06-37 470

• Court: Board of Veterans' Appeals
• Decided: December 6, 2010
• Docket: 06-37 470
• Status: Unpublished

Opinion

Citation Nr: 1045642 Decision Date: 12/06/10 Archive Date: 12/14/10

DOCKET NO. 06-37 470 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas

THE ISSUE

Entitlement to service connection for a psychiatric disability.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A. Mecone, Associate Counsel

INTRODUCTION

The Veteran had active military service from March 16 through May 12, 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in January 2010. A transcript of that hearing is of record.

Procedurally, the Board notes that service connection for an inadequate personality was denied by way of a May 1978 rating decision. The Veteran did not submit a notice of disagreement (NOD), and therefore, the 1978 rating decision became a final decision. In January 1979 and February 1980, the RO denied applications to reopen the claim. In March 2005, the Veteran submitted another claim to reopen, and in June 2005, the RO denied the Veteran's claim to reopen after determining that no new and material evidence had been submitted.

A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2010); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). However, if, after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file at the time of the prior decision, VA is required to reconsider the claim. 71 Fed. Reg. 52455-52457 (Sept. 6, 2006) (codified at 38 C.F.R. § 3.156(c)).

In this case, additional relevant service department records have been associated with the claims file that existed at the time of the earlier decisions, but were not considered by the RO in its earlier rating decisions. Specifically, in November 2005, the Veteran's service personnel records were received from the National Personnel Records Center. These records contained entries referencing mental and behavioral problems. As such, VA must reconsider and evaluate the Veteran's claim for service connection on the merits, rather than characterizing it as a claim to reopen. This is so because additional relevant service personnel records have been associated with the claims file that were not of record at the time of the prior denials. As such, the issue on appeal has been characterized as a claim for service connection on the merits.

FINDINGS OF FACT

1. The Veteran is currently diagnosed with schizophrenia that is not attributable to active military service.

2. The Veteran's in-service problems were attributable to a mental deficiency or personality disorder.

CONCLUSIONS OF LAW

1. The Veteran does not have an acquired psychiatric disability that is the result of disease or injury incurred in or aggravated by active military service; nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2010).

2. Mental deficiency or personality disorder is not a disease or injury within the meaning of applicable legislation; service connection is not warranted for either. 38 C.F.R. § 3.303(c) (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will attempt to obtain on behalf of the claimant, and (3) any evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 CFR 3.159(b)(1), removes the portion of the regulation which stated that VA would request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008).

The Veteran was apprised of VA's duties to both notify and assist in correspondence dated in April 2005 and June 2006. (Although the complete notice required by the VCAA was not provided until after the RO adjudicated the appellant's claims, any timing errors have been cured by the RO's subsequent actions. Id.) Specifically regarding VA's duty to notify, the notifications to the Veteran apprised him of what the evidence must show to establish entitlement to service connection, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The Veteran was apprised of the criteria for assigning disability ratings and for award of an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Regarding VA's duty to assist, the AOJ obtained the Veteran's service treatment records (STRs), service personnel records, and VA and private medical records. The AOJ attempted to secure records from the Social Security Administration (SSA), however, the SSA responded that the Veteran's medical records had been destroyed. In a July 2010 letter, the Veteran was notified that VA was unable to obtain his SSA records, and informed him that if those records were in his possession, he should send them to the VA. In July 2010, a VA examination with respect to the issue on appeal was obtained. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate as it was predicated on consideration of the STRs and VA and private medical records in the Veteran's claims file, and addressed all of the pertinent evidence of record, including the in-service notations referencing delusions and the Veteran's allegations regarding continuity of psychiatric symptomatology since service. Accordingly, the Board finds that VA's duty to assist with obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). In summary, no duty to assist was unmet.

II. Service Connection

The Veteran contends that his currently diagnosed psychiatric disability is attributable to military service.

The service treatment records contain an April 1971 report of psychiatric evaluation reflecting a diagnosis of severe immature personality disorder. The report noted that the Veteran was slow, with poor mental abilities for learning basic combat skills. Although a March 1971 Report of Medical Examination reflected a normal psychiatric clinical evaluation, an April 1971 Report of Medical Examination noted an abnormal psychiatric evaluation, with a diagnosis of severe immature personality. The service personnel records contain an April 1971 Discharge for Unsuitability, which shows that discharge was recommended because the Veteran was inadequate for military service. The commander who wrote the report stated that the Veteran had delusions, and believed that his grandfather, who had been dead for six years, talked to him. The commander also noted that the Veteran saw angels and his next door neighbor, and was very childish acting and did not comprehend the subject matter being taught. An April 1971 Certificate by a Commanding Captain noted that the Veteran had an inordinate fear of weapons, which was so deep seated that the commander doubted it could be overcome without extensive psychiatric help. He stated that the Veteran lived in a dream world of the immature, but went one step farther in that his mental day dreams were bizarre and totally real to him. The commander stated that all situations that placed any sort of stress on the Veteran affected him to the point where he became almost paralyzed with fear. He also noted that classroom instruction was over the Veteran's head mentally and he did not have an attention span that made him trainable.

Another April 1971 statement by a commanding LTC noted that the Veteran dropped out of high school because the courses he was taking were much too advanced for his learning ability. In addition to being and acting very immature, the Veteran was easily distracted during the interview and constantly moving and looking all around the office. The commander stated that the Veteran's answers to questions indicated that they were over his head and the questions had to be presented in a simpler manner. He reported that the Veteran was easily confused and that his normal reaction was that of a 13 or 14-year old. The commander concluded that the Veteran did not have the mental abilities to become a productive soldier and recommended discharge.

A Hospital Summary from the Jefferson Barracks VA shows that the Veteran was admitted December 23, 1977 and discharged January 6, 1978. The report shows that the Veteran underwent psychological testing, which indicated that his intelligence was limited, but that he had probably not had a psychotic break. He was diagnosed with probable mild mental retardation. A January 1978 Hospital Summary from Fort Leavenworth, Kansas VAMC, noted that the Veteran suffered from an adjustment reaction of young adult life, manifested clinically in the form of agitation and mild depression. Another Hospital Summary noted an admission from January 30, 1978 through February 27, 1978. The physician stated that although the Veteran was evasive, he showed no gross psychotic thinking and his associations were intact and there was no evidence of delusions or hallucinations, but he noted that the Veteran was mildly depressed and rather anxious.

In January 1995, a private physician S.V., M.D. at Delta Counseling Associates provided an Axis I diagnoses of Schizophrenia, Paranoid type, Depressive Disorder, not otherwise specified, and polysubstance dependence; and an Axis II diagnosis of mild mental retardation.

The Veteran was afforded a VA examination in July 2010, to determine whether any acquired psychiatric disorder was attributable to his time spent on active duty, and to also provide an opinion as to whether a psychiatric disability clearly and unmistakably pre-existed service, and if so, whether the evidence undebatably shows that the psychiatric disability did not undergo a chronic worsening during service.

The VA examiner noted that the Veteran was only in the service for one month and 21 days in 1971 with deficiencies with ability to learn military life, deficiency on the rifle range with fear of weapons, supposedly having delusions of a dead grandfather and neighbor. The examiner noted that the Veteran had been diagnosed with inadequate personality with use of alcohol and drugs. The VA examiner reported that the Veteran was not presently in treatment for any kind of psychiatric disorder. The examiner noted that in talking to the Veteran's sister, she was aware of a deterioration in functioning approximately five to six years after his discharge, which the examiner noted would coincide with his initial treatment as an outpatient in 1977. On examination, the examiner noted that the Veteran appeared to make comments particularly in reference to what he saw and heard, which would be compatible with someone of impaired mental functioning in the range of his more recent IQ testing. The examiner found that the Veteran did not appear to be depressed or anxious, although he rocked in his chair in a manner consistent with someone with a lower IQ. In summary, the VA examiner found that the Veteran was markedly impaired with low intellectual functioning possibly secondary to alcohol and drug use.

After examining the Veteran, and taking into consideration the information contained in the STRs, as well as his post-service psychiatric treatment, the VA examiner opined that the Veteran's current diagnosis of paranoid schizophrenia with depressive disorder did not appear to be traceable to the service references to delusions. It was felt that his in-service problems were more of a sense of being overwhelmed by his inadequate personality and high probability of a low IQ at that time. The examiner noted that he could not comment on whether there was a pre-existing disability by history and what was contained in the claims file.

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (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. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).

Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by active military service if shown to a compensable degree within one year of separation from qualifying active service. 38 C.F.R. §§ 3.307, 3.309.

Congenital or developmental defects, personality disorders and mental deficiency are not diseases or injuries within the meaning of applicable legislation and are therefore not disabilities that may be service connected. See 38 C.F.R. § 3.303(c).

Here, although the service treatment records contain a statement from the Veteran's commander noting that he experienced delusions, the 2010 VA examiner attributed the Veteran's in- service mental problems, including his delusions, to mental deficiency and personality disorder, not to other psychiatric disability. The VA examiner explained that the references to delusions and other in-service mental problems, were due to the Veteran being overwhelmed by his inadequate personalty and high probability of a low IQ at that time. After reviewing the service personnel and service medical records, the VA examiner believed that the in-service evidence of mental and behavioral problems were attributable to the Veteran's mental deficiency. There is no medical opinion of record which contradicts this examiner's opinion. In fact, the relevant evidence supports the VA examiner's assessment. For example, in addition to the in- service reference to delusions, the service records show that several different commanders questioned the Veteran's mental ability to learn basic army skills. Specifically, the April 1971 report of psychiatric evaluation noted that the Veteran was slow with poor mental abilities for learning basic combat skills, and in an April 1971 Discharge for Unsuitability, the commander stated that the Veteran did not understand the subject matter being taught. Finally, an April 1971 Certificate by a Commanding Captain noted that classroom instruction was over the Veteran's head mentally and he did not have an attention span that made him trainable. Here, the service records focus on the Veteran's inability to understand what was being taught, his poor mental ability, and his immaturity. As such, the service record supports the 2010 VA examiner's assessment that the Veteran's in- service mental problems were part of the same process as his mental deficiency.

In this case, the Veteran was ultimately discharged due to an inadequate personality after a determination was made that his mental deficiency made him unable to perform at the standard necessary for the Army. Further, a VA examiner determined that the in-service mental and behavioral problems were manifestations of the Veteran's mental retardation. As noted above, mental deficiency is not a disease or injury within the meaning of legislation that allows for the award of service connection for disability. See 38 C.F.R. § 3.303(c). Nor is a personality disorder. Id. Therefore, the Veteran cannot obtain an award of service connection on this basis.

Although the 2010 VA examiner failed to render an opinion as to whether the Veteran's in-service mental health problems clearly and unmistakably existed prior to service, the Veteran's in- service mental problems were found to be symptoms of his later diagnosed mental deficiency (as opposed to any acquired psychiatric disability) which may not be service connected.

Finally, as the earliest diagnosis of schizophrenia noted in the record is 1995; service connection on a presumptive basis due to a psychosis manifested to a compensable degree within a year of discharge from service is not warranted. 38 C.F.R. §§ 3.307, 3.309

Based on the above analysis, the Board finds that service connection for an acquired psychiatric disability is not warranted, and service connection may not be granted for mental deficiency or personality disorder. 38 C.F.R. § 3.303(c). The preponderance of the evidence is against the claim.

ORDER

Service connection for a psychiatric disability is denied.

________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs