Citation Nr: 18157582 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 06-28 086 DATE: December 13, 2018 ORDER Entitlement to service connection for an acquired psychological disorder, including schizophrenia, anxiety and depression, is denied. FINDING OF FACT An acquired psychiatric disorder, to include schizophrenia, anxiety and depression, was not incurred in, or otherwise caused by, or aggravated by a period of active duty for training. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated during active duty for training. 38 U.S.C. §§ 101, 1101, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training from May 1976 to September 1976 and thereafter served on periods of inactive duty for training. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2008, the appellant and his wife testified before a Veterans Law Judge that is no longer with the Board. The appellant requested another hearing and that was conducted in April 2018 by the undersigned. Transcripts of the hearings are of record. In December 2009, the Board reopened the claim of entitlement to schizophrenia and remanded the claim for further evidentiary development. The issue was again remanded in August 2018 for procedural deficiencies. The issue is now back before the Board. With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The appellant seeks entitlement to service connection for an acquired psychiatric disorder, which he contends had its onset, or was aggravated, during his period of active duty for training, or while subsequently on inactive duty for training. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. 1110, 1131; 38 C.F.R. 3.303 (a). The term active military service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); Hansen-Sorensen v. Wilkie, 2018 U.S. App. LEXIS 34715 (Dec. 11, 2018) Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. When a claim for service connection is based on a period of active duty for training, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of active duty for training would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran” by virtue of active duty for training service alone. Id. See also 38 U.S.C. § 101 (2), (24); 38 C.F.R. §§ 3.1 (d), 3.6(c). Currently, the claimant is not service connected for any disorder. Thus, the appellant is not a “veteran.” 38 U.S.C. § 101 (2), (24) (A)-(B); 38 C.F.R. §§ 3.1 (d); 3.6(a). As such, the presumption provisions of 38 C.F.R. §§ 3.307 and 3.309, as well as the presumptions of soundness and aggravation, are inapplicable. Hill v. McDonald, 28 Vet. App. 243 (2016); Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). Instead, the burden is on the claimant to establish that he was disabled from a disease or injury incurred or aggravated in the line of duty during active duty for training, and to establish a causal relationship between the worsening of a preexisting condition and his active duty for training. Id. at 173-174. There is no shifting burden as there is when the presumptions of soundness and aggravation apply. Id. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). In deciding the appellant’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event; or, whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the appellant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions such as the etiology of an acquired psychiatric disorder. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). 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 and bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The appellant contends that symptoms of his acquired psychiatric disorder, diagnosed as schizophrenia, anxiety and depression, were first manifested during his period of active duty for training from February to September 1976, even though it was first diagnosed in 1978. Alternatively, the appellant contends that his acquired psychiatric disorder was aggravated by his inactive duty for training service. Service treatment records from the appellant’s first period of active duty for training are silent for complaints or treatment related to an acquired psychiatric disorder. Additional service treatment records show that the appellant had normal psychiatric evaluations in January 1976, August 1976, and February 1979. He had no complaints or history of depression or excessive worry or psychiatric trouble of any sort. A March 1978 private psychiatric hospitalization record noted the appellant’s suicidal ideations, delusional beliefs, and possible history of an underlying psychiatric disease, but no diagnosis was made. Following an April 1978 neuropsychological evaluation, the examiner was unable to determine the cause of the psychoses that had been followed by a left hemiparesis of unknown etiology. The examiner indicated that it could be related to a cortical event or to a seizure disorder. Later in April 1978, the appellant was hospitalized again and diagnosed as having organic brain disease, etiology unknown; and chronic schizophrenia, paranoid type. Private treatment records from December 1981 showed that the appellant was diagnosed as having an acute exacerbation of paranoid schizophrenia with auditory delusions and hallucinations. Private treatment records from December 1984 included a notation that the appellant had been found unconscious two floors below a window. A history of strokes and seizures was recorded. Also, private treatment records from January 1985 reflect that the appellant’s chronic schizophrenia was stabilized on Proloxin. An April 2006 statement from a private physician that listed the appellant’s diagnoses, which did not include schizophrenia. In January 2007, additional private treatment records were received from a private psychiatric center where the appellant was hospitalized from December 1981 to January 1982, January to February 1982, and in March 1982 and September 1986. The January through February 1982 records showed that the appellant had been withdrawn and heard voices. The March 1982 records also showed that he had hallucinations and that his acute psychosis was brought under control. In September 1986, he was brought in by police after he threatened to kill his mother; a long nine-year history of a psychiatric illness was noted. The appellant was referred to VA treatment. In a September 2008 letter a private physician opined that the appellant had developed normal pressure hydrocephalus and that it would explain his neurological symptoms, including poor coordination and memory loss. In October 2008, the appellant filed a claim for service connection for residuals of a traumatic brain injury. In February 2009, a VA psychiatrist diagnosed the appellant as having dementia, not otherwise specified, due to a history of head trauma; and a schizoaffective disorder. The physician also listed a premorbid weakness given the appellant’s history of longstanding difficulties in school and multiple vascular risk factors. The appellant had not had a reoccurrence of psychosis and appeared stable since his medication was changed to Geodon. During the December 2008 Board hearing, the appellant stated that schizophrenia developed during military service and that he had nightmares, depression, and auditory and visual hallucinations in boot camp due to the stress caused by the drill sergeant. He denied any prior psychiatric problems. He also alleged that the fall from the second story window happened during a period of active duty for training and that it worsened his psychiatric disorder. In a May 2009 statement, a VA physician noted the appellant’s ongoing treatment for head injuries and schizoaffective disorder. In a June 2009 statement, a VA physician opined that the appellant’s 1984 head trauma and longstanding cognitive impairment and dementia syndrome were most likely caused by his schizoaffective disorder and a brain injury. In an April 2013 opinion, a VA examiner opined that it was not at least as likely as not that any currently diagnosed acquired psychiatric disorder, to include schizophrenia, had its onset during, or was otherwise etiologically related to, the appellant’s period of active duty for training from February to September 1976 because there was no evidence of any episodes during that time period that would link such a condition to that period of active duty for training. The examiner also opined that the appellant’s mental health issues predated his enlistment and were not aggravated by his period of active duty for training. There is no competent evidence to the contrary. As an initial matter, the Board notes that the appellant has been diagnosed with acquired psychiatric disorder, including schizophrenia, anxiety and depression. As such, the Board finds the current disability element is established. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, after review of the foregoing evidence, the Board finds that the preponderance of the evidence is against a finding that the appellant’s acquired psychiatric disorder was incurred or aggravated during a period of active duty for training. Regarding the appellant’s period of active duty for training from February to September 1976, service treatment records from that period do not contain any complaints or treatment for any psychiatric symptoms. The Board acknowledges the appellant’s assertions that he first experienced symptoms during his period of active duty for training in 1976. The appellant has described experiencing nightmares, depression, and auditory and visual hallucinations in boot camp due to the stress caused by a drill sergeant. There is, however, no mention of these symptoms in his service treatment records. Moreover, the record shows that the appellant successfully completed his basic and advanced individualized training. He also continued to serve in the National Guard for six years. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that questions regarding the onset, diagnosis, and etiology of psychiatric disorders such as schizophrenia are complex and medical in nature. Hence, as a lay person the claimant is not competent to either diagnose a psychiatric disorder, or offer an opinion linking a currently diagnosed psychiatric disorder to service. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are ‘medical in nature’); Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). The April 2013 VA opinion that the appellant’s acquired psychiatric did not have its onset during his period of active duty for training is highly persuasive to the issue at hand. The April 2013 examiner detailed the appellant’s history of mental illness and explained that the appellant likely had schizophrenia prior to joining the service. The examiner categorically stated that the claimant’s mental health issues were not casually linked to any incident of the appellant’s service, to include trauma. The examiner explained that “it is a well-known fact that schizophrenia prodromal has active and residual phases. The prodromal phase usually starts when a person is 18-20 years of age. The examiner then explained that there was evidence that the appellant had a prodromal phase of schizophrenia before he joined. The examiner continued to explain that, “The natural course of schizophrenia is gradual deterioration, which is the case with this [claimant]”. “There is no reasons or bases requirement imposed on examiners.” Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012). Rather, an adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s consideration and weighing of the report against any contrary reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding, in the context of weighing one medical opinion with another, that “[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion”). The VA medical opinion was thorough, it was supported by an explanation, it was based on a thorough review of the claims folder, it acknowledged the appellant’s lay statements regarding the onset of his symptoms, and it was accompanied by a sufficient explanation and reference to pertinent evidence of record. Id. Regarding the issue of whether the appellant’s period of active duty for training aggravated his acquired psychiatric disorder, the presumptions of soundness and aggravation do not apply in this case as a matter of law, and the probative evidence of record weighs against a finding that the appellant’s acquired psychiatric disorder was aggravated beyond its natural progression by any event or injury during his period of active duty for training service. As relevant to this particular aspect of the appellant’s claim, a preexisting disease or injury will be found 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 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Evidence of the appellant being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease also does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board previously remanded this claim for further development on the issue of the timing of the appellant’s head injury, and other psychological symptoms, as related to his active duty for training service. VA requested additional personnel records from the Army National Guard. The personnel records included notation of several missed drills, reenlistment and discharge paperwork, and commendation from 1979 related to a prison state of emergency in 1979. None of the records reported any fall during any period of active duty for training or any indication that service aggravated the appellant’s mental health symptoms. The Board finds the April 2013 VA opinion to be probative on this issue. The discussion accompanying his opinion reflects that it was based on a thorough review of the claims file, and it is consistent with the evidence of record. Moreover, the examiner provided a clear, detailed rationale for the conclusions reached. Accordingly, it is entitled to great probative weight. Nieves-Rodriguez, 22 Vet. App. at 302-04 (holding that it is factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As noted, there is no competent medical opinion of record that contradicts the April 2013 VA opinion. Although the Board does not question the appellant’s sincere belief that his acquired psychiatric disorder permanently worsened following his period of active duty for training, his opinion on that matter is not probative and persuasive evidence. As discussed above, while lay persons are competent to provide opinions on some medical issues, the diagnosis and etiology of an acquired psychiatric disorder is complex. Thus, it falls outside the realm of common knowledge of a lay person, even one, as in the appellant’s case, who has had some medical training. Jandreau. In sum, the mere development of disability while a member of the National Guard, alone, is insufficient to warrant service connection for the purpose of disability compensation. In the absence of competent, credible, and probative evidence of an acquired psychiatric disorder having been incurred or aggravated during a period of active duty for training, the preponderance of the evidence is against the claim and service connection must be denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim, that doctrine is not applicable in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel