Citation Nr: 1807756 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 11-06 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include schizoaffective disorder and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Sami, Associate Counsel INTRODUCTION The Veteran served in the Naval Reserves starting in 1987 and had a period of active duty from January 1991 to February 1991 when activated for the Gulf War. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. A September 2009 rating decision confirmed and continued the January 2009 rating decision, which in pertinent part, denied service connection for schizophrenia. The Board remanded the case in July 2014, September 2016, and April 2017 for further development. That development having been completed, the case has returned to the Board. Although a hearing before the Board was scheduled for February 2012, the Veteran did not appear, nor did she provide an explanation or request to reschedule. Therefore, the hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d). FINDING OF FACT The Veteran's preexisting psychiatric disability was aggravated during active service, and the record does not contain clear and unmistakable evidence that such aggravation was due to the natural progress of the disease. CONCLUSION OF LAW The Veteran has an acquired psychiatric disability that preexisted active service and was permanently aggravated by active service. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board's decision to grant the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is completely favorable, no further action is required to comply with the Veteran's Claims Assistance Act of 2000 (VCAA) and implementing regulations. II. Service Connection The Veteran asserts that she is entitled to service connection for a psychiatric disability, stating that her preexisting disability was aggravated by her period of active duty. See March 2011 VA Form 9 . The following evaluation of the Veteran's claim for service-connected compensation focuses on a period of four months, approximately from November 1990 to February 1991. The Veteran appeared for active training in December 1990. She was activated for duty in early January 1991 and stationed at Fort Dix, the staging area, where she was evaluated by a physician and psychiatrist. The record reflects that, despite attempts, these evaluations could not be obtained. However, the record shows that in late January 1991 the Veteran was sent to a Naval Reserve Center in Kansas to be discharged. See June 1991 Determination of Physical Qualification in the Naval Reserve. She was discharged from active duty in February 1991, and subsequently discharged from the Naval Reserves a year later based on a diagnosis of affective disorder with psychotic features. See January 1992 Record of Discharge from the U.S. Naval Reserve (stating "not physically qualified for retention by reason of Affective Disorder with Psychotic Features"). For the following reasons, the Board finds entitlement to service connection is warranted for an acquired psychiatric disorder. To establish entitlement to service connection for any disability on a direct basis, the record must contain competent evidence of (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. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The Board notes that in the prior September 2016 remand, the Board determined that the Veteran's period of service from January 1991 to February1991 was incorrectly classified as active duty for training (ACDUTRA). However, the Board found that "her service personnel records make clear that she was called to active duty rather than ACDUTRA in January 1991." See September 2016 Board Decision. In this regard, a veteran is 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 evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. See 38 C.F.R. § 3.304(b)(1). However, the recording of such a history in the entrance examination will be considered together with all other material evidence as to determine the inception of the disability at issue. See id. In order to rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the preexisting disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the disorder preexisted service and that the preexisting disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). VA may find a lack of aggravation under 38 U.S.C. § 1111 if clear and unmistakable evidence shows 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. Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153 (West 2014) and 38 C.F.R. § 3.306 (2014)); but see Horn, 25 Vet. App. at 238 (emphasizing that "neither the presumption of aggravation of section 1153 nor the regulation implementing that statutory provision, § 3.306, has any application to an analysis under the aggravation prong of the presumption of soundness in section 1111"). If this burden is met, then the veteran is not entitled to service connection. Wagner, 370 F.3d at 1096. On the other hand, if the presumption of soundness applies and VA fails to show by clear and unmistakable evidence that the disability existed prior to service, then the presumption has not been rebutted. See id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness under section 1111"). In that case, the claim will be considered as a normal claim for service connection. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied on the basis of a finding that the disability in question preexisted active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. Id. If the presumption of soundness has not been rebutted, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. See Gilbert v. Shinseki, 26 Vet. App. 48, 53 (2012) (citing Horn, 25 Vet. App. at 236). Nevertheless, the claimant must still establish a current disability related to the in-service injury or disease. Id. (citing Holton v. Shinseki, 557 F.3d 1363, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.")). The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Since no psychiatric disorders were identified at entry into active service, but the record shows, and the Veteran maintains, that her mental illness started prior to entry, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has not been rebutted. As noted, the Board determined that the Veteran served on active duty from January 1991 to February 1991. Additionally, the Board noted that there was no entrance examination for this period of service, although for her reserve period, there is an enlistment examination, dated June 22, 1987. See September 2016 Board Remand. Accordingly, the Board found that the "presumption of soundness attaches." See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). Furthermore, there is clear and unmistakable evidence that the Veteran's psychiatric disorder preexisted her active duty. In this regard, the Veteran does not dispute that her psychiatric disability preexisted her active service; rather, she maintains that she suffered psychiatric symptoms prior to her January 1991 entry. See March 2011 VA 9 Form (reporting that she experienced psychotic symptoms prior to entry and active duty). Additionally, the VA examiner agreed that the Veteran's psychiatric condition predates her active service. See October 2016 DBQ Mental Disorders Disability Benefits Questionnaire (DBQ) and May 2017 Addendum (explaining that prescriptions indicate that " the Veteran was being treated for a thought disorder (schizophrenia) and a mood disorder (depression)"). Without evidence to the contrary, the Board finds that the Veteran's psychotic disorder clearly and unmistakably pre-existed her active duty. Turning to the second prong of the presumption of soundness rebuttal, the record does not contain clear and unmistakable evidence that the Veteran's psychiatric disorder was not aggravated by service. In fact, the probative medical and lay evidence of record suggests otherwise. The Board is particularly persuaded by the statement of the Veteran's treating psychologist, Dr. C.G., who met with her shortly prior to active duty, as well as after discharge from active duty. In August 2010 correspondence, Dr. C.G. corroborated the Veteran's assertions concerning the increasing severity of her psychiatric manifestations, resulting from the stress of her active duty service. See August 2010 Comcare Dr. C.G. Letter. It appears that when Dr. C.G. met with the Veteran following her discharge in Febuary 1991, her mental state at this appointment had a particularly striking impression on him, as he remarked "it was experienced as being subjectively distressful by this psychologist and recorded in his long term memory as a result." Id. Moreover, the Veteran has asserted that her psychiatric symptoms increased in severity during her active service. See October 2017 Appellant's Post Remand Brief; March 2011 VA 9 Form. The Board notes that the Veteran is competent under the law to describe what she experienced while in military service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran is also competent to report experiencing psychiatric symptoms, as such symptoms are certainly capable of lay observation. See Davidson, 581 F.3d at 1316 and Jandreau, 492 F.3d at 1376-77 (finding that, in certain circumstances, lay evidence may be competent to establish a medical etiology); see also Washington, 19 Vet. App. 362; Layno, 6 Vet. App. 465; Barr, 21 Vet. App. at 307-08 (holding that lay statements are competent to establish the presence of observable symptomatology). The Board notes that there is a negative VA medical opinion of record in which the examiner opined that that Veteran's military service did not aggravate her condition. See October 2016 DBQ and May 2017 Addendum. As rationale, the examiner offered that the Veteran did not report any problems during service, that she felt sad to leave the Navy, and that there is "no evidence to suggest that stressors from her military service contributed to her mental health issues, lending support to the conclusion that there was a natural progression of the schizoaffective diagnosis." Id. However, other evidence in the record contradicts this portrayal. The Veteran and Dr. C.G. have stated that military activation contributed to her mental illness. The record also shows that while on active duty, the Veteran was having problems. While awaiting discharge orders at the Naval Reserve Center in Kansas, Commanding Officer J.G. observed that that Veteran "displayed numerous inappropriate behaviors" including arriving to work in mismatched uniforms, wandering off to "think things out" after being assigned a task, and not participating in drills. See June 1991 Determination of Physical Qualification for Retention in the Naval Reserve in the Case of [the Veteran]. See also Barr, 21 Vet. App. 303 (finding that the "Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Commanding Officer J.G. also related that when the Veteran was asked why she was not presenting for drills, she responded that she did not like the Navy anymore. See June 1991 Determination of Physical Qualification for Retention in the Naval Reserve. It is important to note that there is no indication in the record that the VA medical officer is somehow more qualified to opine as to the nature and etiology of the Veteran's psychiatric disorder than the private psychiatrist or psychologist. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no "treating physician rule" requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time, but it is permissible for the Board to bear this length of treatment in mind when considering just how familiar with the Veteran's condition the clinician may be). Thus, VA has not met its burden to rebut the presumption of soundness, as the evidence is at least in a state of relative equipoise as to whether the Veteran's psychiatric disorder was aggravated by active service. Therefore, the second element of service connection is established and benefits may not be deducted or denied on the basis of evidence of pre-existence of a psychiatric disorder. See Wagner, 370 F.3d at 1096. As to the first and third elements of service connection, the evidence reflects that the Veteran has a currently diagnosed psychiatric disorder, namely schizoaffective disorder. See, e.g., October 2015 Holistic Psychiatric Services Progress Note (reflecting current diagnosis of schizoaffective disorder, depressed type); October 2014 Comcare Psychiatric Support Treatment (therapeutic intervention discussing coping skills to manage symptopms of schizoaffective disorder); August 2010 Comcare Dr. C.G. letter (noting diagnosis in 2010 was Post Traumatic Stress and Schizoaffective Disorder). Further, a nexus between the Veteran's current psychiatric diagnosis and her period of active service is likewise established by Dr. C.G.'s statement. See August 2010 Comcare Dr. C.G. letter (stating that he corroborated the Veteran's account of "dealing with the stress of her military [service] triggered a psychotic break which was a fore runner to her present mental health difficulties"). This indicates that the Veteran's current psychiatric disorder is the result of or a continuation of the one she had in service. Accordingly, when the evidence in favor of a claim is equally probative as evidence against the claim, the benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, service connection is warranted for the Veteran's psychiatric disorder. ORDER Entitlement to service connection for a psychiatric disorder is granted. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs