Citation Nr: 1215631 Decision Date: 05/01/12 Archive Date: 05/10/12 DOCKET NO. 06-37 029A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a nervous disorder, including schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from February 6, 1978 to March 31, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the VA Special Processing Unit (Tiger Team) at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which determined that new and material evidence had not been received to reopen a claim of service connection for a nervous condition, including schizophrenia illness. The Board's decision of December 2009 reopened the Veteran's claim, and then denied the claim on its merits. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) the extent denying his claim. Through a November 2011 Memorandum Decision, the Court remanded this case back to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board is remanding this case because it requires a VA medical opinion which addresses the proper analytical framework for evaluating claims for service connection under VA law, including with regard to disability which has preceded entrance into military service. This is to be accomplished in response to the concerns raised within the Court's November 2011 Memorandum Decision. As an initial matter, the Board observes that service connection generally may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2011). Service connection is available for a preexisting condition provided it was aggravated during service beyond its natural progression. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under VA law, every person employed in the active military, naval, or air service 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, 1137. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). When there is for consideration for service connection an alleged congenital disorder, there is a distinction to be made between whether it constitutes a congenital "defect" or "disease." A congenital disease is capable of improving or deteriorating, whereas a congenital defect is "more or less statutory in nature." See VAOPGCPREC 82-90 (July 18, 1990). It has been recognized that service connection may be granted for congenital diseases, provided initially incurred in or aggravated by military service. The presumption of soundness applies to congenital diseases that are not noted a entry. Id. See also Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The Court has further held that "the presumption of soundness does not, however, apply to congenital defects, because such defects 'are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111." See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Meanwhile, in very limited circumstances service connection is still permissible for a congenital defect where there has been aggravation of the pre-existing condition by superimposed disease or injury. See again, VAOPGCPREC 82-90; see also Martin v. Principi, 17 Vet. App. 342, 328-29 (2003). The determinative issue in this case is whether the Veteran's current mental health disorder, diagnosed by several treatment providers primarily as schizophrenia, is etiologically related to his military service. The Veteran had active duty service in the Marine Corps from February 6, 1978 to March 31, 1978. The medical evidence prior to service includes a January 1977 forensic psychiatric record from prior to entrance into military service at age 18, indicating admission from a local jail following an incident in which there was a physical confrontation between the Veteran and a family member involving a deadly weapon. The Veteran had been in jail twice in the past because of fighting. The final diagnosis was an adjustment reaction of adult life. It was the opinion of the psychiatrist that the Veteran was well aware of the charge against him, understood the proceedings of the Court and was competent to stand trial and aid in his defense. Service treatment records (STRs) reflect that on medical examination for induction in January 1978 the Veteran was not observed to have had any pre-existing mental health condition. Prior to his separation two months later, there was a March 1978 notation made in the clinical records of STRs that the Veteran had been examined and was considered physically qualified for separation from active duty, with no defects noted "that would disqualify you from the performance of your duties or entitle you to disability benefits from the naval service." An accompanying statement did further list as "illness or injuries suffered while on active duty" those of headaches and mild lumbar strain. On March 28, 1978, the Veteran appeared before an Aptitude Board, during which it was determined that the Veteran's general qualifications did not warrant retention in the service. It was further denoted that the Veteran was not in need of hospitalization and had not completed recruit training, and that "the Veteran's condition [unspecified in the report] existed prior to entry into naval service and had not been aggravated by service." The Veteran's Form DD-214 (Report of Separation from Service) indicates that he received a General Discharge, with the reason for separation being "unsuitability - apathy, defective attitude or inability to expend effort constructively." In September 1979, upon the Veteran's petitioning with the Naval Discharge Review Board, the character of his discharge was upgraded to an "Honorable-Unsuitability" discharge. Subsequent to discharge from military service, the Veteran was administered a July 1978 court-ordered forensic psychiatry evaluation following his May 1978 arrest on charges of capital murder, robbery, rape, and burglary. The evaluation report recounted that in January 1978 the Veteran had enlisted in the service, and according to the Veteran's report he successfully went through bootcamp but then his uncle passed away and his mother needed his presence with the family, and he was given a hardship discharge. The Veteran denied any mental or emotional disorder. A psychiatric exam was completed. At that time, thought processes were intact, there was no indication of significant depression or suicidal ideation, and there was definite suspiciousness in feelings of injustice but associated with real events and not paranoid psychosis. There was an understanding of the trial process and the need for an attorney. It was felt that any behavior the Veteran exhibited would be his decision rather than a product of mental illness. The diagnostic impression was that the Veteran had no mental illness that could be diagnosed at this time and was competent to stand trial. In an affidavit offered one year later, the July 1978 evaluating psychiatrist stated that due to the intervening period of time and due to the possibility of deterioration of the Veteran during his incarceration, his prior diagnostic impression would no longer be probative of the Veteran's competency to stand trial at that time. Subsequent evaluations differed in their conclusions. Another court-ordered evaluation, a December 1978 psychological evaluation found that the Veteran's intellectual functioning had deteriorated, and he had some of the thought disorders characteristic of pre-psychotic or psychotic persons. A February 1979 follow-up evaluation by a neuropsychiatrist found no reason to believe the Veteran to be psychotic, although the basis to evaluate him was slight given his non-cooperation. In July 1979, the Veteran was referred for a neuropsychological evaluation by his attorney at the time, with Dr. R.I.E., clinical neuropsychologist. The accompanying report observed in part, that the Veteran's difficulties with tasks of intellectual functioning could well have resulted from a head injury which he sustained in 1976. Further observed was that from analysis of past history the Veteran's behavior was becoming more inappropriate of late, and the neuropsychologist was unable to say whether this had been a gradual and continuous deterioration, but there were suggestions of psychotic thinking. Further observed (later in the report) was that the Veteran's prior head injury potentially had resulted in decreased intellectual capacity which could well have made it impossible for him to have undertaken a series of actions which involved preplanning and serial ordering. The opinion continued that "thus, once he entered the setting where the murder took place - with his inability to plan and his extreme defensiveness - he could well have been carried along by the torrent of events. His explosive personality, described in earlier evaluations, could then have led him to be unable to control his actions. The inability to plan ahead could have produced a fear, then a panic, then a total inability to control his violent tendencies. The very nature of the murder and the way it was performed would certainly lead me to believe that the person who had done it was not in conscious control of his behavior. Thus, it would have been a psychotic act." The neuropsychologist further observed that the Veteran was not psychotic at the time of evaluation, but if placed in a stressful situation where his abilities were severely questioned he could respond with psychotic behavior again. Over the next few years the Veteran was diagnosed with a number of different disorders, to include adjustment disorder with disturbance of conduct; borderline personality disorder; acute paranoid disorder; schizophrenia, acute undifferentiated type; explosive and anti-social personality; conduct disorder; oppositional disorder; paranoid personality disorder; factitious disorder with psychological symptoms; and mixed personality disorder (borderline personality, anti-social personality and paranoid personality). On admission to the Kentucky Correctional Psychiatric Center in February 1986, the admitting diagnostic impressions were chronic paranoid schizophrenia and rule out organic brain damage. However, on discharge in April 1986, the final diagnosis was temporal lobe seizure disorder and passive-aggressive personality disorder. In November 1987, the Veteran was diagnosed with organic delusional syndrome. In 1988, the diagnoses were brief reactive psychosis, antisocial personality disorder; paranoid personality disorder; temporal lobe seizure disorder; and passive-aggressive personality disorder. Psychiatric treatment notes dated from 2000 to 2005 reflect diagnoses of paranoid schizophrenia and psychosis as a result of head injury. In his March 2006 correspondence, Dr. P.W.J., psychologist, indicated that the Veteran carried a diagnosis of schizophrenia, paranoid type, a most severe form of mental illness that may lead to extreme impairments in the areas of cognitive functioning, perceptual accuracy, judgment, affective control, appropriate social behavior, etc. According to the psychologist, scientific opinion was that schizophrenia was a genetically transmitted mental illness, which may or may not become activated in the individual's life as a result of environmental stressors. The greater the frequency and intensity of the stressors, given that an individual carried the recessive gene, the greater the likelihood that this gene would be activated during the individual's life. Thus, it was deemed likely that the biological foundation for the Veteran's illness was present since his birth and may have been activated by the stress experienced when progressing through Marine Corps boot camp after a lifetime of preceding stressors. Such episodes of severe mental illness activated after induction into the military were not uncommon. The psychologist further indicated that he had known the Veteran since the early 1980s though his work as a psychologist at the Kentucky Correctional Psychiatric Center, and was of the opinion that over the past 20-plus years the Veteran had chronically suffered from schizophrenia. Likewise, it was entirely possible that the Veteran's discharge from the Marines Corp was in some part due to the onset of this mental condition. Consequently, it was opined, it was also possible that the Veteran was suffering from schizophrenia at the time of the commission of his crime, as well as the time of the trial for his crime. In December 2006 follow-up correspondence, Dr. P.W.J. indicated the opinion that the Veteran had schizophrenia, paranoid type, chronic, in partial remission, from which he had suffered as a severe mental illness for many, many years. The psychologist further indicated that based on years of working with the Veteran in a treatment context and the information the Veteran had provided, it was his opinion that in all likelihood the initial onset of schizophrenic symptoms was shortly after enlistment in the service. According to the psychologist, the Veteran's discharge from the service just two months later suggested that the Veteran's mental state had deteriorated to such an extent that he was viewed as no longer fit for active duty. It was further noted that in May 1978, or some six weeks after discharge, the Veteran was legally charged with an extremely serious felony in which his untreated schizophrenia (of psychotic proportion) played a major role. According to the psychologist, as schizophrenia was a severe form of mental illness which possessed a genetic component coupled with an activating form of severe stress, it seemed very possible, if not probable, that the Veteran's period of active duty service played a substantial role in the manifestation of this life-long mental illness. The Veteran underwent a VA Compensation and Pension examination in December 2008 by a VA psychologist. The diagnosis given following a mental status evaluation was schizophrenia, and antisocial personality disorder. The VA examiner then provided the opinion that the Veteran's schizophrenia was not caused by, a result of, or exacerbated by military service. The stated rationale was that schizophrenia was a genetic condition that could not be caused by military service. Its symptoms commonly first exhibited themselves in early adulthood. Review of records indicated that the Veteran had a history of antisocial behavior and arrests prior to his entry in the military. On evaluations he stated that his parents thought he was "out of control" and in January 1977 was charged with wanton endangerment during a family dispute. Moreover, military records from the Veteran's active duty service did not indicate any referral for psychiatric services or evaluation. The Veteran's report on evaluations with others indicated he was discharged early for hardship after his uncle's death rather than for any inappropriate behavior or psychiatric symptoms. Also, the Veteran was charged with his current crimes in May 1978, and evaluation in July 1978 found him to not have any mental illness. Another exam of December 1978 noted possible pre-psychotic thought impairments, but did not indicate any diagnosis of psychotic or other disorders. The VA examiner considered that the Veteran had both a genetic predisposition for schizophrenia and a developing pattern of antisocial behavior prior to his entry in the military. These continued after the military. There was no indication of exacerbation of these conditions by military service. The Veteran appeared to have developed full symptoms of schizophrenia at some time after his incarceration. The Board's decision of December 2009 found the evidence weighing against this claim more probative than that weighing in favor of it, particularly given the findings of the December 2008 VA examination provider. The Court's November 2011 Memorandum Decision raises two apparent deficiencies with the Board's December 2009 decision, the first being the absence of any discussion of whether the Veteran's psychiatric disorder is congenital in nature, and if so, whether it constitutes a disease or defect. The second deficiency noted by the Court was the failure to adequately discuss the opinion of Dr. P.W.J. as the psychologist currently treating the Veteran, and the statement offered in July 1979 by Dr. R.E.I. a neuropsychologist who was then conducting a examination of the Veteran for purpose of fitness to stand trial in a felony case. The Board presently acknowledges that a more detailed decisional rationale will be forthcoming upon issuance of a final decision in this case. At this current stage, however, the Board requires a medical opinion that more definitively addresses the question of the etiology of the Veteran's post-service diagnosed schizophrenia. In particular, the December 2008 VA examiner's opinion, while based on review of the Veteran's actual service records, nonetheless sets forth the premise as part of its reasoning that schizophrenia as a genetic condition cannot be caused by military service. In fact, under VA law, service connection is possible to establish for schizophrenia as a congenital "disease" (as opposed to a "defect") based on original in-service incurrence. See VAOPGCPREC 82-90 (July 18, 1990). Thus, a medical opinion addressing whether schizophrenia was initially incurred in service may be necessary. However, if instead the examiner meant to communicate that schizophrenia was a fully developed syndrome (outwardly manifesting beyond just a genetic predisposition) even before entrance into military service, then the opinion should have addressed the question of aggravation of a pre-existing disability. The VA examiner's December 2008 opinion, as written, suggests the former scenario, in which schizophrenia did not pre-exist service. Regardless, to ensure a comprehensive opinion, the Board will request clarification on this point in the form of a supplemental medical opinion from the VA examiner. The examiner is also reminded that the fact that schizophrenia has a genetic component does not disqualify the Veteran from seeking service connection for the same condition. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(4) (2011) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should return the claims folder to the examiner who conducted the VA examination of December 2008 and request a supplemental opinion. The VA examiner is requested to review the contents of the Veteran's claims file, as well as a complete copy of the Board's remand. The VA examiner is then requested to provide an opinion responsive to the following inquiries: (1) Did the Veteran's schizophrenia clearly and unmistakably pre-exist entrance into active military service? (2) If the Veteran had such a pre-existing mental health disability, did this condition undergo in-service aggravation during military service (defined as a permanent worsening in severity, not due to the natural disease process)? (3) Provided there was no mental health disability pre-existing military service, then is it at least as likely as not (50 percent or greater probability) that the Veteran's schizophrenia is etiologically related to an incident of his service? In addressing the questions posed, the VA examiner is reminded that the fact that schizophrenia has a genetic component, even if it is recognized as a congenital "disease," under VA law does not disqualify the Veteran from seeking service connection for the same condition. In addition, please provide consideration of, citation to and discussion of the previous December 2006 opinion on causation offered by Dr. P.W.J. Please further comment upon the significance, if any, of the prior July 1979 statement of Dr. R.E.I. to the effect that the Veteran may have displayed signs of psychotic behavior within a few months after his discharge from service. ** Provided that the December 2008 VA examiner is not available, or is no longer employed by VA, obtain a medical opinion from another examiner that addresses the inquiries set forth above regarding the disability claimed. 2. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Thereafter, the RO/AMC should readjudicate the claim on appeal based upon all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).