Citation Nr: 1807335 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 13-13 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for a psychosis for the purpose of establishing eligibility for treatment. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Appellant served on active duty from August 1972 to April 1975. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded the case in April 2015, March 2016, and May 2017. FINDINGS OF FACT 1. The Appellant's personality disorder was not subject to superimposed disease or injury during service. 2. The currently diagnosed psychiatric disability, major depression disorder, is not related to active duty. 3. The Appellant does not have a current psychosis, and did not develop an active psychosis in service or within two years of service separation. CONCLUSIONS OF LAW 1. A chronic acquired psychiatric disorder was not incurred as a result of active military service. 38 U.S.C. 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for psychosis for the purpose of establishing eligibility for treatment are not met. 38 U.S.C. §§ 1702, 5107 (West 2014); 38 C.F.R. § 3.384 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant maintains that he has a current psychiatric disorder that had its onset during military service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection will be presumed for certain chronic diseases (e.g., psychosis) which are manifest to a compensable degree within the year after qualifying active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Military medical history Service treatment records show that on enlistment examination in August 1972, the Appellant was considered normal, psychiatrically. In January 1975, while the Appellant was awaiting disciplinary charges for AWOL, a psychiatric examination was conducted. The Appellant was alert, oriented in all spheres, and superficially cooperative. His insight was limited and his judgment was considered poor. There was no evidence of overt psychosis or severe psycho neurosis. The diagnosis was inadequate personality disorder, manifested by marked immaturity, some passive-aggressive features, such as conflict with authority and gross unconscious dependency needs, inadaptability, ineptness, lack of emotional stamina, as well as poor service adaptation and motivation. The condition was considered to have existed prior to service and not to have been aggravated by service. His personality disorder was of such magnitude and type that he was considered unsuitable for military service. During VA examination May 2016, the Appellant described his state of mind during service. He reported that during service, he began experiencing paranoid thoughts approximately 4 to 6 weeks before he went AWOL. He further admitted to use of acid during service. He stated that he would hide out for days at a time and would not perform his duties. Post service medical history Medical records associated with a March 1993 Social Security Administration (SSA) disability determination shows that the Appellant was referred for psychological evaluation. The Appellant indicated that began the consumption of alcohol as well as marijuana, hashish and hallucinogens during service. This behavior continued throughout the 1980's. He also began the use of methamphetamines. He denied a prior history of mental health treatment. The Axis I diagnoses included somatoform pain disorder, polysubstance abuse, and possible panic disorder with agoraphobia. The Axis II diagnosis was schizoid personality disorder. Updated SSA records were obtained in February 2013, which include a psychological evaluation report dated in February 1997. The diagnoses were deferred but the examiner noted that the Appellant did not appear to be psychotic. SSA evaluation was also conducted in February 1998. The Axis I diagnosis were social phobia; generalized anxiety disorder; rule out bipolar disorder not otherwise specified (NOS), atypical mixed episodes; and alcohol abuse. It was also noted that the Appellant's alcohol abuse seemed to be under control. However, he admitted that he started using crank. He reported that he consumed "crank" 3-4 times in the previous 2 months. The examiner did not agree with the earlier diagnoses of schizotypal personality disorder and somatoform pain disorder. The examiner did not feel that the Appellant met the full criteria for bipolar disorder. A series of psychological tests were conducted by VA in February 1998. The examiner commented that the primary diagnosis is avoidant personality with depressive features rather than schizoid or schizoaffective disorder. An examination was conducted by VA, the next month. The Axis I diagnosis was reported as polysubstance abuse/alcohol dependence. The Axis II diagnosis was avoidant personality disorder with depressive and psychotic features. Medical records from private facilities that date from 1998-2002 show treatment for variously diagnosed psychiatric disorders to include tobacco use, alcohol use, schizophrenia, schizoid personality disorder, anxiety depression with psychotic features, schizoid disorder with anxiety component, depression with psychotic components, paranoia with psychosis, schizoid type, schizoid affective disorder, depression, bipolar disorder, and obsessive compulsive anxiety disorder. Lay statements from the Appellant's friends and relatives were received in January 2010. They described the Appellant's behavior that they observed over the years, which included social isolation, memory loss, confusion, anxiety, hallucinations, and eating excessive junk food. A VA examination was conducted in September 2012. After reviewing the Appellant's medical history and conducting an examination, the psychiatrist stated: Patient exhibits classic profile for schizotypal personality disorder both by history, and in today's examination. Patient's pre military psychosocial functioning was also marginal which was determined by careful questioning regarding his childhood history. Patient demonstrates a pervasive pattern of social and interpersonal deficits marked by acute discomfort with reduced capacity for close relationships as well as by cognitive and perceptual distortions and eccentricities of behavior that began by his late teen years and presented later in life in a variety of contexts including the military as well as after the military. It is not felt that the military worsened his pre-existing character disorder, in fact with the structure the military provided, he actually did quite well for the first several years of military service. In May 2016, VA psychiatric examination with diagnostic evaluations was conducted by a PHD graduate candidate and psychologist. The examiners reconciled the various psychiatric diagnoses concluding that the Appellant current psychiatric disorders were schizotypal personality disorder, major depression, and alcohol use disorder. The examiners found that the Appellant personality disorder began prior to military service. While there were psychiatric manifestations during service, the examiners found that that the personality disorder did not worsen during service. They further concluded that there was no evidence of major depression for 17 years subsequent to service discharge and resulted from the personality disorder. The subsequently received VA outpatient records from 1997 to 2017 have included the previously mentioned psychiatric disorders . Service connection for a psychiatric disorder Initially the Board notes that primary substance abuse is deemed by statute to be the result of willful misconduct and cannot itself be service connected. See Gabrielson v. Brown, 7 Vet. App. 36, 41 (1994); 38 U.S.C. § 105 (a). A personality disorder is not a disease or injury for VA compensation purposes. However, 38 C.F.R. § 4.127 provides that a "disability resulting from a mental disorder that is superimposed upon... a personality disorder may be service connected." Here, the in-service psychiatric evaluation revealed a schizotypal personality disorder. The examiner determined that it existed prior to service and was not worsened by military service. This has been confirmed by VA examination in 2016. Moreover, the Appellant has reported that he exhibited anti-social behavior prior to entry into service. Accordingly, based on the Appellant's history and the service treatment record, the Board finds that schizotypal personality disorder pre-existed the Appellant's entry into active duty. Therefore, the next question is whether there was superimposed injury on the preservice psychiatric disorder. In this case, the evidence does not show a superimposed injury in service. Rather, the evidence points to the Veteran's willful abuse of drugs as relating to his mental state. Such is not considered a superimposed injury. Moreover, in-service as well as post service medical professionals have indicated that there was no worsening (superimposed injury) of the pre-existing personality disorder. The VA examiner's in 2016 considered the Appellant's complete medical history as well as his account of his inservice and post service symptoms. They acknowledged the inservice disciplinary problems, substance abuse, as well as the post service behavior noted by friends and relatives, but did not find that this represented a worsening of the underlying schizotypal personality disorder personality. The examiners also noted that according to the military personnel file, his performance increased significantly prior to service discharge, which is inconsistent with one who was experiencing psychological related to mental experience. "[T]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. " Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation; an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996). Importantly, 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. The Board has taken into consideration the Appellant's statements regarding his symptoms both during and subsequent to military discharge. Through the years, the Appellant has given inconsistent accounts of his behavior and symptoms during service and thereafter. The examiners at the 2016 VA examination listed the varying accounts he has reported at different examinations throughout the years. The Appellant's inconsistency in his statements lessens the credibility of his current statements regarding continuity when they are given in the context of attaining monetary benefits or other forms of compensation. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Board gives greater probative weight to the report and opinion of the evaluating VA professionals because of the consideration of the Appellant's pertinent medical and other history-as accomplished by reviewing the evidence in the e-file, but more so based on the discussion of the underlying rationale of the opinions, which instead is where most of the probative value is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The examiners also have medical expertise, which is another relevant consideration adding to this opinion's greater probative value. In regard to major depression, the Board finds that the claim of service connection for an innocently acquired psychiatric disorder, must also be denied. While the Appellant was noted to have a personality disorder in service, there was no innocently acquired psychiatric disorder noted in service. In years subsequent to service discharge, various psychiatric disorders have been reported, but none was ever attributed to service. The Appellant is shown to have continued to exhibit ongoing manifestations of a personality disorder subsequent to service (as evidenced by the 1993 SSA disability examination). Still further, the VA examiners in 2016 indicated that the current diagnosis of major depression only reached clinical significance in 1992. This is an extended period of time subsequent to service discharge. The examiners added that the Appellant's major depression is a result of his schizotypal personality disorder, which is not subject to service connection. As such, there is no basis for the grant of service connection for any of this identified psychopathology. The Board has also considered the fact that there is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and, again the lay statements of the Appellant, as well as his friends and relatives are insufficient to rebut this opinion given their lessened probative value. For these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. Accordingly, the preponderance of the evidence is against the claim of service connection for a psychiatric disorder. Entitlement to VA medical treatment for a psychosis under provisions of 38 U.S.C. § 1702 Under the provisions of 38 U.S.C § 1702 (a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War, who developed an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before May 8, 1977, in the case of a Vietnam era veteran, or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service. Under 38 C.F.R. § 3.384, the term "psychosis" is defined so as to include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. In the instant case, there is no evidence of a psychosis, to include a diagnosis of psychosis or symptoms thereof, during active service or within two years of service separation. In reporting his medical history in 2016, the Appellant reported bouts of paranoia during service but did not refer to any psychotic episode either during service or within 2 years of military discharge. He further indicated that he was initially prescribed anti-psychotic medications in 1997, which is 22 years after service discharge. (See May 2016 VA examination report.) As such, the criteria for service connection for a psychosis for the purpose of establishing eligibility for treatment pursuant to 38 U.S.C. § 1702 are not met. Because the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application. See 38 C.F.R. § 5107 (b); 38 C.F.R. § 3.012. ORDER Entitlement to service connection for a chronic acquired psychiatric disorder including major depression is denied. Entitlement to service connection for a psychosis for treatment purposes only under 38 U.S.C. Chapter 17 is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs