Citation Nr: 1625744 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 10-31 858 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active duty service from January 1967 to July 1968. Historically, a for a claim for anxiety or a nervous disorder was previously denied, most recently in a September 1985 rating decision. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2008 rating decision in which the RO denied the Veteran's claim for service connection for generalized anxiety disorder and major depressive disorder. In November 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in June 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) the following month. In September 2011 correspondence, the Veteran withdrew his request for a hearing before a Veterans Law Judge at the RO. In July 2015, the Board reopened the previously denied claim for service connection and remanded the claim for service connection, on the merits, to the agency of original jurisdiction (AOJ) for additional development. After completing the requested action, the AOJ continued to deny the claim (as reflected in the December 2015 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration. Because the evidence of record includes other psychiatric diagnoses in addition to generalized anxiety disorder and major depressive disorder at the time of the July 2015 decision, the Board more broadly characterized the reopened claim as one for service connection for an acquired psychiatric disorder, consistent with Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS) and the Virtual VA (VVA) paperless, electronic claims processing systems. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. In- and post-service medical records reflect diagnoses of personality disorder, which are not considered disabilities for compensation purposes. 3. Although the Veteran has reported symptoms of anxiety and depression during and continuing since service, competent and persuasive medical opinion and other evidence of record indicates that an acquired psychiatric disorder-to include the chronic anxiety and depressive disorders diagnosed many years post service-was not incurred in service or superimposed upon the Veteran's preexisting personality disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include generalized anxiety disorder and major depressive disorder, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). Under the VCAA, VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what evidence is to be provided by the claimant and what evidence VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA's duty to notify with respect to the basic requirements to substantiate the claim for service connection was satisfied by a pre-rating letter of March 13, 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Moreover, the letter provided general notice of how VA assigns disability ratings and effective dates. There is no allegation of any error or omission in the notice provided. The Board also finds that VA has complied with all assistance provisions of the VCAA. The evidence of record contains service treatment records; post-service VA treatment records; VA examination reports; records from the Social Security Administration (SSA), including associated private treatment records; and lay statements. There is no indication of relevant, outstanding records that would support the Veteran's claim for service connection. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran has also been afforded a VA examination to obtain information as to the nature and etiology of his claimed psychiatric disability. As explained below, the Board finds the VA examination of record and addendum medical opinion are adequate for adjudication purposes. Also, there been substantial compliance with the prior remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Here, the AOJ obtained an addendum opinion from a VA psychologist to address the existence of any acquired psychiatric disorder superimposed on the Veteran's preexisting personality disorder. Thereafter, the AOJ readjudicated the claim, as reflected by the December 2015 SSOC. There is no allegation of any error or omission in the assistance provided. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the service connection claim on appeal, and that, therefore, there is no prejudice to the Veteran in proceeding with a decision on the claim, at this juncture.. II. Analysis The Veteran contends that he has generalized anxiety disorder and major depressive disorder that began during military service. In February 2008 correspondence received with his claim, he related that he was standing in formation during basic training when he started trembling uncontrollably. When he tried to stop the shaking, it "resulted only in more violent tremors." He states that a doctor evaluated him, finding that the Veteran had experienced an "acute anxiety reaction." He explained that "since this is a psychotic reaction, my confidence was shattered, leading to chronic depression." He added that prior to that event he "was under the impression that [he] was coping well." Her also reported that, towards the end of his service, he was hospitalized at the Goodfellow, Texas Air Force Base (AFB), and the treating doctor referred to the Veteran "variously as 'paranoid,' 'schizoid,' 'manic-depressive,' [and] with a 'self-destruction [sic] impulse.'" Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). 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). Certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). The Board notes that personality disorders are not diseases or injuries for compensation purposes, and therefore are not disabilities for which service connection can be granted. See 38 C.F.R. § 3.303(c) (2015). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon a preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2015); Carpenter v. Brown, 8 Vet. App. 240 (1995). The Veteran's service treatment records do not document the event the Veteran described in which he was reportedly diagnosed with acute anxiety reaction during basic training, but do show he sought psychiatric evaluation and treatment. An April 1968 psychiatric clinic note reflects the Veteran's report of having suicidal impulses. He was admitted for observation and discharged 11 days later with a final diagnosis of schizoid with paranoid elements; the treating psychiatrist recommended an administrative discharge. During the hospitalization, the Veteran disclosed using LSD and marijuana. Several days later, the psychiatrist prescribed Stelazine, an anti-psychotic medication. In May 1968, the Veteran presented for a psychiatric evaluation with complaints of "depression and anxiety, which he feels was brought on because the OSI [Office of Special Investigations] is investigating him for use of drugs." He also "claimed self-destructive feelings since the OSI began the investigation." His security clearance was also revoked. He admitted using LSD on three occasions in 1967 and smoking marijuana as often as twice a week from April 1967 to February 1968. He reported becoming paranoid under the influence of LSD. He indicated he could not remember his father and had no contact with him, and he was not close to his mother or step-father, feeling "unwanted from a very young age." He completed high school at age 17 and worked various minor jobs before joining the Air Force in January 1967 "to get away from home and see the world." He stated he "managed okay in basic and at language school," doing what he was told to do, but not liking the military. He admitted drinking a "good deal when he could afford to and has since high school days." He reported feeling frightened of the future, anxious about what the Air Force would do to him next, and very suspicious of the OSI. On mental status examination, the psychiatrist remarked that the Veteran "impresses me as immature, tense, and anxious." He appeared "somewhat depressed, but his stream of thought and speech was logical and goal-directed. He was fully oriented and his associations and memory were intact. The psychiatrist concluded there "was no evidence of a psychiatric disorder of neurotic or psychotic proportions." The diagnosis was schizoid personality, severe. During a May 1968 psychiatric clinic visit, the Veteran reported "some depressive feelings" and having ideas that the "whole world is against him." The psychiatrist recommended the Veteran continue on Stelazine. A hospital appointment note from the same day reflects the Veteran was admitted for schizoid personality with paranoid elements and would be held until discharge. A June 1968 report of medical history completed in connection with the pending administrative separation reflects the Veteran's report of having depression or excessive worry. A physician's summary elaborated that the Veteran had been "fully evaluated for depression and excessive worry" by an Air Force psychiatrist and administrative separation was recommended. A corresponding medical examination report documented abnormality of psychiatric function, identified as schizoid personality. In a summary of defects and diagnoses, the examining physician again reported that the Veteran had schizoid personality, but indicated that the Veteran had no psychiatric disease. A July 1968 medical record reflects that the Veteran was discharged from the Air Force hospital on the date he separated from military service. The psychiatrist commented that the Veteran had a long history of schizoid adjustment to life, took LSD, and showed some decompensation. The impression at discharge was schizoid personality with paranoid elements, which existed prior to service and was not incurred in the line of duty. Post-service VA and private treatment records document ongoing treatment for the Veteran's personality disorder and subsequently-diagnosed psychiatric disorders. A March 1974 VA consultation request provided a provisional diagnosis of personality disorder with history of drug use and rage outbursts. During the psychiatric consultation the same day, he complained of an inability to get along with his live-in girlfriend and feeling angry when other people do not understand his logic. He stated he believed his military service was responsible for his mental condition. He denied being treated or seen by a psychiatrist since discharge, but now that things were "worse than ever," he wanted help. He disclosed smoking "pot" and tripping on LSD "now and then." Following a mental status examination the impression was character disorder; history of drug abuse; history of rage outbursts. A May 1974 progress note reflects that the Veteran had initially requested to be hospitalized because he had lost his temper and struck his girlfriend, and he was depressed and afraid he would lose his temper again. However, because much of the problem was focused on the relationship, the Veteran and his girlfriend were seen together. Subsequent treatment records dated in 1974 reflect ongoing counseling together and individually with the Veteran focused on their relationship. The records also reflect treatment to help the Veteran improve his coping skills. For example, in September 1974 he describing being bothered by the "irrationality" of others and ultimately coping by "hysterical outbursts, sometimes followed by self-inflicted cutting of his arms." During VA treatment in June 1975, the Veteran reported a two-day history of moderately severe anxiety and flight of ideas precipitated by difficulties in school and with his relationship with his girlfriend. The psychology intern indicated the Veteran's symptoms were consistent with neurotic anxiety. The Veteran was afforded a VA psychiatric examination in August 1985 in connection with his prior claim. He stated that he was afflicted with anxiety and depression and that he first experienced anxiety during basic training. Following a mental status examination, the diagnosis was schizoid personality with paranoid elements. Private treatment records dated from October 1996 to June 1998 document the Veteran's reports of depression and anxiety, job loss due to testing positive for marijuana use, and financial stress. Diagnoses included the following: major depression, recurrent; rule out panic disorder; generalized anxiety disorder; mixed personality symptoms versus disorder; history of bipolar disorder treatment; and history of polysubstance abuse. Prescribed medications included Paxil, Risperdal, BuSpar, and Wellbutrin. In his June 1998 application for SSA disability benefits, the Veteran claimed anxiety and depression as disabling conditions, which first bothered him around 1989. He described "feelings of persecution by both management and coworkers." SSA disability benefits were awarded, effective in November 1996, based on the primary diagnosis of affective disorder and the secondary diagnosis of anxiety-related disorder. In August 1998, the Veteran presented to the VA Social Work Service as a self-referral for depression and reported having problems with anxiety since military service. The diagnosis included recurrent major depressive disorder without psychotic features. Subsequent VA treatment records dating since 2004 reflect ongoing mental health treatment. Diagnoses included major depressive disorder; rule out social phobia; rule out psychotic disorder NOS (not otherwise specified); prolonged bereavement following the death of the Veteran's spouse in 2004; anxiety with depression; and generalized anxiety disorder. The Axis II diagnosis included schizotypal personality features, personality disorder NOS, and schizoid versus avoidant personality features. During a May 2010 VA examination in connection with the current claim, the Veteran stated that his childhood was "basically normal" except that his stepfather was physically abusive, adding that it "seemed he was a 'problem' for his stepfather." He also described having trouble socializing and conversing with peers. He acknowledged using LSD once during military service while in language school and smoking marijuana fairly regularly. After completing the language school, he decided to stop using marijuana because he had a "good job" with top-secret security clearance. However, he reported being accused of having drugs while in language school and losing his clearance, making him unable to do his job. He expressed that his "reaction" to the charges got him into so much trouble. He described becoming very anxious and upset about losing his clearance and seeking mental health treatment. In additional to several outpatient treatment sessions, he reported being hospitalized because he "was a mess" and "had the Federal government breathing down me." He also described becoming very anxious and shaking uncontrollably during basic training while in formation to receive shots and being taken to the doctor for evaluation. He stated he did not trust anyone, so he just reported being extremely cold, and he did not receive any type of mental health treatment at that time. Regarding current symptoms, the Veteran reported having periods of depression at least once a month that last for several hours until something distracts him from it, and having these symptoms "since he was busted in the Air Force." He described feeling anxious very frequently, explaining that interacting with people makes him very anxious and he tends to isolate himself to cope. He stated he had been "high strung" most of his life, but that it seemed to worsen after his "acute anxiety reaction" while in basic training. Finally, he reported a history of cutting his arms for "relief" and a "soothing" effect for a "bunch of years," but not cutting himself for the past six to eight years. The examiner observed several scars on the Veteran's forearm consistent with this report. Following a review of the claims file and mental status examination, the Axis I diagnoses were major depression, recurrent, moderate; marijuana dependence; alcohol abuse, episodic; and bereavement, complicated. The Axis II diagnosis was personality disorder NOS with schizoid features. The examiner opined that the currently diagnosed personality disorder was the same disorder for which the Veteran was treated in service, and the personality disorder did not appear to be related to his substance abuse. Regarding the depressive and anxiety symptoms reported near the end of military service, the examiner noted that the Veteran had reported these symptoms in the context of disciplinary difficulties as a result of his substance use. The examiner additionally noted that, while the Veteran had an Axis I diagnosis of major depression now, he was not diagnosed with an Axis I psychiatric disorder while in service. In a September 2015 addendum report, a different VA psychologist noted review of the Veteran's claims file, and identified all current Axis I psychiatric diagnoses since the 2008 claim for VA benefits . The psychologist opined that none of the disorders existed prior to service. The psychologist also opined that there was no evidence of a superimposed psychiatric disorder on the Veteran's preexisting [Axis II] personality disorder during service resulting in a current acquired psychiatric disorder. In support of the conclusion, the psychologist emphasized that while symptoms of depression and anxiety were noted in service, the examiner [an Air Force psychiatrist] specifically noted the Veteran did not meet the criteria for any such disorder. Rather, he was only diagnosed with schizoid personality, severe, while in the military. The reviewing psychologist also observed that the Veteran's in-service depression and anxiety symptoms were shown to be in response to a specific situation, being investigated for drug use while in the military and his security clearance being jeopardized. The Board has considered the medical and lay evidence of record and finds that service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, is not warranted. To the extent the Veteran contends that he has a current Axis I psychiatric disability that began during military service or is related to his reported symptoms of anxiety and depression during service, he is not competent to provide such a diagnosis or medical nexus opinion. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). See also Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that PTSD is not the type of medical condition that lay evidence, standing alone, is competent and sufficient to identify). However, he is competent to describe events he experienced during military service, to identify many symptoms associated with psychiatric impairment, and to report the onset and continuity of many symptoms associated with psychiatric impairment. Here, despite the credible evidence that the Veteran experienced symptoms of anxiety and depression during military service in connection with the investigation of his drug use and revocation of his security clearance, the Board finds that the most persuasive evidence of record establishes that an acquired psychiatric disorder was not incurred in service or superimposed upon the Veteran's preexisting personality disorder. Again, the Veteran was evaluated by a psychiatrist during service and although he reported symptoms of anxiety and depression, the military psychiatrist found there "was no evidence of a psychiatric disorder of neurotic or psychotic proportions," but only schizoid personality disorder. In addition, the Board finds persuasive the conclusions of the May 2010 VA examining psychologist and September 2015 reviewing VA psychologist that the Veteran did not have a diagnosed Axis I psychiatric disability in service, or a superimposed psychiatric disorder on the preexisting personality disorder during service resulting in a current acquired psychiatric disorder, as each explained the reasons for the conclusions reached based on an accurate characterization of the evidence of record and detailed examination findings (in the case of the May 2010 examiner). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Specifically, the VA psychologists explained that the reported symptoms of anxiety and depression were noted, but the military psychiatrist specifically found the Veteran did not meet the criteria for a psychiatric disorder. Rather, the military psychiatrist diagnosed schizoid personality and found the symptoms of depression and anxiety related to the disciplinary actions as a result of the Veteran's substance use. Moreover, these conclusions are consistent with the other evidence of record. Here, consistent with the conclusion of the military psychiatrist, post-service psychiatrists and psychologists also diagnosed character disorder or schizoid personality disorder. Similarly, the evidence of record appears to reflect that the Veteran was first diagnosed with an anxiety disorder in June 1975 when a VA psychology intern found the Veteran's two-day history of anxiety and flight of ideas consistent with neurotic anxiety, and that he was first diagnosed with major depression in the mid- to late-1990s by his private doctor, who also diagnosed generalized anxiety disorder. Accordingly, the Board finds that these facts support the conclusions of the May 2010 and September 2015 VA examiners and tend to contradict the Veteran's assertion that he has had anxiety and depression disabilities since he experienced symptoms of anxiety and depression during military service. Thus, the Board finds the opinions of the May 2010 and September 2015 VA psychologists to be of significant probative weight and more persuasive than the Veteran's lay assertions as to the onset and continuity of his current psychiatric disabilities. In summary, the Board accepts the May 2010 and September 2015 VA psychologists' opinions as the most persuasive evidence on the question of whether there exists a medical nexus between a current acquired psychiatric disorder and service, as such were based on a review of all available historical records, and contain stated rationales for the medical conclusions that are consistent with and supported by the record. See Boggs v. West, 11 Vet. App. 334 (1998). The VA examiners were aware of the Veteran's in-service psychiatric symptoms per the Veteran's statements and review of the claims file, but concluded that he did not have a current psychiatric disorder that began during military service, or was otherwise medically related to service and superimposed on his preexisting personality disorder. Thus, the Veteran's contentions as to continuity of symptoms of anxiety and depression are outweighed by the probative medical evidence and opinions of record, For all the foregoing reasons, the Board finds that the claim for service connection for an acquired psychiatric disorder must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not for application in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and major depressive disorder, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs