Citation Nr: 1819294	
Decision Date: 03/29/18    Archive Date: 04/05/18

DOCKET NO.  13-22 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for acquired psychiatric disability.


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from November 1958 to October 1960.

This matter comes before the Board of Veterans' Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that rating decision the RO denied reopening of a previously denied claim for service connection for acquired psychiatric disability. In November 2014, the Board granted reopening of a claim for service connection for a psychiatric disability. The Board then considered the reopened claim on its merits and denied service connection.

The Veteran appealed the November 2014 Board denial of service connection to the United States Court of Appeals of Veterans Claims (Court). Based on an April 2014 Joint Motion for Partial Remand from the Veteran and VA, the Court vacated the November 2014 Board denial of service connection and remanded the issue to the Board.

In October 2015 the Board remanded the case to the RO for additional action. The RO subsequently took action and then returned the case to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. The Veteran did not have onset of any chronic psychiatric disorder during service.

2. The Veteran's psychiatric disability found after service is not related to any symptoms or events in service.



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CONCLUSION OF LAW

The Veteran's current psychiatric disability was not incurred or aggravated in service, and is not presumed to be service connected. 38 U.S.C. §§ 1111, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

The RO provided the Veteran notice in a letter issued in September 2012. In that letter the RO notified him what information was needed to substantiate claims for service connection. The letter also addressed how VA assigns disability ratings and effective dates.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the claim. The RO substantially fulfilled the instructions in the 2015 Board remand.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Psychiatric Disability

The Veteran had active service in 1958 to October 1960. In 1967 he submitted a claim for service connection for a nervous condition and other conditions. He claimed that the nervous condition began in service in 1959. In 1969 the RO granted service connection for somnambulism with anxiety and depressive features. Over the following several years the RO changed the description of the psychiatric disability and continued service connection. In August 1975 the RO proposed severance of service connection for the psychiatric disability, then described as schizophrenia, paranoid type. In October 1975 the RO severed service connection for the psychiatric disability. The Veteran appealed the severance to the Board. In a May 1976 decision the Board denied restoration of service connection for an acquired nervous disorder.

In February 2012 the Veteran requested reopening of a claim for service connection for a psychiatric disability. As noted above, in November 2014 the Board granted reopening of a claim and denied service connection for a psychiatric disability. The Veteran appealed the decision to the Court. The Court granted a joint motion vacating the November 2014 Board denial of service connection and remanding that issue to the Board. In October 2015 the Board remanded the case to the RO. The RO took actions as requested and then returned the case to the Board.

The Veteran contends that his current psychiatric disability began during service. He also essentially contends that, if any psychiatric disability was present before he entered service, that disability was aggravated during service.

Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay 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 current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for certain chronic diseases, including psychoses, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of continuity may be legitimately questioned. 38 C.F.R. § 3.303(b). The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). When there is a preexisting injury or disease, it will be considered to have been aggravated by service when there is an increase in disability during service, unless there is a specific finding that the 

increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2017). In Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), the Court explained that, when no preexisting condition is noted upon entry into service, the burden falls on VA to rebut the presumption of soundness, which requires both clear and unmistakable evidence that an injury or disease existed before service and clear and unmistakable evidence that an injury or disease was not aggravated by service. The Court went on to state 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." Horn at 235. In such cases, the Court explained, the burden is on VA to establish by clear and unmistakable evidence that the disability did not increase in severity during service, or to establish by clear and unmistakable evidence that any increase in severity during service was due to the natural progress of the disease. See Horn at 235.

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

In a medical history completed in November 1958, for induction into service, the Veteran marked no for any history of nervous trouble. On the report of his service induction examination, the examiner marked normal for the Veteran's psychiatric condition. 

In March 1959, the Veteran had a mental hygiene consultation. He was interviewed by a social worker. The social worker reported that the Veteran was referred by his commanding officer (CO), who stated that the Veteran walked in his sleep, and on one occasion tried to choke another service member. The CO requested psychiatric treatment. The social worker indicated that that the interview was conducted in English, and that English language limitations of the Veteran, whose first language is Spanish, limited elaboration in his responses to interview questions. The Veteran reported that he had been sleepwalking for the past five or six years. He also stated that he had nightmares in which violence occurred. He related that on one occasion he dreamed that someone was about to stab his mother, and he was awakened by his mother, who told him that he had come to her bed and started beating her in the chest. The social worker noted inconsistencies between some of the Veteran's responses about his educational history. The social worker concluded that the Veteran was not concerned about the sleepwalking. The social worker could not find any problematic areas, and felt that psychiatric treatment would not have significant effect. On consultation with a social work officer, it was concluded that the somnambulism was not serious, and that the Veteran was not motivated for psychotherapy.

There is no record of further mental health treatment during the Veteran's service. In a medical history completed for separation from service, he marked no for any history of nervous trouble. On the report of the October 1960 service separation examination, the examiner marked normal for his psychiatric condition.

After service, the Veteran filed in November 1967 a claim for service connection for a nervous condition and other disorders. He indicated that he had treatment in service in 1959 for a nervous condition. He reported that after service he had received treatment for a nervous condition from 1961 on, from a Dr. D.

On VA examination in March 1969, the Veteran reported that since service in 1958 he had experienced nervousness, with insomnia, anxiety, irritability, and poor concentration. The examining psychiatrist summarized the 1959 mental health consultation. At the 1969 examination the Veteran stated that he was in his second year of studies at a university. He reported that presently he had nightmares, nervousness, insecurity, irritability, hostility, impaired concentration, crying spells, and a desire to shout. He stated that one occasion he attacked his wife during his sleep. He related that he woke up startled in the middle of the night. He stated that he felt fear of something that he did not know.

The examiner stated that the Veteran appeared somewhat tense and nervous, and that upon entering the office he began to weep. The examiner found that the Veteran was well oriented, relevant, and coherent, with fair memory and judgment, and no insight into his condition. The Veteran admitted to auditory and visual hallucinations, ideas of reference, and suicidal ruminations. The examiner provided a diagnosis of somnambulism with anxiety and depressive features, producing severe incapacity.

The Veteran had VA inpatient mental health treatment for 27 days in February and March 1972. On admission he reported being anxious, irritable, and physically and verbally aggressive with his wife and children. He related having insomnia and nightmares. He reported episodes of chest tightness and shortness of breath that were relieved by running away and screaming. A treating psychiatrist reported that mental examination was negative except for self-debasing ideas, anxious affect, anxious mood, impaired judgment, and poor insight. Treatment included medications. The psychiatrist described the degree of impairment as moderate.

On VA examination in June 1972, the Veteran reported that he took university courses from 1967 to 1971, but that he was not able to graduate. He reported nightmares, auditory and visual hallucinations, and persecutory delusions. He expressed feelings of hopelessness and suicidal preoccupations. He stated that at times he had outbursts of uncontrollable rage. The examining psychiatrist observed that the Veteran was cooperative, attentive, and in fair contact. He was poorly oriented in time. Memory, especially for recent events, showed defects. Concentration was very poor. He had a depressed mood, a fluctuant affect, and an increased rate of speech. He was easily in tears. Insight was lacking, and judgment was only fair. A history of dissociative episodes, including during military service, was noted. The examiner requested psychological testing. 

In August 1972, a psychologist reported that testing showed dull-average intellectual functioning, poor judgment, and weakened reality processes. The psychologist expressed an impression of schizophrenia with paranoid features. In September 1972, the June 1972 examiner reported having reviewed the testing results. The examiner provided a diagnosis of schizophrenia, paranoid type. He indicated that the diagnosis was considered a maturation of earlier mental disorder diagnoses.

In January 1973, the Veteran had four days of VA inpatient mental health treatment. He reported feeling restless and being bothered by the slightest noise or contradiction. He stated that he could barely sleep, and that he had quit work as a result. He reported that he had a hyperkinetic episode in which he turned destructive. During the hospitalization, he was oriented, with preoccupation, sadness, and expression of anguish. Treatment included medications. 

In January 1974, the Veteran had eight days of VA inpatient mental health treatment. He reported nervousness, irritability, insomnia, and nightmares. He stated that the symptoms had gradually worsened. A treating clinician found no evidence of active psychosis. Treatment included medications.

The Veteran had VA inpatient mental health treatment from March to June 1974. He reported restlessness, anxiety, aggressiveness, and nightmares. Treatment included medications. He had VA inpatient mental health treatment for 72 days in September to December 1974. Treatment included medications.

In April 1975, private psychiatrist M. A. C., M.D., evaluated the Veteran. The Veteran reported that during service he began to have nightmares. He stated that after service he worked odd jobs and studied at a university. He indicated that his psychological condition worsened over time. He stated that presently he was irritable, restless, and depressed, with hallucinations at times, and continuous suicidal and homicidal ideas. Dr. C. found that the Veteran's judgment and his insight into his illness were very poor. Dr. C.'s diagnosis was schizophrenia, undifferentiable type, chronic. 

The Veteran had VA inpatient mental health treatment for 52 days in March through May 1975. He reported anxiety, nightmares, and aggressiveness toward his family. A treating psychiatrist noted anxiety and paranoid tendencies. Treatment included medication.

In September 1975, private physician H. E. D., M.D., wrote that he had been treating the Veteran since 1960. (Dr. D.'s surname phonetically matches, though is spelled differently from, the name of the treating doctor the Veteran identified in his 1967 claim). Dr. D. stated that the Veteran had somnambulism. Dr. D. reported that on occasions the Veteran lost his self-control and gave the impression that he did not realize what he was doing. Dr. D. wrote that at such times the Veteran had to be hospitalized at VA.

In a January 1976 statement, the Veteran wrote that during service he had claimed to have had a nervous condition prior to service. He stated that the statement during service was untrue. He related that during service he heard two other soldiers plotting to kill him. He reported that he tried to kill one of them, and was caught. He stated that to avoid punishment he said that he was sleep walking.

In VA psychiatric treatment in August 2006, the Veteran reported a history of psychiatric treatment, with no treatment for more than ten years. He related a several month history of increased anxiety and sadness, with poor sleep and poor control of anger. A psychiatrist observed a sad mood and a constricted and tearful affect. The psychiatrist diagnosed depressive disorder, and noted the Veteran's report of a past schizophrenia diagnosis. The psychiatrist prescribed medications. On VA psychiatric treatment in September 2006, the Veteran reported irritability and depression. He denied hearing voices. A psychiatrist adjusted medications.

In February 2012, private physician C. E. M. Q., M.D., wrote that the Veteran received an early discharge from service, due to somnambulism with anxiety and depressive features during service. Dr. M. Q. stated that presently the Veteran reported nightmares, flashbacks, anxiety, and depression. He indicated that the Veteran had presented a psychiatric condition since service.

On VA mental disorders examination in May 2013, the examining psychiatrist found that the Veteran had depression and anxiety. The examiner reported having reviewed the claims file. The examiner provided the opinion that the current disorder clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated beyond its natural progress during service. The examiner explained that the Veteran had sought post-service mental health care in 1975, fifteen years after his service, and that there was no objective evidence of further sleepwalking after service.

On VA treatment in June 2013, the Veteran reported a long history of depression. He related crying spells, irritability, suicidal ideas, and auditory hallucinations. A psychiatrist provided a diagnosis of severe major depression with psychotic features. The psychiatrist adjusted medications that had been prescribed by a primary care physician. The Veteran was admitted for inpatient psychiatric treatment. He related that his auditory hallucinations were chronic but had bothered him more recently. He stated that in the 1970s he had inpatient treatment for schizophrenia. During treatment he reported improvement in his symptoms. He was discharged after several days.

In August 2013, private psychiatrist S. A. J., M.D., wrote that the Veteran did not have any mental illness prior to service. Dr. J. reflected the Veteran's report that during service he had recurrent nightmares related to name-calling and other mistreatment he experienced during service. Dr. J. noted that the content of the Veteran's nightmares was markedly violent and paranoid. Dr. J. expressed the opinion that, "far beyond any reasonable doubt," the Veteran's nightmares during service were the first manifestation of his present schizophrenia, paranoid type.

Records of VA treatment of the Veteran from 2014 to 2018 reflect outpatient psychiatric treatment, with diagnoses of depressive disorder and schizophrenia, and medications to address anxiety and psychotic disorders. He reported ongoing auditory hallucinations. Treating clinicians noted that he had a long psychiatric history.

On a VA mental disorders examination in October 2016, the Veteran was occasionally tearful. He reported that during service he was cursed at and mistreated. He indicated that presently he had auditory hallucinations. The examiner observed that he was oriented and coherent, with a depressed mood and poor judgment and insight, and no indications of a thought disorder. The examiner reported having reviewed the claims file. The examiner noted that the VA treatment records presently showed a diagnosis of recurrent major depressive disorder with psychotic features. The examiner expressed the opinion that it is less likely than not that the Veteran's current psychiatric disorder was incurred in or caused by his service. The examiner explained that there was evidence that the Veteran had somnambulism before service, and that the pre-existing condition was not aggravated during service.

No psychiatric disorder was noted on the report of the Veteran's service entrance examination. The Veteran's account in service in March 1959 of a several year history of sleepwalking constitutes some evidence that the sleepwalking issue noted in service existed before service. Later, in 1976, however, he wrote that he did not sleepwalk during (or before) service, and he had lied about that in service to avoid punishment for attacking a man he understood to be planning to harm him. The Veteran's differing accounts leave questions as to any sleepwalking history. Therefore the evidence that sleepwalking existed before service is not clear and unmistakable. As sleepwalking or other psychiatric issue was not noted on his entrance examination, and there is not clear and unmistakable evidence that such a disorder existed before service, the presumption that he was in sound psychological condition at entrance to service is not rebutted. He is presumed to have been in sound psychological condition when he entered service.

The Board next considers direct service connection, that is, whether a psychiatric disorder was incurred in service. The Veteran has current psychiatric disability, as established by post-service treatment and examination records. During service, an officer referred him for psychiatric treatment after he reportedly tried to choke a man while sleepwalking. The Veteran's differing accounts during and after service regarding sleepwalking call into question whether he did sleepwalk during service. The social worker who interviewed him concluded that there was no problem that warranted, or would likely be benefitted by, psychiatric treatment. No treatment or diagnosis in service ensued. At separation from service, the Veteran did not report any history of psychiatric problems, and the examiner found him to be in normal psychiatric condition. The evidence from the time of his service tends to indicate that no significant or lasting psychiatric problem was present during his service.

After service, from 1967 forward the Veteran asserted that he had a nervous disorder that began during service. Mental health clinicians noted psychiatric problems on VA examination in 1969 and in VA treatment in the 1970s. Since the 1970s he has had further psychiatric treatment from 2006 forward, as shown in VA medical records. According to his 1967 claim and Dr. D.'s 1975 statement, he addressed a nervous condition with Dr. D. beginning soon after separation from service. No available treatment records from that era have been submitted or identified, however. Without such records it is not possible to determine whether the Veteran had a disabling psychosis within a year after service. Therefore there is no basis to presume service connection for his schizophrenia. As a psychiatric disorder was not diagnosed during service, and as the earliest assembled mental health examination and treatment records are from at least several years after service, the evidence does not tend to show continuity between events in service and the post-service psychiatric problems.

Mental health professionals have provided differing opinions as to the likelihood of a connection between any disorder or events during service and the current psychiatric disability. Drs. M. Q. and Dr. J. supported a connection between problems in service and the current disability. The 2013 and 2016 VA examiners opined against a connection. There is no indication that either Dr. M. Q. or Dr. J. reviewed records from service or soon after. The VA examiners each reviewed the claims file, and discussed medical records from during and since service. The review and consideration of relevant medical records gives the opinions of the VA examiners greater persuasive weight than the opinions of the private clinicians. The Board finds that the preponderance of the evidence is against a nexus, and against incurrence in service. The Board denies service connection for the current psychiatric disability.


ORDER

Entitlement to service connection for acquired psychiatric disability is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs