ptsd Private Psychologist Wins Over Va Ime Psychiatrist

[Josephine]

Citation Nr: 0614650

Decision Date: 05/18/06 Archive Date: 05/31/06

DOCKET NO. 96-02 947 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Houston,

Texas

THE ISSUE

Entitlement to service connection for a psychiatric disorder.

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Nancy Rippel, Counsel

INTRODUCTION

The veteran had active service from October 5, 1970 to

November 25, 1970.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision rendered by the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA), in August 1995, which found that new and material evidence had not been submitted to reopen a

claim of service connection for a nervous disorder. In July 1998, the Board found new and material evidence had been submitted to reopen the claim, and remanded the issue of service connection for a nervous disorder for additional development. That development has been accomplished, and the

case has been returned to the Board.

FINDING OF FACT

The competent evidence is at least in equipoise regarding whether a current psychiatric disorder, variously diagnosed, to include schizophrenia/schizoaffective disorder, is the result of a disease or injury incurred in service.

CONCLUSION OF LAW

The veteran is entitled to service connection for the psychiatric disorder variously diagnosed, to include

schizophrenia/schizoaffective disorder. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2005).

REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to notify and assist

VA has a duty to notify claimants for VA benefits of information necessary to submit to complete and support a claim and to assist claimants in the development of evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)

(2005). As this claim is being decided favorably in full to the veteran, the Board need not discuss whether VA has satisfied its duties under the VCAA. Any defect in this regard would constitute harmless error. See 38 U.S.C.A. § 7261((2) (West 2002).

II. Service connection

The veteran urges that his current psychiatric disorder is related to service. He alleges that, during his short period of time in the marines, he was subjected to stress and abuse that triggered schizophrenia, first diagnosed in 1971, and his present psychiatric illness, including schizoaffective disorder. He has explained that he was the object of ridicule by his superiors and peers in the platoon because he

suffered from enuresis and nervousness. Those conditions are documented in the record. His treating psychiatric health care provider has opined, following a review of the record, that a current psychiatric condition is related to the short time in service. The Board notes that the veteran's first

hospitalization for schizophrenic type problems, in April 1971, reflects that his parents brought him in for treatment following a three to four month period of time in which he demonstrated depression and suicidal gestures.

The Board finds in the record sufficient evidence to put the claim into equipoise as to whether the current psychiatric disorder, schizoaffective disorder or schizophrenia, is related to service and thus, as set forth below, grants the claim.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110 (West 2002);

38 C.F.R. §§ 3.303(a), 3.304 (2005).

In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253

(1999); see also Pond v. West, 12 Vet App. 341, 346 (1999).

While service connection for certain chronic diseases, including psychoses, may be established in certain situations, based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service, the veteran is not eligible for this presumption because he did not meet the 90 day minimum service requirement built into 38

U.S.C.A. § 1112 and 38 C.F.R. § 3.307. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which

case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); VCAA. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin...such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2005).

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 appellant. 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).

Service medical records show that the veteran was treated for bedwetting and nervousness on October 28, 1970. A urinalysis was within normal limits. He was begun in an 'Enuresis Program.' On November 20, 1970, the veteran was found physically qualified for separation. He reported no change

since an earlier examination. He was separated for "Unsuitability." There were no comments from the medical officer.

Following service, the veteran was admitted to the Santa Rosa Medical Center with an admitting diagnosis of depressive reaction in April 1971. The discharge summary reflects that he had presented by his parents because he was feeling nervous and depressed, with some suicidal gestures,

particularly for the last three to four months. The veteran reported that he had felt that way since the seventh or eighth grade. The veteran reported no initiative, wanting to stay home and listen to music. He was irritable and withdrawn. He reported smoking pot on and off since the

ninth grade. The veteran was placed on multiple medications, including Librium, Quaalude, Thorazine, and Haldol, and also treated with electroshock therapy. The diagnosis was

schizophrenia, chronic undifferentiated type.

Thereafter, the record is replete with reference to ongoing mental health problems, including substance abuse (reported as in remission for many years), major depression, bipolar,

schizoaffective disorder, schizophrenia, post-traumatic stress disorder (PTSD), and others. He has been declared disabled due to the Social Security Administration since 1988 for recurrent major depression.

Two medical opinions have been added to the record in 2005. These address the likelihood of whether any of the current psychiatric diagnoses are related to service. One is an

independent medical opinion (IME) obtained by the Board, the other is an opinion in response to the IME, obtained by the veteran. The IME, dated in August 2005, was authored by psychiatrist Stanley P. Oakley, Jr., M.D., who reviewed the claims folder. Dr. Oakley opined that the veteran's current

psychiatric diagnoses include in pertinent part Axis I diagnoses of schizoaffective disorder, and mixed substance abuse, in remission, Axis IV diagnosis was chronic mental illness. Dr. Oakley opined that the mixed substance abuse may have pre-existed service but did not worsen or increase

in severity in service, and that the schizoaffective disorder did not arise until the hospitalization in April 1971. He opined that a psychiatric disorder is not related to the veteran's brief period of service.

In response to this opinion, the veteran submitted an updated statement from Sonja B. Montgomery, Ph.D., Mental Health Counselor and Intern Supervisor of the Heart Source Center for Counseling and Therapy, dated in December 2005. Ms. Montgomery provided a detailed statement of the veteran's

mental health condition in October 2005. She noted that she had been treating the veteran since August 2005. She explained that she had reviewed the veteran's private treatment records as well as his service medical records for this update. She noted his current diagnoses which in her

opinion included schizoaffective disorder, PTSD, generalized anxiety disorder, panic disorder with agoraphobia. Ms. Montgomery noted the veteran's service experience as reported by him, as well as the hospitalization in 1971. She noted the enuresis and nervousness were included in service medical

records. She explained that she agreed with the veteran's strongly held belief that his mental health was compromised in service. She felt that the experiences in boot camp triggered the current mental health problems and potentially triggered his schizophrenic symptoms and depression in 1971.

Thus, based upon her review of the service medical records, mental health records post service, clinical interviews and individual psychotherapy sessions, she opined it was at least

as likely as not that the current psychiatric disorder was related to service.

The veteran has had an ongoing diagnosis of schizoaffective disorder/schizophrenia since April 1971. He also had diagnoses of substance abuse, in remission, and other mental problems, in addition to his current and longstanding diagnosis of schizoaffective disorder at different times in

his health record.

It is significant to note that, in February 1998, the veteran offered testimony at a hearing held before the undersigned. The veteran testified that he was picked on and mistreated in

service. He started having problems such as inappropriate behavior and problems as a result of the abuse. He had trouble after service and although he had had some previous

problems, he felt these were mischaracterized and overblown in terms of significance. His real problems began in service.

In essence, Ms. Montgomery has opined that the veteran's manifestations of what was termed nervousness in 1970 were really the preliminary signs of the schizoaffective disorder

he has today and for which he was treated in April 1971. She offered detailed support for her theory, based on events in the veteran's record. She observed that the veteran had trouble with functioning since service. She noted that serious medications were administered in April 1971. The

Board finds it significant that the veteran was reportedly having problems for three to four months prior to that admission. This would put the veteran's symptoms at almost the same time as his discharge from service.

Thus, medical records both support and contradict the veteran's theory that his current psychiatric condition, variously but most repeatedly diagnosed as schizophrenia and schizoaffective disorder, are related to in service disease or injury. There is competent medical evidence of a current

disability. There is competent medical evidence relating the disability to service. This evidence is Ms. Montgomery's opinion. There is contradictory evidence in the form of the

2005 IME opinion.

The Board must assess the value of these two opinions. In doing so, the Board notes that an opinion by a medical professional is not conclusive, and is not entitled to absolute deference. The United States Court of Appeals for Veterans Claims (Court) has provided extensive guidance for

weighing medical evidence. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet.

App. 345, 348 (1998). A mere transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the

transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187

(1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995).

The Board has considered the veteran's statements made in written comments and personal sworn testimony to VA regarding the origin of his mental disorder, as well as those told to medical examiners by way of relating his own history. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R § 3.159(a)(1) (2005). See also Espiritu v. Derwinski, 2 Vet.

App. 492, 494-95 (1992). In Washington v. Nicholson, 19 Vet. App. 362 (2005), the Court emphasized the difference between a veteran offering testimony about factual matters of first-

hand knowledge of in-service symptomatology and treatment, as opposed to testimony about a medical diagnosis or etiology. The Court instructed that the credibility of the veteran

affects the weight to be given to his testimony, in relation to other evidence of record. Id. at 7.

The veteran is competent to describe situations of perceived in-service ridicule and subsequent nervousness and bedwetting. Hearing transcript, (T.) pages 3-5. The Board recognizes that such reports are not contradicted by official records. Indeed, service medical records corroborate that he

was treated for bedwetting and placed in a special program for this problem. To this extent, the veteran is credible. Id.

The veteran testified that he did not have any psychiatric problems or treatment prior to service. T. 5. From approximately 1971, he has continued to require such treatment. Pivotally, of record are numerous affirmative conclusions, reached by medical and lay experts, that his current symptoms are due to and entirely consistent with the reasonably substantiated in-service incidents. These are

consistent with Ms. Montgomery's assessment.

Here, Ms. Montgomery cited to specific points in the veteran's history to support her conclusion that a current psychiatric disorder is causally related to service. The IME opinion, though probative, is not as thoroughly supported, in the Board's estimation. For instance, there was no explanation as to whether the nervous condition noted in service was an initial presentation of schizophrenia. That

is the crux of the veteran's argument. Also, there was no comment on the report in April 1971 that the veteran had been manifesting symptoms for three to four months. Ms. Montgomery's opinion is more probative than the IME because it is better supported as to these critical issues. See

Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness

and detail of the opinion.).

Additionally, although the IME concluded that the veteran's psychiatric disorder first manifested in April 1971, he went on to state that it was at least as likely as not that the condition was not related to in service disease or injury. This statement is unclear and may actually be construed as an

opinion in favor of the claim when one considers that the April 1971 manifestations were reported to have been occurring for about four months.

The Board may adopt a particular medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record that appears to support a

claimant's position. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). Thus, Ms. Montgomery's December 2005 opinion is accorded greater probative value. The Board notes that the

December 2005 opinion contains various psychiatric diagnoses under Axis I. However classified, this specialist has related the events in service, including enuresis and nervousness to the post-service psychiatric disabilities.

However, the Axis II diagnosis of borderline intellectual functioning and prior diagnoses of personality disorder are not disabilities for which service connection may be granted.

See 38 C.F.R. § 3.303© (2005) (Congenital or developmental defects, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable

legislation).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55

(1990). In this case, the actual probative medical evidence is both for and against the claim. Accordingly, service connection is thus warranted for a psychiatric disorder,

variously diagnosed. ORDER

Service connection for a psychiatric disorder, including

schizophrenia/schizoaffective disorder, is granted.

____________________________________________

M. SABULSKY

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[free_spirit_etc]

It almost sounds like a scary movie - especially with the nurse telling you that people have those strange experiences all the time.

I would start to wonder what kind of drugs they slip to people.

I am sure you posted a couple letters from your minister in here - and read them - but then didn't have time to respond.

Now I can't find them. Maybe you deleted them.

Anyway - I thought they were very supportive of your claim as they gave a picture of the change before and after the service. - which helps pinpoint the onset in time much better.

I don't think they would stand alone - but I think they can be very important pieces of the picture -

The bar association calls probative evidence - evidence that though standing alone do not neccessarily prove a case is true, it is evidence that can be an important link in a chain of evidence which indicates that it is more likely that the fact is true than that it is untrue.

Free

Free,

It was a nightmare and I know exactly what they did. The nurse told me to be there at the hospital to pick up the statement before those two docs got there.

She wrote the best statement that the law would allow her to.

Pt. Diabetic blood sugar 131, blood pressure fine, Patient cannot remember most of her office visit today. Follow- up with telephone call following morning patient still unable to remember advised to see private doctor.

Those two have told me to drop this claim and I am a nervous wreck every time I try to fight the thing.

I was susposed to take that nap and forget just as the nurse stated. She said she see's it time and time again and the patient has no ideal of what happen to them and they don't remember anything at all about the visit.

I was so scared that I couldn't go to sleep. When my blood sugar was first detected my A1C was at 14. The Rescue Squad took to the hospital for I couldn't remember anything. I still do not remember going to the hospital the CAT SCAN. I do not remember a thing about that day and I guess that I never will.

The staff thought that I had a stroke.

After that C&P, I was sure that I had had another stroke.

I have a letter from my husband, my two daughters. Dr. P and the Nurse at the VAMC that treated me.

Always,

Josephine

[Pete53]

I was asked how much pain on 1 to 10 and I answered 6 whatever that means?

[Josephine]

Pete,

Always better to hang in the middle. If you had said 10, they would have thought that you were exaggerating.

Josephine

[free_spirit_etc]

I think they say 0 is no pain and 10 is slamming your finger in a car door. So I guess 6 would be shutting your finger in the car door, but not slamming it.

When my husband was in the hospital - I questioned the nurses if he was getting too much pain medicine. They said they asked him if he was in pain and he said yes.

Well - yes - but he rated it as a 2 - 8.

How can they tell your level of pain when you tell them it is a 2 to 8?

Apparently I SHOULD have been questioning them. As when he went to sleep after THAT dose, his breathing got real shallow, he started gurgling, I had to get the nurses - and they ended up having to give him Narcan to reverse the overdose.

Narcan is NOT a pleasant trip - it is drug withdrawal condensed into a matter of minutes.

Free

I was asked how much pain on 1 to 10 and I answered 6 whatever that means?