Citation Nr: 0004618 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 95-35 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome. REPRESENTATION Appellant represented by: Kevin A. Reed, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from April 1968 to May 1971, and had service in the National Guard from November 1977 to May 1980, and from July 1982 to January 1984. When this matter was last before the Board of Veterans' Appeals (the Board) in August 1997, it was remanded to the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO), for additional development. Following the completion of the requested development, the case was returned to the Board in December 1999, and is now ready for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. A neuropsychiatric disorder, to include organic brain syndrome and depressive syndrome, were not shown in the veteran's first period of service, and have not otherwise been shown to be related thereto. 3. It has been shown by medical evidence that an organic brain syndrome with depressive syndrome pre-existed the veteran's second and third periods of service. 4. The veteran's neuropsychiatric disorder, diagnosed as organic brain syndrome with depressive syndrome, were not shown during service and did not increase in severity during the veteran's second and third periods of service beyond the natural progress of the disease. CONCLUSIONS OF LAW 1. The presumption that the veteran was sound at entry into his second and third periods of service is rebutted, in that an organic brain syndrome with depressive syndrome pre- existed those periods of service. 38 U.S.C.A. § 1111 (West 1991). 2. The veteran's pre-existing organic brain syndrome with depressive syndrome was not incurred in or aggravated by service and service connection for an organic brain disorder and/or a neuropsychiatric disorder, to include depressive syndrome, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Factual Background The Report of Medical Examination conducted upon the veteran's entry into his first period of service in April 1968 shows that the psychiatric and neurologic clinical evaluation of the veteran produced normal findings. There was noted a scar over the right eye. Service medical records for that period note that on October 5, 1969, an incident occurred in which the veteran had been drinking and was found naked in a building near the air strip. He claimed to have been hit over the head and stated that he recalled the blow. Following examination, the treating physician reported no evidence of blow to the head. On June 23, 1970, the veteran was treated for complaints of pain in the ears which he reported had occurred before service, following a motorcycle wreck. The Report of Medical Examination conducted upon the veteran's separation from his first period of service in March 1971 shows that the veteran indicated that he had then or before depression or excessive worry, loss of memory, and nervous trouble. Examination of those complaints resulted in negative findings, and the psychiatric and neurologic clinical evaluation of the veteran produced normal findings. Hospital reports and treatment records from Breckenridge Hospital are of record, including a Discharge Summary prepared by Dr. J.C.B., M.D., dated in October 1976. These records document that the veteran was hospitalized for the period from May 1976 to October 1976 for "massive injuries" that he sustained following a single car collision. It was noted that these injuries included a severe head injury, an injury to the right femur, and multiple respiratory problems. It was documented that the veteran had a hematoma in the left temporal lobe region with a left to right middle shift, and was treated by Dr. E.B., a neurosurgeon, and gradually improved. The Discharge Summary indicated that the veteran was seen by a psychiatrist for evaluation as well. The Summary stated that the veteran had made a remarkable recovery mentally and appeared to be alert, had a good memory for recent events, but still had clouded memory for the events surrounding the accident and his early postoperative phase in Intensive Care. The Report of Medical Examination conducted upon the veteran's entry into the National Guard in November 1977, shows that the psychiatric and neurologic clinical evaluation of the veteran produced normal findings. In that report, the veteran indicated that he had not had then, nor had he ever had depression or excessive worry, loss of memory, or nervous trouble of any sort. The May 1976 automobile accident was noted, but only as to the injury to the veteran's right femur and his pulmonary problems. The Report of Medical Examination conducted upon the veteran's entry into his second period of service in the National Guard in July 1982, shows that the psychiatric and neurologic clinical evaluation of the veteran produced normal findings. In that report, the veteran indicated that he had not had then, nor had he ever had depression or excessive worry, loss of memory, or nervous trouble of any sort. The 1976 automobile accident was noted, but only as to the injury to the veteran's right femur and his pulmonary problems. A February 1988 Psychological Evaluation is of record, and documents that the veteran wanted evaluation for the purpose of his pursuit of vocational rehabilitation. Following examination and testing, the examining psychologist's diagnostic impression was no diagnosis on Axis I, and borderline personality disorder, with schizophrenic characteristics on Axis II. A 1991 Psychological Summary is of record, and documents that the veteran was seen for the purpose of determining his eligibility for social security assistance. Following behavioral observation and testing, the examining psychologist's diagnosis was that the veteran's dominant qualities displayed a personality disorder. A Physician Certification dated September 1991, signed by Dr. J.C., M.D., shows a diagnosis of organic brain injury and severe depression. The certifying physician indicated this to have started in May 1976. The physician indicated further that the veteran had been unable to work and study since that time, and that his condition had gotten progressively worse since May 1988. In February 1992, the veteran was seen for psychological consultation regarding a claim for non-service connected disability benefits for organic brain syndrome. The examiner obtained information from a review of the veteran's claims file, his medical record and an interview. In the examiner's opinion, the veteran's social and occupational functioning appeared to be mildly to moderately impaired, but it was not possible to determine how much was due to the residuals of the 1976 head injury and how much was due to a pre-existing personality problem. The resulting diagnosis on Axis I was organic brain syndrome, by history; and on Axis II, a personality disorder, not other wise specified with antisocial and borderline traits. In April 1993, the veteran was seen for psychiatric evaluation by Dr. S.G.L., M.D. In the report of that evaluation, it was noted that the veteran was self-referred for evaluation and treatment of depressive mood in the context of a history of severe closed-head injury in 1976. In the report of history of present illness, it was noted that "the veteran underwent a four-and-a-half-month recovery from a motor vehicle accident in 1976 that left him semicomatose for the duration of that period of time." The report noted further by history, that upon awakening, the veteran continued to have some difficulty for a period of time regarding ambulation, and continued to suffer notable difficulties with concentration and memory that eventually left him unable to hold a job. It was further noted that the veteran began experiencing depressive difficulties in the few months prior, and these appeared in the context of psychosocial stressors including the worsening dementia. The evaluation report noted that "even after his injury in 1976, [the veteran] participated in the National Guard for a period of four years." Following examination, the assessment on Axis I was Organic Mood Disorder, depressed type; Rule Out Organic Mood Disorder, mixed type; Rule Out History of alcohol abuse; Rule Out Dysthymic Disorder. The assessment on Axis III was Status-post closed-head injury in 1976 involving the left temporal lobe with resultant right lower extremity difficulties and back pain associated with disability for cognitive dysfunction including memory and concentration problems. The plan was the initiation of treatment including pharmacotherapy. In March 1994, the veteran filed the current claim for service connection for organic brain syndrome, claiming it was aggravated while on active duty in the National Guard. In support of that claim, the veteran submitted a June 1994 letter from his treating physician, Dr. S.G.L., M.D. In the letter, Dr. S.G.L. stated that a close review of the veteran's history suggests that there is a high probability that parental abuse and neglect caused a considerable portion of his current mental health problems, and "therefore these problems began prior to his military service experience." The veteran submitted a second letter from his treating physician, Dr. S.G.L., this one dated December 1994 letter. In the letter, Dr. S.G.L. stated that the veteran was under his care for a depressive syndrome, and that he had sustained brain injuries in a motor vehicle accident in 1976, limiting his memory and general cognitive ability, and predisposing him to a depressive illness. Dr. L. then stated that a review of the veteran's history noted service in the National Guard beginning in 1977, and stated that this period appears to have exacerbated his depressive symptoms and worsened the course of his illness. He concluded by stating that the veteran's "condition was certainly exacerbated by his experience in the National Guard." In two hearings before hearing officers at the RO in January 1995 and April 1996, and in a May 1997 hearing before the Board, the veteran testified in support of his claim, to the effect that he was treated psychiatrically during his first period of service, and that his organic brain syndrome that was incurred in the 1976 automobile accident was aggravated by his service in the National Guard between 1977 and 1984. The veteran's treatment records of Dr. S.G.L., M.D. for the period from April 1993 to July 1997 have been associated with the claims file. They document the treatment of the veteran for a mood disorder due to a closed head injury. They also refer to "conflicts with the military" and "legal issues re disability", in terms of the review of psychosocial stressors. The veteran was hospitalized in January 1998 for complaints of right lower leg pain after falling from a tree. It was noted that his past medical history was significant for hypertension and a closed head injury. The veteran also reported that he had a history of excessive alcohol consumption, but noted that he had recently quit. The diagnosis was fractured proximal tib/fib region. In May 1998, the veteran submitted what appears to be the first page of a medical treatise, purported to be from the December 1987 issue of the Journal of Neurological and Orthopaedic Medicine and Surgery, entitled "Minor Head Injury, a Not So Minor Problem," by Aaron M. Levine, M.D., FAANaOS. This article notes the frequency of minor head injuries, and the fact that significant sequelae are often not recognized. It further notes that individuals with such injuries have trouble dealing with stress, and that this stress increases when work performance falters in spite of the fact there are no signs of physical disorder. Pursuant to the Board's 1997 remand, the veteran was afforded a VA psychiatric examination in January 1999. In the report of that examination, it is noted that the veteran's medical records and claims folders were reviewed in detail. In the report of history, the veteran's pre-service, in-service, and post-service, medical, occupational and social histories, were set out in great detail. In that report of history, it was noted that the veteran was not a reliable historian. The examiner stated that because of the veteran's anger and rambling, the nature of his complaints were essentially impossible to determine other than his belief in his entitlement to compensation. He did report significant problems with remembering new information and endorsed depressed mood. According to the examiner, the veteran underwent a brief examination, and, due to the nature of his claim, was referred for and completed a complete intelligence, memory, neuropsychological, and personality testing. The results of the testing was set out in detail, and according to the examiner, was totally consistent with the veteran's history of left hemisphere injury and impairment. The examiner concluded that based on the current examination and review of records, the veteran did have a long-standing character disorder which pre-dated his entry into service. With regard to the "organic brain syndrome," the examiner stated that although he had been directed to determine whether or not the veteran's current cognitive/intellectual deficits reflected congenital as opposed to acquired deficits, it was impossible to determine the degree to which any such congenital deficits contributed to current cognitive functioning. The examiner noted, however, that the pattern of deficits found in testing was consistent with cortical insults sustained in the veteran's 1976 motor vehicle accident, following his 1968-1971 active duty. The examiner stated that there was no evidence to support a claim that the veteran's problems, either organic or psychiatric, were exacerbated by military service. The examiner went on to state that the veteran's history and records suggest that he had a personality disorder prior to service entry, as indicated by problems in school and legal involvements prior to enlistment. The examiner noted that a psychology consultation report of February 25, 1992 indicated that the veteran had more legal difficulties following service and in his words was "busted for a pattern of breaking and entering". The examiner noted that although evidence of cognitive deficits prior to service entry is unclear, the veteran's history clearly supports the opinion that current deficits reflect residuals of motor vehicle accident which did not occur during his period of military service. The examiner reiterated that there is no evidence that National Guard duty following this accident in any way exacerbated cognitive deficits. The examiner then reemphasized that there is no evidence that any of the veteran's current difficulties, organic or psychiatric, are related to a disease or injury sustained during active service or periods of active duty training. The examiner explained that the MMPI-2 pattern generated by the veteran included an elevation of the clinical scale reflecting depression, but noted that the profile is one that is typical of individuals with characterological depression, which follows acting out, but does not deter future episodes of acting out. The examiner indicated that this is clinically different from an Axis I Major Depressive Disorder and is typical of an Axis II disorder which pre-existed military service. The resulting diagnoses were as follows: AXIS I. 1. Dementia due to head trauma, mild to moderate AXIS II. 2. Personality disorder, not otherwise specified, with prominent antisocial features AXIS III. 3. See MD report AXIS IV. 4. Stressors - Interpersonal difficulties, unemployment with financial pressures - Moderate AXIS V. 5. Adaptive functioning - GAF = 50 In January 1999, the veteran also underwent a brain and spinal cord examination, again pursuant to the Board's 1997 remand. In the report of that examination, it was noted that the veteran's claims file and VA medical records were reviewed in detail. A summary of the veteran's pertinent service medical records and the medical records relevant to the 1976, motor vehicle accident were set out. It was noted that in 1976, the veteran had suffered both a fracture of his right leg and head trauma. It was further noted that a CT scan done at that time showed a hematoma in the left temporal lobe. Following a review of the veteran's medical history for subjective complaints, an examination for objective complaints, and a review of the diagnostic and clinical tests, the examiner concluded that the veteran's history of a head injury with brain hemorrhage in 1976 involving the left hemisphere, would seem to be an adequate explanation for his reported memory problems and is certainly consistent with the slight abnormalities present on the neurological examination. The examiner stated that based on his review of the records, he could not conclude or even strongly suspect, that anything that happened to him while in the military service contributed to his memory problems. It was noted that the fact that he remembers being hit on the head in 1970 means that there was no retrograde amnesia, which normally implies that the head injury was not of great severity. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 1991). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6 (1999). The evidence does not suggest, nor does the veteran claim, that the disability at issue, an organic brain syndrome with depressive syndrome, was incurred in or aggravated by his initial period of active service between 1968 and 1971. Second, in terms of any perceived claim of entitlement to service connection for a personality disorder, 38 C.F.R. § 3.303(c) (1999) provides that a personality disorder is not a disease or injury within the meaning of applicable legislation governing the awards of compensation benefits. [See also O.G.C. Precedent 82-90, 56 Fed. Reg. 45711 (1990) (previously issued as General Counsel Opinion Op. 1-85), which states that service connection may be granted for diseases, but not defects, of congenital, familial or developmental origin.] As such, regardless of the character or quality of any evidence that the veteran could submit, such a condition could not be recognized as a disability under the terms of the VA Schedule for Rating Disabilities. In other words, because the veteran's personality disorder is not a disability that has been recognized as a chronic disorder for VA compensation purposes, there is no legal basis upon which to warrant a grant of entitlement to service connection for a personality disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303(c), 4.9 (1999). It is the veteran's primary contention that he had incurred an injury to his brain in an automobile accident in 1976 (prior to his entry into his second period of service in 1977) that resulted in organic brain syndrome, and that these subsequent periods of service in the National Guard aggravated his pre-existing organic brain disorder beyond its natural progression, leading to his current organic brain syndrome and depressive disorder. In this case, as neither an organic brain syndrome nor a depressive disorder were noted at the veteran's November 1977 entrance examination for entrance into the National Guard for his second and third periods of service, the presumption of soundness applies. See Crowe v. Brown, 7 Vet. App. 238, 246 (1994). The presumption of soundness of the veteran's brain, however, is rebutted by clear and unmistakable evidence that an organic brain disorder has been diagnosed, and has categorically been classified as preexisting service. This conclusion is based upon the September 1991, certification by Dr. J.C., M.D., that an organic brain injury and severe depression started in May 1976; the assessment of the veteran's own physician, Dr. S.G.L., that the veteran's mood disorder was due to a closed head injury in 1976; and the assessment of the VA physician in 1999 that the veteran's current deficits reflect residuals of a [1976] motor vehicle accident which did not occur during his period of military service. As noted above, all pertinent medical opinions have confirmed this conclusion, and none have speculated otherwise. When a condition is properly found to have been preexisting, either because it was noted at entry or because preexistence was demonstrated by clear and unmistakable evidence, the presumption of aggravation provides that a preexisting injury or disease will be considered aggravated by active service where there is an increase in the disability during such service, unless there is a specific finding that the increases in the disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (1991); 38 C.F.R. § 3.306. (1999). A temporary worsening of symptoms of a disability subject to exacerbation is not indicative of an increase in the severity of the underlying disability. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. C.F.R. § 3.306. As the presumption of soundness has been rebutted, the remaining question then is whether the veteran's preexisting organic brain syndrome disorder with a depressive syndrome was aggravated by service. At this juncture, it should be noted that the medical evidence places at issue the question of whether the veteran has a true depressive disorder versus depressive symptomatology related to a personality disorder. Notwithstanding, for the purpose of analysis, the Board will concede that he does have a depressive disorder associated with his organic brain disorder. With respect to the question of whether the presumption of aggravation could be imposed based upon evidence of an increase in the disability during such service, the Board first notes that no contemporary evidence has been discovered showing the treatment of the veteran during his periods of service in the National Guard from November 1977 to May 1980, and/or from July 1982 to January 1984 for an organic brain disorder or a psychiatric disorder. Notwithstanding, post-service evidence has been presented supporting the veteran's allegation that his organic brain disorder was increased in severity during service and aggravated therein. In chief, this evidence is the December 1994 letter from his personal psychiatrist, Dr. S.G.L., that stated that the veteran had sustained brain injuries in a motor vehicle accident in 1976 that led to a depressive syndrome, and further stated that a review of the veteran's history led him to conclude that the veteran's service in the National Guard beginning in 1977, exacerbated his depressive symptoms and worsened the course of his illness. In contrast to that opinion, however, the VA psychiatric examiner who examined the veteran in 1999 concluded that there is no evidence that National Guard duty following the veteran's 1976 accident in any way exacerbated cognitive deficit. The same examiner later reemphasized that there is no evidence that any of the veteran's current difficulties, organic or psychiatric, are related to a disease or injury sustained during active service or periods of active duty training. In fact, the 1999 VA psychiatric examiner was unable to discern a depressive disorder at all, but instead attributed the veteran's depression to his personality disorder. With respect to the organic brain disorder itself, a second VA examiner who examined the veteran in 1999, categorically stated that based on his review of the records, he could not conclude or even strongly suspect, that anything that happened to the veteran while in the military service contributed to his memory problems. It is important to emphasize that the opinions of the 1999 VA psychiatric and neurological examiners noted above were based upon a review of the claims file, the veteran's medical records, considerable psychiatric and neurological testing, and upon a comprehensive examination of the veteran. Further, these examiners provided well reasoned opinions with reference to the pertinent evidence, including that in favor or against the veteran's claim. In fact, the VA psychiatrist tediously summarized the pertinent medical record, including the supporting evidence, and specifically addressed the inconsistencies in the opinions supporting the veteran's claim with the evidentiary record. On the other hand, although the opinion offered by the veteran's treating psychiatrist in support of the veteran's claim could be considered equally emphatic, it must also be considered conclusory, in that it was made without expressed foundation. Further, the private psychiatrist noted that his opinion was based upon a review of the veteran's history, but there is no indication as to the source of that history. Specifically, the veteran's psychiatrist does not indicate whether that history came exclusively from the veteran, or whether it was derived from an independent source. More importantly, there is no indication that he had the benefit of all of the pertinent evidence of record as did the VA examiners. Consequently, the Board must attribute far greater probative weight to the opinions of the VA physicians who evaluated the veteran in 1999. The Board has also considered the medical treatise on the subject of minor brain injuries that the veteran has offered in support of his claim. Although under certain circumstances such a treatise could be sufficient to well ground a claim, the Board finds it of little weight in the evaluation of the current claim. First, it was offered without medical comment, and further, the available information is found by the Board to be too vague, and consequently does not allow the Board to draw any conclusion from the information contained therein without violating the restrictions against such medical inferences. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Sacks v. West, 11 Vet. App. 314 (1998). See also Rucker v. Brown, 10 Vet. App. 67 (1997). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (1991); 38 C.F.R. § 3.306. (1999). In the instant case, on the basis of all the evidence of record, the Board must conclude that the preponderance of that evidence is against a finding that the veteran organic brain syndrome underwent an increase in severity during service. Moreover, the preponderance of the evidence leads to the conclusion that there was no aggravation in service of the veteran's organic brain disorder or neuropsychiatric disorder, beyond that which was due to the natural progress of the condition. C.F.R. § 3.306. As the preponderance of the evidence weighs against the veteran's claim, there is no reason or basis upon which to find the existence of aggravation. Hence, entitlement to service connection is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1153. In reaching this decision the Board considered all of the evidence of record, including the veteran's written statements and the oral statements given at the hearing before the RO and the Board that his organic brain disorder and depressive syndrome were aggravated as a result of his National Guard service. The veteran, however, as a lay affiant, is not competent to offer a medical opinion as to whether or not his underlying brain disorder was aggravated in service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this respect, the veteran's statement as to the cause for any claimed aggravation must be supported by cognizable evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The preponderance of the evidence is against this claim. While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issue on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a neuropsychiatric disorder, to include organic brain syndrome with personality disorder and depressive syndrome, is denied. Michael A. Pappas Acting Member, Board of Veterans' Appeals