Citation Nr: 1512521 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 07-33 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depressive disorder, personality disorder, and pedophilia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to June 1977, and from May 1979 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 2009, the Board remanded the issues of service connection for PTSD and an acquired psychiatric disorder, to include depression, to the RO to request additional records from the Veteran. In April 2011, the Board remanded the issue of service connection for an acquired psychiatric disorder, to include PTSD and depression, to request additional records from the Veteran and to obtain a medical examination. In November 2013, the Board denied service connection for PTSD and again remanded the issue of an acquired psychiatric disability, to include depression, to obtain additional records and an addendum opinion regarding the etiology of the Veteran's diagnosed depression. Those actions having been completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion of the RO's compliance with the Board Remands is included in the Duties to Notify and Assist section below. FINDINGS OF FACT 1. A personality disorder is not a disability for which service connection may be granted under regulations governing benefits administered by VA. 2. The Veteran's pedophilia is the product of intentional wrongdoing with wanton and reckless disregard of its probable consequences. 3. An acquired psychiatric disorder other than PTSD, to include depressive disorder, was not manifested in active service and is not otherwise etiologically related to such service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, personality disorder, and pedophilia, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2014). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Depressive disorder, personality disorder, and pedophilia are not "chronic diseases" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. §§ 3.303(b) and 3.309(a) do not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran seeks entitlement to service connection for an acquired psychiatric disorder other than PTSD. Specifically, he asserts that the psychiatric disorder is due to the 18 years he spent in the military. Parenthetically, as mentioned above, service connection for PTSD was denied in a November 2013 Board decision. The Board first finds that the Veteran has current psychiatric disabilities. The Veteran underwent a VA examination in September 2011. At that time, the Veteran was diagnosed with personality disorder and pedophilia. With regard to the Veteran's personality disorder, personality disorders are considered congenital or developmental defects and are therefore not considered "diseases or injuries" under the applicable legislation. 38 C.F.R. § 4.9 (2014). As such, personality disorders do not constitute a disability for VA compensation purposes. 38 C.F.R. §§ 3.303, 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). In addition, the Board finds no evidence of additional disability due to in-service aggravation of the personality disorder by superimposed disease or injury during the Veteran's period of active duty. Accordingly, service connection for a personality disorder is not warranted. With regard to the Veteran's pedophilia, the law provides that no compensation shall be paid for a disability that is a result of the appellant's own willful misconduct. See 38 U.S.C.A. §§ 1110, 1131. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n). The September 2011 VA examination report reflects that, in approximately 2002 or 2003, the Veteran was charged with sexual exploitation associated with child pornography. He was incarcerated at the Fremont Correctional Facility between 2003 and 2011. As such, the Veteran's pedophilia is the result of his own willful misconduct. 38 C.F.R. § 105(a); 38 C.F.R. § 3.301(b). Consequently, service connection for pedophilia is not warranted. In the September 2011 VA psychiatric examination report, the VA examiner also noted an Axis I diagnosis of adjustment disorder. Significantly, however, the VA examiner explicitly noted that the adjustment disorder is in remission. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, the Board does not find that the Veteran has a current diagnosis of adjustment disorder for VA compensation purposes. The Veteran also has a current, acquired psychiatric disorder of depression. Most recently, in the March 2014 VA addendum medical opinion, the Veteran was diagnosed with depressive disorder. The remaining questions are whether there is evidence of an in service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. In this case, the Veteran contends that, as a Marine Security Force member, he guarded sensitive communication sites and perimeter jungle areas. He further contends that many fears arose due to long, arduous hours at general quarters stations or sentry duties in remote jungle areas. See October 2007 Substantive Appeal. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran's primary duty from November 1973 to February 1975 was Company Guard. See Record of Service, Personnel Record. As such, these assertions are consistent with the nature of the Veteran's service. See 38 U.S.C.A. § 1154(a) (West 2002). The Veteran also asserted that he had other "collateral duties," such as being on a search and rescue team, which searched for survivors of aircraft crashes in or near Anderson Air Force Base and for Vietnamese casualty refugees, being in an aircraft that shot down a Libyan MIG, and being exposed to other "terrorist attacks." In an April 2006 Formal Finding/Verification of Stressor, the U.S. Army and Joint Services Records Research Center (JSRRC) indicated that the Veteran's alleged stressors could not be verified based on the information provided by the Veteran. The JSRRC requested that the Veteran provide more details as to the events alleged in service. To date, the Veteran has not provided additional evidence or more specific information regarding these alleged in-service events. As such, the Board does not find that these "collateral duties," as contended by the Veteran, are consistent with the nature of his service. The Board next finds that the competent, probative evidence of record does not etiologically link the Veteran's current depressive disorder to service or any incident therein. Service treatment records are absent complaints of, or treatment for, a psychiatric condition in service. The Veteran's discharge examination from December 1993 evaluated him as clinically normal, to include a psychiatric evaluation. Post service medical records reveal that the Veteran was first diagnosed with depression in 2001 and placed on Paxil. At this time, the Veteran stated that his wife had prompted the visit to the Veteran's private treating doctor to discuss his stress levels. The Veteran stated that he felt overwhelmed at times, felt sad but not suicidal, and sometimes felt a bit hopeless. The Veteran also was stressed by his 6-month-old child who has born with numerous physiological problems. The Veteran's private treating doctor continued the depression diagnosis through 2002. A treatment note from the Freemont Correctional facility, dated November 2004, indicated that the Veteran's depression improved. The intensity levels of his mood swings had decreased. His prescription of Vistaril had decreased his anxiety. The Veteran reported that he felt more relaxed; his management of stress and his ability to cope had improved. Overall, the Veteran was pleased with the results of the medication. In September 2005, another treatment noted from the correctional facility indicated that the Veteran had been coping with his daily stressors. He rarely missed a dosage of his psychiatric medications. He was concerned that his son was going back to Iraq and he was also worried about his father. The Veteran had been coping with prison life and wanted to get back into treatment for another year. In September 2011, the Veteran underwent a VA mental health examination. At that time, the VA examiner noted the Veteran's military history. There was no discussion of the Veteran being depressed in service. Specifically, the Veteran reported that despite his jobs being stressful, he generally performed job tasks satisfactorily and got along with others. He reported that he was stressed and using increased alcohol, but he did not seek mental health treatment for the stress until 1992 at the encouragement of his wife. In 1992, he visited a family advocacy clinic due to his daughter reporting being a victim of sexual abuse by the Veteran. Further, at the September 2011 VA examination, the Veteran reported that he was currently depressed primarily related to his release from prison, being unemployed, financial concerns, and the fact that he was on parole. He reported chronic anxiety, occasional panic attacks, and a history of sexual compulsions. In March 2014, the Board sought an addendum medical opinion regarding whether the Veteran's current diagnosis of depressive disorder was etiologically related to service. The VA examiner opined that the Veteran's depressive disorder is less likely as not related to his active military service. The VA examiner supported this opinion based upon the rationale that the Veteran did not seek treatment for depression (or depressive disorder symptoms) until years after discharge from active service. The VA examiner also noted a May 2012 VA treatment report, which was the first instance where the Veteran's depression was discussed in terms of military service. Also, the Veteran reported that he performed his task well in the military. Otherwise, the VA examiner explained that VA progress notes indicated that the Veteran's depression was related to marrying his ex-wife, situational factors at the time of his treatment in 2012, not being able to find employment partly due to his felony conviction, the restrictions related to his probation, and the restrictions involving being a registered sex-offender. The VA examiner had adequate information on which to base the medical opinion and provided an adequate rationale for the conclusion that is consistent with the facts in this case and is based on medical principles. For these reasons, the Board affords the VA examiner's medical opinion great probative weight. The Board acknowledges that the Veteran himself has claimed that he suffers from an acquired psychiatric disorder as a result of his active service. Here, however, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., feeling sad or nervous; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is a lay person and does not have the requisite medical expertise to be able to render a competent medical opinion regarding the cause of the depressive disorder. The mechanism by which duties as a guard during military service might cause depression years after service is not inherently one observable by the five senses. The Veteran's general statements regarding the relationship of the depression to service provide no competent basis in common lay knowledge, lay observable symptoms, or lay report of a medical opinion by which the Veteran could offer a competent nexus evidence between depressive disorder and service. In short, the Veteran offers a general, conclusory assertion that the depression is related to service without a foundation in either competent lay or competent medical evidence. The Board affords these statements no probative value. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Instead, the Board finds the competent opinion evidence of record from the VA examiner who provided the March 2014 VA addendum opinion, which is consistent with the accurate factual finding and assumption of history of a post-service onset of symptoms and diagnosis of depressive disorder, to be more probative than the Veteran's more recent and general contentions as to onset and etiology of symptoms that he claims are depressive disorder. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current depressive disorder and active duty service. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, and the claim must be denied. There is no other alternative theory of entitlement for service connection for depressive disorder reasonably raised by the record. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. VA's duty to notify has been satisfied through a notice letter provided to the Veteran in September 2005 that fully addressed all notice elements prior to initial adjudication in July 2006. The September 2005 letter also included provisions for disability ratings and for the effective date of the claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied the duty to assist in obtaining existing records in support of the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with claims file. All available post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran does not allege that there are any outstanding records necessary for the adjudication of the issue on appeal. The Veteran was afforded an opportunity for a VA psychiatric examination in connection with the claim in September 2011 (pursuant to the April 2011 Board Remand). 38 C.F.R. § 3.159(c)(4) (2014); Stegall, 11 Vet. App. at 268. 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). An addendum medical opinion was obtained in March 2014 (pursuant to the November 2013 Board Remand). Taken together, the September 2011 VA examination findings and opinions, and the March 2014 addendum opinion regarding an acquired psychiatric disorder other than PTSD consider all the pertinent evidence of record, to include the statements of the Veteran, and the VA examiners provided adequate rationales for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of service connection for an acquired psychiatric disorder other than PTSD has been met. 38 C.F.R. § 3.159(c)(4). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. §§ 5103a, 5103A, and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and the representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Hence, no further notice or assistance is required to fulfill VA's duties to notify and assist the Veteran in the development of the appeal. ORDER Service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, personality disorder, and pedophilia, is denied. ____________________________________________ L.M. YASUI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs