Citation Nr: 0719597 Decision Date: 06/28/07 Archive Date: 07/05/07 DOCKET NO. 03-26 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from November 1995 to March 1997. This appeal is from a December 2002 rating decision of the Department of Veterans Affairs (VA) Denver, Colorado, Regional Office (RO), which denied the veteran's application to reopen a previously denied claim for service connection for an acquired psychiatric disorder. In February 2006, the Board of Veterans' Appeals (Board) found there was new and material evidence to reopen the claim and remanded the case for additional development. The veteran's March 2006 statement refers to a neck injury sustained in service. The matter of whether the veteran is raising a claim for service connection for a neck disorder is referred to the RO for appropriate action. FINDINGS OF FACT 1. No psychiatric disorder was noted at the time of entry into active service, and clear and unmistakable evidence establishes that any psychiatric disorder present in service existed before examination, acceptance and enrollment into service. 2. Clear and unmistakable evidence establishes that a preexisting psychiatric disorder was not aggravated during active service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA notified the veteran about ratings and assignment of effective dates, but not prior to adjudication of his claim. However, he is not prejudiced by this lack of notice because the Board is denying the claim for service connection, thus rendering moot any question as to assignment of ratings or of an effective date. VA satisfied the remaining duty to notify by means of a letter dated in July 2002, prior to the initial adjudication by the RO, addressing the claim at issue. The veteran was informed of the requirements of successful claims for service connection, i.e., of establishing current disability, incurrence or aggravation of disease or injury in service, and a link between current disability in service. He was informed of his and of VA's respective duties in obtaining evidence and asked to submit information and/or evidence, which would include that in his possession, to the RO. The content and timing of this notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Records and reports from VA and non-VA health treatment providers are associated with the claims file. The Social Security Administration reported that it has no records on the veteran. VA did not obtain a contemporaneous examination of the incarcerated veteran as the Board instructed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (veteran's right to performance of Board remand orders); see also Bolton v. Brown, 8 Vet. App. 185 (1995) (VA examination of incarcerated veterans). A contemporaneous examination is unnecessary in this case, because this decision will find the veteran has a current diagnosis that has persisted continuously since its onset prior to service, thus obviating the need for a current examination to diagnose or confirm current disability. VA obtained a medical opinion based on a review of all available records, which satisfied the primary object of the Board's remand. By assuming the best result for the veteran's claim reasonably to be expected from a contemporaneous clinical examination, this decision safeguards the veteran from any prejudice that might otherwise result from the lack of a current VA clinical interview and mental status examination. The Board concludes that the process and result of the examiner's review of the record was not tainted by the lack of current clinical examination, and the records review and opinion materially implemented the veteran's right to VA performance of the Board's remand. Stegall, 11 Vet. App. at 271. The instant case is distinguishable from Bolton, supra, in that Mr. Bolton sought an increased disability rating of a service-connected disorder for which an examiner's contemporaneous clinical impression was essential to resolve the claim. In the instant service connection claim, confirmation of the fact, not the severity, of current disability is the primary objective of the clinical element of the compensation examination and opinion. Whereas the most favorable facts for the veteran to be expected from contemporaneous clinical examination are deemed established for the purpose of this case, the medical opinion obtained satisfies VA's duty to examine the veteran and obtain a medical opinion when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4) (2006). Therefore, the Board finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2006); Dingess, 19 Vet. App. 473; Pelegrini II, 18 Vet. App. 112; Quartuccio, 16 Vet. App. II. Service Connection In seeking VA disability compensation, the veteran must establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 2002). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). In a November 1997 application for correction of his military records, in his November 2002 notice of disagreement, and in his September 2003 substantive appeal, the veteran has argued that he was mentally sound upon entrance into service and developed his current psychiatric disorder in service, or that he suffered aggravation in service of a pre-existing psychiatric disorder. In his substantive appeal, he argues that despite treatment for a series of depressive episodes prior to service, he underwent an enlistment examination and was accepted for service, went through basic and advanced individual training without experiencing psychiatric symptoms, and developed difficulty sleeping and then other psychiatric symptoms only after arriving in Korea six months after entering service, which demonstrates either soundness on entrance or aggravation of a preexisting condition. The most recent psychiatric diagnosis of record is schizoaffective disorder, reported in July 2002 by a licensed clinical social worker from the San Carlos Correctional Facility (SCCF). A March 2002 psychiatric assessment from SCCF states the full Axis I diagnosis as depressive Disorder NOS; Rule Out schizoaffective disorder; alcohol dependence. This is sufficient evidence to establish a current psychiatric diagnosis. Pond, 12 Vet. App. at 346. VA denied service connection for schizophrenia in April 1999, and the December 2002 rating decision from which this appeal stems denied service connection for "depressive disorder, not otherwise specified (previously schizophrenia)." In addition to the diagnoses mentioned thus far, the veteran's diagnoses have included adjustment disorder with mixed emotional features, given at Mental Health Corp. of Denver (MHCD) from February 1992 to January 1995, when the diagnosis changed to major depressive disorder with psychotic features from January to April 1995. In service, the veteran obtained a final diagnosis of schizophrenia, undifferentiated type. On VA examination in December 1997, the diagnosis was schizophrenia, undifferentiated single episode, in partial remission. Denver Health and Hospitals diagnosed unspecified type schizophrenia in March 1998, Bipolar II mood disorder, type II, current episode depression with psychotic features in April 1998, and Bipolar mood disorder, depressed with psychotic features in November 1998. Regarding the multiplicity of diagnoses, the instant claim is deemed to be for the same disability throughout the history of the veteran's claim. See Ashford v. Brown, 10 Vet. App. 120 (1997). This decision makes no attempt to distinguish among the several diagnoses as to specific symptomatology or time of onset as relates to whether one versus another diagnosis was incurred or aggravated in service, as the evidence is persuasive that such an attempt is futile. Cf. Mittleider v. West, 11 Vet. App. 181 (1998) (service- connected mental illness is rated for whole disability associated with mental illness when evidence does not permit clear attribution of portions of disablement to be attributed to discrete diagnoses). The evidence clearly establishes continuity of symptomatology with a condition noted in service. 38 C.F.R. § 3.303(b) (2006). Service medical records reveal the veteran denied any prior psychiatric problems or treatment on his June 1995 medical pre-screening questionnaire and in his entrance medical history, just two months after his last psychiatric treatment at MHCD. This was a misrepresentation of his psychiatric history upon entrance into service. In his substantive appeal, the veteran alleged that his pre-service psychiatric treatment was talk therapy only and that he was never prescribed psychiatric medication. The Board infers from this an assertion that his pre-service depressive episodes were temporary, not serious, and that he implies he was sound on entrance. The MHCD rescores of July 1992 to April 1995 reveal regular notation of the prescription and use of psychiatric medications. Given the misstatements of psychiatric history on entrance and his current misstatement of psychiatric history, the Board concludes the veteran is not a reliable historian, and his testimony is deemed credible only where independently corroborated. The veteran's June 1995 entrance physical examination was negative for mental illness. Consequently, he is presumed psychiatrically sound on entrance. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2006). The veteran developed insomnia in September 1996 while stationed in Korea. He suffered increasing symptoms resulting in psychiatric hospitalization. He manifested depression and psychotic symptoms including audio command hallucinations. The depressive symptoms were felt to be caused by the psychotic symptoms, because the depression abated with treatment of the psychotic symptoms. The final diagnosis of a Medical Evaluation Board (MEB), in pertinent part, was Axis I: schizophrenia Undifferentiated type as indicated by presence of auditory hallucinations, persecutory delusions, somatic preoccupations for greater than six months, and current observed disorganized thoughts and blunted affect. The MEB concluded the veteran's psychiatric disorder existed prior to service and was not permanently aggravated by service. A Physical Evaluation Board (PEB) concurred in January 1997, and the veteran was given a medical honorable discharge. In June 1999, the Department of the Army Board for Correction of Military Records reviewed the veteran's case upon his application for change of the finding of existed before and not aggravated by service. He asserted that his schizophrenia was not present at the time of his enlistment; that it was diagnosed while he was in medical hold status. The Board for Correction of Military Records affirmed and declined to change the PEB findings. For purposes of 38 U.S.C.A. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); see Wagner v. Principi, 370 F.3d 1989, 1096 (Fed. Cir. 2004); see also VAOPGCPREC 3-2003. "A preexisting injury or disease will be considered to have been aggravated by active military . . . service where there is an increase in disability during such 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.A. § 1153 (West 2002); see 38 C.F.R. § 3.306(b) (2006). "[A]n increase in disability must consist of worsening of the enduring disability . . . ." Davis v. Principi, 276 F.3d 1341, 1244 (Fed. Cir. 2002). The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. 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. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. "[S]ection 1111 applies when a claimed disability is not noted upon entering service, and section 1153 applies when the claimed disability is noted upon entry." Jordan v. West, 17 Vet. App. 261, 272 (2003) citing Joint Motion of the Parties, Oct. 27, 2002 (emphasis in original). As a practical matter, section 1153 and 38 C.F.R. § 3.306(b) would have no impact on cases in which the presumption of sound condition had been applied and rebutted. In such cases, VA would have been required under section 1111 to find by clear and unmistakable evidence that the condition was not aggravated by service in order to conclude that there was preexisting injury or disease. Such a finding would necessarily be sufficient to rebut the presumption of aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). VAOPGCPREC 3-2003 18. The plain language of section 1111 provides that the presumption of soundness is rebutted only if clear and unmistakable evidence establishes both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003. VA amended the regulation implementing the presumption of soundness in 2005 to make it consistent with the statute. See 38 C.F.R. § 3.304(b) (2006); cf. Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (Court raised the question of the proper interpretation of sections 1111 and 1153 and the validity of the pertinent part of 38 C.F.R. § 3.304(b) under that interpretation). Regarding the characteristics of clear and unmistakable evidence, "The word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). [T]he standard of proof for rebutting the presumption of soundness is not merely evidence that is cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable .... [and] the question is not whether the Secretary has sustained a burden of producing evidence, but whether the evidence as a whole, clearly and unmistakably demonstrates that the injury or disease existed prior to service. Cotant, 17 Vet. App. at 132, citing Vanerson, 12 Vet. App. 254 at 261. Clear and unmistakable evidence rebutting the presumption of soundness can be any evidence of record. The implementing regulation, 38 C.F.R. § 3.304(b) (2006), includes consideration of medical judgment, accepted medical principles, history with regard to clinical factors pertinent to basic character, origin, development of injury or disease, and "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." Adams v. West, 13 Vet. App. 453, 456 (2000). There is no absolute rule in the statute, the regulation, or the case law requiring contemporaneous clinical evidence or precluding medical opinion in rebutting the presumption of soundness. See Harris v. West, 203 F.3d 1347, 1349-51 (Fed. Cir. 2000). All the evidence of record is for consideration, including testimony, which can be competent or incompetent, credible or incredible. See Vanerson, 12 Vet. App. at 261. In February 2007, a VA psychiatrist reviewed the veteran's claims file. He noted the history reported above. He also noted the onset of the veteran's complaints of insomnia while stationed in Korea in September 1996 and the hospitalization in service of September to December 1996 with the increase of depressive and psychotic symptoms during hospitalization, his admission during hospitalization of hearing voices and of other symptoms for the past four years, and the MHCD diagnosis of 1992 to 1995 noted above. The examiner opined the veteran's schizoaffective disorder symptoms were clearly present prior to entering the military. He further concluded there is no evidence in the veteran's records that military service exacerbated or aggravated his psychiatric symptoms; his schizoaffective disorder, alcohol dependence, and personality disorder symptoms are not the result of his military service. The pre-service medical records are clear and unmistakable evidence that the veteran was not psychiatrically sound upon entrance into service. He presented with psychotic features just two months before entrance into service. Comparison of his symptom and the course of his treatment before, during, and after service reveal no substantial change in the severity of his mental illness. 38 C.F.R. § 3.306(b) (2006). The opinions of the MEB, the PEB, the Board of Correction of Military Records, and the February 2007 VA examiner make the evidence that the veteran's psychiatric disorder was not aggravated by service clear and unmistakable. The presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2006). The Board does not address the issue of aggravation under the provisions of 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b). The rebuttal of the resumption of soundness includes a factual finding that the veteran's claimed psychiatric illness was not aggravated by service. Sections 1153 and 3.306 can have no practical effect. VAOPGCPREC 3-2003. Finally, whereas the Board concludes that a psychiatric disorder preexisted and was not aggravated by service, 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2006), the veteran does not have disability resulting from disease incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002). Entitlement to service connection for a psychiatric disorder is not warranted. ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs