Citation Nr: 18155940 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-21 414 DATE: December 6, 2018 ORDER Service connection for schizophrenia is denied. FINDINGS OF FACT 1. The Veteran had active service from January to August 2013. 2. Schizophrenia preexisted the Veteran’s service and was not permanently worsened by active service. CONCLUSION OF LAW Schizophrenia was not incurred in, caused by, or permanently worsened by active service. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Pursuant to 38 U.S.C. § 1111, and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran’s claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA’s General Counsel reasoned that § 3.306(b) properly implemented 38 U.S.C. § 1153, which provided that a preexisting injury or disease would be presumed to have been aggravated in service in cases where there was an increase in disability during service; however, the requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and did not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111, as in this case, requires VA to bear the burden of showing the absence of aggravation. Moreover, “temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.” Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Turning to the evidence, the Veteran claims schizophrenia was permanently worsened by active service. No psychiatric disorder was noted on an enlistment examination, so the presumption of soundness must be rebutted. The Veteran served from January to April 2013. Prior to service, a December 2012 progress note from a private provider contained statements from the Veteran’s mother detailing his behavior prior to his admittance to the hospital, including confusion, hallucinations, inappropriate responses to questions, and wandering. She also claimed that he said there were people on television although it was turned off. He also admitted to smoking marijuana. The physician noted that during the appointment that while the Veteran sat in his chair, he looked all around the room, appeared unfocused, and rocked back and forth, unable to keep still. The provider then recommended that his family take him to the nearest hospital emergency room. He was involuntarily admitted to a hospital in December 2012 with an initial diagnosis of psychosis NOS, and discharged with a diagnosis of psychotic disorder. His symptoms included hallucinations and he was observed to be acutely disorganized with circumstantial and tangential thought processes. Thus, the Veteran’s pre-service diagnosis was a brief psychotic disorder. The Veteran entered active duty in January 2013 and was hospitalized due to what was initially determined to be brief psychotic disorder twice while in service, first in January 2013 and again from February to April 2013. His final diagnosis during service was schizophreniform disorder without good prognostic features, evidenced by disorganized speech, paranoid delusions, ideas of reference, and negative symptoms for greater than one-month period but less than six months. The diagnosis was changed from brief psychotic disorder to schizophreniform disorder because the symptoms lasted more than 30 days, beginning in December 2012. Thus, although his diagnosis was different in service, this was due to the change in name because of the duration of symptoms rather than a separate psychiatric diagnosis. Further, there was no evidence to suggest that the disturbance was due to a general medical condition or the direct physiological effects of a substance. A review of this evidence shows that the Veteran had a psychiatric disorder prior to service, despite the lack of note on an enlistment examination. A matter of weeks separated his initial hospitalization for a psychiatric disorder prior to service and for his subsequent hospitalization during service. Thus, evidence shows a preexisting condition, and the presumption of soundness is rebutted. As noted above, service connection may still be warranted for a preexisting condition if it was permanently worsened by active service. The Veteran must have a current disability, which is shown, an in-service incurrence, and permanent worsening of the disability. He maintains a current disability of schizophrenia, which is a progression from the psychiatric disorder he was diagnosed with prior to service and treated for in service. As such, the first element is met. Next, the second element is an in-service incurrence. As discussed above, the Veteran was hospitalized for nearly all of his active duty service for psychiatric disorders leading to his honorable discharge from service. Specifically, he was hospitalized due to his psychiatric disorder twice while in service, first in January 2013 and again from February to April 2013. His symptoms during service included delusions that he was receiving messages from the television and hearing voices that told him to kill himself. While in the hospital, he also became distrustful of the medical staff and paranoid that other patients in the ward were talking about him. He believed television programs he watched and book he read were referring directly to him. Upon his February 2013 admission to the hospital, he was prescribed Risperdal, which reduced his paranoia and cleared his thought processes. He reported feelings of sadness since his entry into basic training, but denied depression. His final diagnosis was schizophreniform disorder without good prognostic features, evidenced by disorganized speech, paranoid delusions, ideas of reference, and negative symptoms for greater than one-month period but less than six months. He underwent a Medical Evaluation Board (MEB) and was discharged on the basis that a psychiatric disorder preexisted service and was not aggravated by service. As such, given that the majority of his time in service involved treatment of a psychiatric disorder, there is ample evidence of an in-service incurrence to potentially aggravate schizophrenia. Therefore, the second element of service connection is met. The last element – that the preexisting disability was permanently worsened by service – has not been met. In an August 2018 expert medical opinion undertaken to determine whether the Veteran’s disability was aggravated by service, the clinician found that the brief psychotic disorder and schizophreniform disorder were precursors to schizophrenia, with the changes in diagnosis due to the duration of symptoms. The examiner noted that schizophrenia was an organic, progressing neuropsychiatric disorder when not properly managed, characterized by a worsening of symptoms, and thus that it was not aggravated by service. He further reasoned that the symptoms of the psychosis predated enlistment, were diagnosed very quickly after enlistment and that the majority of the Veteran’s time in service was admitted to an inpatient psychiatric unit receiving care for his psychiatric disorder. Thus, he explained that this treatment helped and likely improved the psychiatric disorder rather than aggravating it. Therefore, any worsening of his disorder following separation from service was due to the fact he was not compelled to remain compliant with treatment. In summation, the examiner found that service did not permanently worsen the Veteran’s psychiatric disorder, and that any increase in symptoms was due to the organic progression of the disorder when not properly managed. Following service, private medical records show that the Veteran was admitted to a hospital due to psychosis, with a final diagnosis of schizophrenia, in September 2013. He was admitted again in July 2017 due to hearing voices, and in June 2015 for paranoia. In each of these cases, his final diagnosis was schizophrenia. The August 2018 VA medical expert has stated these show the natural progression of schizophrenia while not well-controlled by medication and physicians. In contrast, the Veteran claims his treatment is proof that his preexisting condition was permanently worsened by service. The Board has considered his lay statements that his disorder was permanently worsened by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer an opinion as to the etiology of any permanent worsening of schizophrenia due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical personnel who have examined the Veteran’s medical records during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to expert medical opinion and clinical findings than to his statements. As such, the medical records are more probative than the Veteran’s lay assertions of that his preexisting condition was permanently worsened by service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel