not have a diagnosis of posttraumatic stress disorder (PTSD) as there were no records that the Veteran served in a war zone or records indicating that the Veteran experienced any trauma during his active service. The psychologist noted that the Veteran was involved in the altercation in Korea in March 1990, but he did not have any mental symptoms at the time. The psychologist reported that there was no medical evidence supporting a diagnosis of PTSD, no credible evidence of an in-service stressor, and no link of medical evidence between the reported in-service stressor and the current reports symptoms. The psychologist reported that the Veteran first displayed symptoms of schizophrenia in 1991. The psychologist reported that drug and alcohol abuse could produce symptoms which mimic other mental health disorders. The psychologist opined that the Veteran's schizophrenia symptoms were initially displayed in 1991. The psychologist reported that it was not likely that schizophrenia symptoms would have manifested in the three days after the altercation in Korea in March 1990. The psychologist reported that there was no evidence to support that symptoms were present. The psychologist reported that while the Veteran had unusual behaviors that may have contributed to this altercation, these behaviors were more likely related to his alcohol and drug use. The psychologist noted that the Veteran reported in October 1991 that he had been using crack cocaine for the previous four years and he was clearly using crack during the period of the altercation. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here several medical opinions are of record, all of which were provided by medical professionals who are presumed to have the training and expertise to opine psychiatric condition. As such, each opinion is considered to constitute both competent and credible evidence, which is deemed to be probative. However, the Board must determine what evidence is the most probative. After weighing all the evidence, the Board finds the greatest probative value in the VA psychologist's opinion, which considered the elements necessary to substantiate a claim for service connection. Regarding the unsigned statement from May 2006, the Board places little probative weight on this opinion because it is: a) anonymous and therefore not shown to be offered by someone competent to opine on such matters, and b) not supported by a rationale. This statement will therefore not be discussed further. Regarding the opinion of Dr. J.R., while the Board acknowledges the competency of Dr. J.R. to opine on such matters, the Board places little weight on his opinion because it is not supported by a rationale that explains which incidents of the Veteran's active duty service aggravated his acquired psychiatric disability. Moreover, Dr. J.R. did not quantify how it was determined that the condition pre-existed the Veteran's military service, and if so how it both manifested during service and how it was worsened during service. Dr. J.R. also failed to specifically address any of the STRs showing findings of normal psychiatric examinations. Additionally, as discussed above, the Board has concluded that the Veteran's acquired psychiatric disability did not proceed any period of active duty service, so aggravation of the Veteran's condition is not a possibility. After reviewing the clinical record, the VA psychologist's explicitly concluded that the record was silent for any treatment of an acquired psychiatric disorder during his active service. In addition, the VA psychologist's specifically noted that the STRs were silent regarding any acquired psychiatric disorder symptoms. Finally, the VA psychologist's opined that the Veteran's schizophrenia symptoms were initially displayed in 1991. The VA psychologist reported that it was not likely schizophrenia symptoms would have manifested in the three days after the altercation in Korea in March 1990. The VA psychologist's is shown to have reviewed and considered the pertinent evidence of record, and to have provided adequate rationale for her opinion. The Veteran's reported history was adequately considered. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As such, the VA psychologist's opinion is given greater weight. The opinion by the VA psychologist was fully grounded in the medical literature. The VA psychologist was fully apprised of the Veteran's in-service and post-service mental health symptoms, diagnoses, and treatment. The VA psychologist's clearly explained why she believed that the Veteran's acquired psychiatric disorder was less likely as not due to his active service, to include the altercation in Korea in March 1990. Here, the support provided by the VA psychologist for her opinion is found to be greatly superior to the opinion offered in support of the Veteran's claim by Dr. J.R., which did not provide an explanation or reasoning for the opinion and did not address the STRs showing normal psychiatric examinations. Given its grounding in the medical evidence in this case, the VA psychologist's opinion is found to be the most probative evidence in this case, and therefore is afforded the greatest weight. As a lay person, the Veteran is competent to report what comes to him through his senses, but he lacks the medical training and expertise to provide a complex medical opinion as to the etiology of an acquired psychiatric disorder. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In Jandreau, the Federal Circuit specifically determined that a lay person is not considered competent to testify when the issue was medically complex, as with an acquired psychiatric disorder. Therefore, while the Veteran disagrees with the conclusion that his acquired psychiatric disorder neither began during, nor was otherwise caused by, his active service, he is not considered competent (meaning medical qualified) to address the etiology of his acquired psychiatric disorder. As such, his opinion is insufficient to provide the requisite nexus. In summary, as the evidence is against the claim, service connection for an acquired psychiatric disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs