Citation Nr: 18152047 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-05 251 DATE: November 20, 2018 ORDER Service connection for an acquired psychiatric disorder, to include schizophrenia, bipolar disorder, and posttraumatic stress disorder (PTSD), is denied. VETERAN’S CONTENTION The Veteran contends that he currently has an acquired psychiatric disorder as result of an in-service incident at Fort Campbell, Kentucky which required hospitalization and surgery at Walter Reed Army Medical Center (AMC). FINDINGS OF FACT 1. The Veteran served on active duty from December 1977 to March 1979. 2. As provided in a September 1978 statement from Walter Reed AMC, the Veteran underwent laryngoscopy with neck exploration and suture of fractured thyroid cartilage following trauma to his larynx from a mop handle in July 1978 at Fort Campbell, Kentucky. 3. A September 1978 report of investigation into the July 1978 incident determined that the injury was incurred not in the line of duty and was a result of the Veteran’s own misconduct. A narrative of the incident indicates that the Veteran and another soldier had been drinking, went into another barracks, and began knocking on doors in an area reserved for female soldiers. After going back outside, the Veteran got into an argument and fight with a female soldier, drawing a large crowd. The Veteran went back to his barracks and returned with three more of his friends. The Veteran got into another argument and was being restrained from the crowd. The Veteran then broke away, yelled provocative statements at an individual and raised his leg as to kick him. The other individual struck the Veteran and the service department determined that this strike was in self-defense. At the time of the investigation, the Veteran declined to provide any statement regarding the incident. 4. During a February 2017 Board hearing, the Veteran testified that he had experienced mental health problems ever since the July 1978 incident. The Veteran’s representative stated that the July 1978 incident was a symptom of an internal problem at Fort Campbell which was mischaracterized as misconduct. The Veteran’s mother testified that, during the time the service department investigated the incident, the Veteran did not really have a choice and was told to sign prepared paperwork in order to be discharged. She further stated that she learned that the Veteran did not start the incident and that he merely went with some friends to confront other soldiers at another barracks, but the Veteran was the only one injured. 5. In May 2018, the Board of Veterans’ Appeals (Board) requested that a psychiatrist from the Veterans Health Administration (VHA) review the Veteran’s entire claims file, identify all of the Veteran’s current psychiatric disorders, and provide etiological opinions regarding a possible link between identified disorders and the July 1978 in-service incident. 6. In July 2018, Dr. Liegghio—Associate Chief of Staff for Mental Health at the Aleda E. Lutz VA Medical Center in Saginaw Township, Michigan—reviewed the Veteran’s claims file and responded to the May 2018 request. Dr. Liegghio stated that the following mental health diagnoses were documented by the Veteran’s medical treatment records: bipolar disorder; schizoaffective disorder; anxiety; polysubstance dependence; sedative/hypnotic dependence; opiod abuse; cocaine dependence; alcohol and heroin abuse; cannabis dependence remission age 30; substance-induced mood disorder, depressed type, with recent suicidal ideation; personality disorder; cluster B personality traits; antisocial; personality disorder not otherwise specified (NOS) with narcissistic and antisocial traits per history. Dr. Liegghio then commented that the Veteran’s record lacked identification of any mental health symptoms or diagnoses until many years after separation and that the Veteran’s documentation strongly suggested an attempt to identify a diagnosis that might be determined to have been caused or aggravated during active duty service. Following this description of the Veteran’s mental health history, Dr. Liegghio opined that a diagnosis of PTSD was more likely than not attributable to the July 1978 incident, but that this incident was a result of the Veteran’s own willful misconduct. Regarding the diagnoses of personality disorder, NOS as well as cluster B personality traits, antisocial and narcissistic, Dr. Liegghio stated that these were present prior to service and not attributable to his time in active service. Lastly, regarding the diagnoses of schizoaffective disorder and bipolar disorder, Dr. Liegghio commented that these disorders were not reported until many years after discharge. 7. A preponderance of the evidence indicates that the July 1978 incident was a result of the Veteran’s own willful misconduct. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R §§ 3.1, 3.102, 3.301, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board on appeal from an April 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction of the Veteran’s claims file resides with the Oakland, California RO. As mentioned previously, in February 2017, the Veteran and his mother testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection for an Acquired Psychiatric Disorder As indicated above, the Board finds that service connection for an acquired psychiatric disorder, to include schizophrenia, bipolar disorder, and PTSD, is not warranted. Accordingly, the appeal is denied. In support of this determination, the Board notes that establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service precipitating disease, injury, or event; and (3) a causal relationship, i.e., a nexus, between the current disability and the in-service event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). To establish service connection for PTSD specifically, the record must show: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Regarding the second element in both of the above standards, veterans are entitled to a presumption that injuries incurred during active service were “incurred in the line of duty.” 38 U.S.C. § 105(a); Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009). This presumption may be rebutted if VA demonstrates by a preponderance of the evidence that the in-service injury was caused by or resulted from willful misconduct or by abuse of alcohol or drugs. See 38 U.S.C. § 105(a); 38 C.F.R. § 3.1(m)-(n); Holton, 557 F.3d at 1367 (Fed. Cir. 2009); Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005) (supporting preponderance of the evidence as the proper evidentiary standard to rebut the line-of-duty presumption). 38 C.F.R. § 3.1(n) defines “willful misconduct” as “an act involving conscious wrongdoing or known prohibited action” and further provides that an act of “willful misconduct” involves “deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” In the instant case, the Board notes that, from Dr. Legghio’s July 2018 report and opinion, the record currently contains: (1) a confirmed diagnosis of PTSD; (2) an in-service incident, or stressor, that actually occurred; and (3) an opinion positively linking PTSD to the stressor. However, the Board finds that a preponderance of the evidence indicates that the July 1978 incident was a result of the Veteran’s own willful misconduct, such that the line-of-duty presumption has been rebutted in the instant case. In making this determination, the Board first notes that it lends no probative weight to Dr. Legghio’s characterization of the July 1978 incident, as willful misconduct determinations are made by adjudicatory factfinders and not medical professionals. Next, the Board notes that the September 1978 investigative report found the incident to not be in the line of duty and a result of the Veteran’s own misconduct. The investigator for the service department took statements from many witnesses and the Veteran declined to submit any statements. The report found that the Veteran had been drinking alcohol—although a blood alcohol content test was not administered— that he entered an area reserved for female soldiers, used inappropriate language and instigated a fight with a female soldier, was told to leave, returned to the scene of the first fight and instigated another fight, had to be restrained by other soldiers, broke free, and was struck by another soldier who acted in self-defense. The Board finds this behavior to fall within the definition of “willful misconduct” supplied by 38 C.F.R. § 3.1(n) as it involved a deliberate wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. The Board acknoweledges that the Veteran, his mother, and his representative all stated that the Veteran was not responsible for the July 1978 incident. However, the Board finds the report generated in September 1978 to be of more probative value as it was made in the immediate aftermath of the incident and was based upon statements from multiple parties who observed the incident. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). Moving beyond the possibility of service connection for PTSD, the Board notes that the Veteran has based his claim for any acquired psychiatric disorder on the July 1978 incident. As such, the willful misconduct determination also serves as a bar to service connection for any currently-claimed psychiatric disorder other than PTSD. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel