Citation Nr: 0705401 Decision Date: 02/26/07 Archive Date: 03/05/07 DOCKET NO. 03-27 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disorder, to include post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1979 to November 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was scheduled for May 2005 but the veteran failed to report. FINDING OF FACT It is not shown that any current psychiatric disorder was manifested in, or is related to, his service; when PTSD has been diagnosed, the diagnosis was based on pre-service stressor event(s). CONCLUSION OF LAW Service connection for a variously diagnosed psychiatric disorder, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA 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. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The veteran has been advised of VA's duties to notify and assist in the development of his claim. A June 2002 letter from the RO explained what the evidence needed to show to substantiate the claim. It also explained that VA would make reasonable efforts to help him obtain evidence necessary to support his claim, including medical records, employment records or records from other federal agencies but that it was ultimately his responsibility to ensure that records were received by VA. A September 2004 letter clarified that VA was responsible for obtaining relevant records from any federal agency, and that VA would make reasonable efforts to obtain records not held by a federal agency, but that it was the veteran's responsibility to make sure that VA received all requested records not in the possession of a federal department or agency. This letter also advised the veteran to submit any evidence in his possession pertaining to his claim. The February 2003 rating decision and an August 2003 statement of the case (SOC) provided the text of applicable regulations and explained what the evidence showed and why the claim was denied. A September 2004 supplemental SOC readjudicated the matter after all critical notice was given. Although the veteran was not provided notice regarding the criteria for rating psychiatric disability and effective dates of awards (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)) such notice would only be relevant if the benefit sought was being granted. While complete VCAA notice was not given prior to the rating on appeal, the appellant had ample opportunity to respond to the notice letters and the SOC and SSOC and to supplement the record after notice was given. He is not prejudiced by any technical notice deficiency that may have occurred along the way, and no further notice is required. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Regarding VA's duty to assist, the RO has obtained the veteran's service medical records, along with available VA and private medical evidence. The Board has also considered whether a VA medical examination is necessary for proper adjudication of the veteran's claim. An examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4). In the instant case the evidence of record does not provide any indication that the veteran's current psychiatric disability may be associated with any event, injury or disease in service. Consequently, an examination is not necessary. The veteran has not identified any additional evidence pertinent to this claim. VA's assistance obligations are met. The veteran is not prejudiced by the Board's proceeding with appellate review. II. Factual Background Service medical records reveal that in September 1980 the veteran sought medical assistance with his alcoholism. Antabuse was prescribed and formal inpatient rehabilitation was recommended. In April 1981 the veteran was referred for psychiatric evaluation by his squadron as he had been involved in at least three episodes of physical assault in the prior six months. It was noted that alcohol had caused significant problems in his personal, financial and military affairs, and that he was still drinking, spending approximately 25 percent of his pay on partying. On mental status examination the veteran displayed no neurotic or psychotic signs. His affect was appropriate, sensorium was clear and intellect was intact. Judgment and insight were impaired by alcoholism. The diagnosis was alcohol addiction. An August 1982 progress note showed that the veteran had been "jumped" the prior Saturday night. He suffered a black eye with ecchymosis and bruising and an abrasion on his chin. On November 1982 service separation examination, psychiatric functioning was found to be normal. A February 1998 discharge summary from the Gateway VA detoxification program shows diagnostic assessments of heroin dependence and withdrawal and alcohol dependence and withdrawal. A March 1998 VA rehabilitation program discharge summary shows diagnoses of substance induced anxiety disorder, rule out primary general anxiety disorder, and heroin and alcohol abuse. A subsequent (May 1998) discharge summary from Gateway VA detoxification program shows diagnostic assessments of alcohol dependence and opiate dependence. It was noted that the veteran did not have a past history of psychiatric hospitalization. An August 1998 VA partial hospitalization program discharge summary shows diagnostic assessments of PTSD, chronic (noted to be non- military and childhood related), dysthymic disorder, alcohol dependence in early remission and heroin dependence in early remission. The veteran had reported that prior to admission he experienced symptoms of anxiety, nightmares of people chasing him and of him getting shot, feeling depressed most of the time, avoiding people much of the time and suicidal ideation with no plan. He also reported visual hallucinations and hearing his name being called. The veteran indicated that his visual hallucinations were related to "crank" use. It was noted that hearing his name called could have been related to PTSD symptoms. A December 1998 group therapy note shows that the veteran reported that he had been sexually assaulted by several men when he was 19 years old. After that he had had a feeling of being worthless, took all kinds of risks and was very angry as a way of protecting himself. He used heroin for many years. At a January 2000 VA social work visit the veteran's major complaint seemed to be intrusive thoughts revolving around the sexual assault when he was 19. Especially when he was around people and off his medications, he tended to have intrusive thoughts, which he felt lead to his using substances to self-medicate. A May 2002 psychiatric resident's evaluation produced pertinent provisional diagnoses of alcohol and heroin dependence, rule out mood disorder with bipolar II features, rule out childhood PTSD. The veteran was noted to have had a history of psychiatric treatment for depressive symptoms, anxiety symptoms, and childhood PTSD (resulting from being subjected to sexual assault at age 19). In his April 2003 Notice of Disagreement, the veteran indicated that he was beaten up and sent to the infirmary while on active duty in Tustin, Georgia sometime between 1980 to 1981. He further indicated that this assault permanently aggravated his PTSD from the sexual abuse he had suffered as a child. In his August 2003 Form 9 the veteran indicated that the drill instructors used to call him profane names. He did not appreciate this and the rigorous training and lack of sleep also caused his bad thinking to come about. He was not the same after his military service. An October 2003 VA psychiatric partial hospitalization assessment report shows diagnoses of PTSD, Mood Disorder NOS (rule out Bipolar II), opioid dependence and alcohol dependence. A November 2003 VA outpatient progress note showed diagnoses of opioid dependence, severe early remission, alcohol dependence, severe, early remission and mood disorder NOS. It was unclear if the mood disorder was a cognitive disorder or a psychotic disorder. However, no positive psychotic symptoms were noted. A subsequent January 2004 psychiatric outpatient note shows diagnostic assessments of opioid dependence alcohol dependence and mood disorder NOS. III. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service; however, no compensation shall be paid if the disability is a result of the person's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain listed, chronic diseases, including psychosis, may be presumed to have been incurred in service if they become manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). At the outset, it is noteworthy that the veteran's psychiatric diagnoses included alcohol and drug (opiate) abuse and dependence. However, governing law (see 38 U.S.C.A. § 1110) specifically prohibits the payment of compensation for disability due to misconduct, or abuse of alcohol or drugs. Furthermore, although 2003 treatment records suggest that the veteran may have a psychosis, there is no competent evidence that a psychosis was manifested in service or in the veteran's first postservice year. Consequently, the chronic disease presumptive provisions of 38 U.S.C.A. § 1112 are not for consideration. The evidence of record reasonably establishes that the veteran has some sort of acquired psychiatric disability, with diagnoses including mood disorder, depression and PTSD. However, there is no evidence that any current such psychiatric disability became manifest in service or is related to service. Service medical records do not show any diagnosis or treatment for psychiatric disorder. The only problem in mental functioning found in service was in regard to alcohol addiction and alcohol abuse. See 38 C.F.R. § 3.301 (a) and (d) (An injury or disease incurred during active service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs and service connection may only be granted when disability was incurred or aggravated in the line of duty). [Regarding the March 1998 diagnosis of substance induced anxiety disorder, the Board notes that secondary service connection related to the chronic use of alcohol is only available for organic diseases or disabilities, and anxiety disorder is not an organic disease or disability (See 38 C.F.R. § 3.301(c)(2))]. Regarding the diagnosis of PTSD in the record, when PTSD has been diagnosed, it has been related to a sexual assault that the veteran suffered at age 19 (about 3 years pre-service) and not to any event or incident in service. While it is documented that the veteran was involved in altercations, and was physically assaulted in service, his assertion that his PTSD was aggravated by military service is not supported by any competent (medical) evidence of record. The veteran's own allegations in this regard are not competent evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). ("Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.") Given that there is no competent evidence that any current chronic acquired psychiatric disability became manifest in service or is otherwise related to service, the preponderance of the evidence is against the veteran's claim; accordingly, the claim must be denied. ORDER Service connection for a variously diagnosed psychiatric disability, to include PTSD, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs