Citation Nr: 0809780 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 02-21 838 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to service connection for a claimed innocently acquired psychiatric disorder. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, attorney ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from October to December of 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 RO rating decision. A decision by the Board in December 2004 reopened the veteran's previously denied claim and denied service connection on the merits. The veteran thereupon appealed the Board's decision to the U.S. Court of Appeals for Veterans' Claims (Court). In July 2006, the Court issued an Order granting a Joint Motion of the parties to vacate the Board's decision, based on a finding that VA had failed to obtain disability records from the Social Security Administration (SSA). The Court's Order remanded the case to the Board so that the SSA records could be obtained. The Board remanded the case to the RO in January 2007 for action in compliance with the Court's Order. As noted in detail hereinbelow, the RO complied with the instructions, and the case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran is not shown to have manifested complaints or findings referable to an innocently acquired psychiatric disorder, including schizophrenia, in service or for many years after his discharge therefrom. 3. The veteran is shown to have had a personality disorder prior to entering military service. 4. The evidence does not clearly and unmistakably establish that the veteran had an innocently acquired psychiatric disorder, to include schizophrenia, prior to service. 5. The veteran currently is not shown to have an innocently acquired psychiatric disorder, including schizophrenia, that is due to any event or event of his brief period of active military service. CONCLUSION OF LAW The veteran does not have an innocently acquired psychiatric disability, to include schizophrenia, due to disease or injury that was incurred in or aggravated by his active service; nor may a psychosis be presumed to have been incurred therein; a personality disorder is not a disease or injury for VA compensation purposes. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. The rating decision on appeal was issued in September 2001. In April 2001, prior to the rating decision, the RO sent the veteran a letter advising him that to establish service connection, the evidence must show an injury in service or a disease that began in or was made worse during military service, or an event causing an injury or disease; a current physical or mental disability; and, a relationship between the current disability and an injury, disease or event in service. The Board accordingly finds that the veteran has received notice of the elements required to support his claim, and that he was been afforded ample opportunity to submit such information and evidence prior to issuance of the rating decision on appeal. The letter cited above also advised the veteran that VA is responsible for getting relevant records held by any Federal agency, to include military records, Social Security Administration (SSA) records, and records from VA and other Government agencies. The letter advised the veteran that that VA would make reasonable efforts to obtain relevant records from non-Federal agencies and entities if authorized by the veteran to do so. The Board finds that the letter cited above satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained, the first three content-of-notice requirements have been expressly met in this appeal. The RO did not expressly fulfill the fourth content-of-notice requirement (a request by VA that the claimant provide any evidence in the claimant's possession that pertains to the claim) in that the RO did not advise the veteran to "give us all he's got." However, the Board finds that the requirement has been constructively advised to do so. The veteran has been advised of the evidence required to support his claim, and he has been continuously advised of the evidence of records via the rating decision, via the Statement of the Case (SOC), the Supplemental Statements of the Case (SSOCs), and via the previous adjudication documents of the Board. The veteran has accordingly been constructively invited to submit any evidence in his possession that relates to his claim that is not already of record. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements provided to the veteran prior to the rating decision. However, the Board finds that any arguable lack of full pre- adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), revs' on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, any arguable delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO has given the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded opportunity to submit such information and/or evidence prior to the issuance of the most recent SSOC in November 2007. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran informed the RO of the existence of any evidence-in addition to that noted hereinbelow-that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2006). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim (veteran status, existence of a disability, connection between the veteran's service and that disability, degree of disability, and effective date pertaining to the disability). In this appeal, the veteran's status is not at issue, and as indicated the RO advised the veteran of the second and third Dingess elements (existence of a disability, connection between the veteran's service and that disability). The veteran had not been advised of the fourth and fifth Dingess elements (degree of disability, and effective date pertaining to the disability). However, the Board's action herein denies service connection for the claimed disorder, so no degree of disability or effective date will result from the Board's decision. There is accordingly no possibility of prejudice under the notice requirements of Dingess in regard to the claim for service connection. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service treatment record (STR) is on file, as are medical records from those VA and non-VA medical providers that the veteran identified as having relevant records. The veteran has not identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having additional records that should be obtained before the appeal is adjudicated by the Board. The Board notes at this point that the Court vacated the previous Board decision because a one-line entry in a letter from the veteran's wife asserted that the veteran was receiving Social Security Administration (SSA) benefits. The RO determined on remand that the veteran in fact is not drawing SSA disability benefits. Therefore, the VA's duty to assist in regard to SSA documentation has been satisfied. The veteran's attorney argued in the Appellant's Brief to the Court that VA should remand the case for medical examination, based on an assertion that the medical record was not complete. The Board disagrees, for the reasons discussed hereinbelow. When considering the case in April 2004, the Board determined that the medical evidence of record was conflicting. As noted, the veteran's attending VA psychiatrist submitted an opinion that the schizophrenia pre-existed military service and was aggravated by that service, while a VA reviewing psychiatrist submitted a contrary opinion that the veteran did not have a preexisting psychiatric disorder, including schizophrenia, and that the current schizophrenia was not due to service. The Board thereupon sent the file for review and opinion by a Veterans Health Administration (VHA) expert to resolve the conflicting opinions. The Board determined that an opinion by an expert reviewer was adequate to complete the appellate record; the veteran's attorney insists that the file should be remanded for a new examination by a board of psychiatrists. VCAA states that VA will afford a claimant an examination if VA determines it is necessary to decide the claim, which clearly makes the decision discretionary to VA. 38 C.F.R. § 3.159(c)(4)(i) (emphasis added). The Board finds that examination is not required at this point because the VHA reviewer was just as capable as a VA examiner in addressing any unresolved medical questions. Neither the veteran's current diagnosis nor the current severity of his symptoms is in question. The medical question at hand - whether there is a nexus between the claimed disability and military service - rests on thorough review the claims file (which includes very complete records regarding the veteran's mental status before, during, and after military service), which an expert reviewer can perform as well as a medical examiner. There is accordingly no indication of any benefit to be derived by yet another examination, which will simply further delay resolution of the claim. Remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board accordingly finds no reason to remand for further examination at this point. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim herein decided. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran has advanced two alternative theories of service connection: that he had a preexisting disorder that was aggravated during military service; or alternatively, that his current psychiatric disorder was directly acquired during or as a result of military service. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence that (1) the condition existed prior to service, and (2) the condition was not aggravated by service. The claimant is not required to show that the condition increased in severity in service before VA's duty under the second prong of the rebuttal standard attaches. Since 38 C.F.R. § 3.304(b) conflicts with 38 U.S.C.A. § 1111, the C.F.R. section is invalid and should not be followed. VAOPGCPREC 003-03 (July 16, 2003) In this case, as noted in more detail hereinbelow, the record does not present clear and unmistakable evidence of an innocently acquired psychiatric disorder prior to military service. Accordingly, the presumption of soundness is not rebutted, and the Board cannot proceed under a theory that the veteran had an acquired psychiatric disorder prior to service. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). However, as in this case, the veteran is not shown by clear and unmistakable evidence to have a preexisting condition, the question of aggravation of such a condition during service need not be reached. It accordingly remains for the Board to determine whether direct service connection is warranted. Establishing direct service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In the alternative, service connection may be established by a continuity of symptomatology between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303. Lay evidence of symptomatology is pertinent to a claim for service connection, if corroborated by medical evidence. Rhodes v. Brown, 4 Vet. App. 124, 126- 27 (1993). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson, 2 Vet. App. at 19. Under the provisions of 38 C.F.R. § 3.307, presumptive service connection may be granted for psychosis that becomes manifest to a compensable degree within the first year after discharge from service. However, as noted, there is no evidence of psychosis to a compensable degree within the first year after the veteran's discharge in December 1965, so presumptive service connection for a chronic disorder under 38 C.F.R. §§ 3.307 and 3.309 is not warranted. The veteran's STR includes an enlistment physical examination in October 1965 that notes his psychiatric condition as "normal." An accompanying self-reported Report of Medical History denies history of psychiatric disorder (drug or narcotic habit, nervous trouble of any sort, depression or excessive worry, or previous history of being a patient in a mental hospital or sanitarium). STR shows that, during basic recruit training, the veteran was involved in an unspecified legal offense; in pursuit of the investigation the Marine Corps became aware that the veteran had a preenlistment history of extensive conflict with civilian legal authorities, and in fact had a history of incarceration at the Maryland School for Men, which history he had fraudulently withheld upon enlistment. STR includes medical records from the Crownsville State Hospital showing commitment for evaluation following conviction for larceny; the veteran was held at that facility during the period May-August 1963 before being returned to the Maryland State Institution for Men to complete his sentence. The discharge diagnosis from Crownsville State Hospital was that of sociopathic personality disorder and antisocial reaction. STR shows that the veteran was interviewed by a Marine Corps psychiatrist and determined to be so far without mental defect, disease or derangement as to be able to distinguish right from wrong at the time of the unspecified offense and to be able to understand the nature of proceedings against him and assist in his own defense. The veteran was thereupon discharged from the Marine Corps under honorable conditions; the separation physical examination dated in December 1965 shows psychiatric evaluation as "normal." The Board notes at this point that the preenlistment medical records from Crownsville State Hospital clearly show the presence of diagnosed sociopathic personality disorder and antisocial reaction prior to military service. However, personality disorders are deemed to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, when during service a congenital defect is subject to a superimposed injury or disease, service connection may be warranted. VAOPGCPREC 82-90 (July 18, 1990). A letter from the Maryland Correctional Institution at Hagerstown (dated in October 1980) asserted that, to date, the veteran had been incarcerated at that facility on three occasions to date: April 1963 to September 1963 for larceny and violation of probation (prior to military service); February 1964 to June 1965 for two counts of unauthorized use of auto (prior to military service); and, March 1966 to March 1968 for burglary and escape (within one year of discharge from military service). The records from the Maryland Department of Corrections in Hagerstown are of record relating to his confinement from March 1966 to March 1968. The psychiatric notes from that period show that the veteran was a heroin addict who had smuggled heroin into the prison and attempted to escape in order to procure more heroin when his supply ran out. The psychiatric notes refer to poor insight and immaturity, but do not diagnose any psychosis. The final psychiatric note in June 1967 recommended against transfer to a correctional camp due to poor judgment, immaturity, and risk of flight. Based on these psychiatric records, the Board finds that the veteran is not shown to have had onset of schizophrenia or any other psychosis during the first year after his discharge from service (December 1965 through December 1966). The file contains a psychological evaluation dated in December 1972 while the veteran was serving a sentence in Virginia for statutory burglary and grand larceny. The veteran described a criminal history beginning at age 16 for offenses including larceny, burglary, drunk driving, auto theft, breaking and entering, unauthorized use of vehicles, forgery and escape from correctional facilities. Following a battery of psychological diagnostics, the examiner diagnosed personality disorder and schizoid personality. Follow-up clinical notes show that the veteran escaped custody in January 1973 and was accordingly discharged as escaped. The records from Spring Grove Hospital show that the veteran was transferred by order from Clifton T. Perkins Hospital in June 1975 for continuing psychiatric care and rehabilitation. The veteran was noted to have many arrests for offenses including auto theft, forgery and drug abuse. The veteran eloped during treatment in July 1975, which terminated treatment, and the police were notified. The final diagnosis was that of acute schizophrenic episode and antisocial personality. The veteran was readmitted to Spring Grove Hospital in March 1976, again on order of the criminal court. The final diagnosis was that of antisocial personality. A May 1978 release summary from Springfield Hospital Center states that the veteran had been committed twice under court order for evaluation after being found "not guilty by reason of insanity" on three counts of breaking and entering. No gross psychotic symptomatology was noted on observation, although he was extremely aggressive and combative on examination. The veteran was discharged after two days of observation and examination, with diagnosis of antisocial personality. A March 1980 letter from a psychologist at Eastern Panhandle Mental Health Clinic asserts that the veteran had been in treatment at that facility since September 1976. The psychologist declined to state an opinion regarding military service, except to note that the treatment provided by that facility was after the veteran's discharge from service in December 1965. A VA inpatient treatment record dated in March 1980 shows that the veteran presented himself with delusions of being a Marine being interrogated by the Viet Cong. His wife reported a long history of psychiatric hospitalizations, apparently for schizophrenia. The veteran was discharged from the hospital after two days with final diagnosis of acute schizophrenic reaction. The veteran testified before an RO's Hearing Officer in May 1980 that he felt himself to be entitled to service connection because, prior to service, he had never required medication such as tranquilizers for his nervous condition, whereas after discharge from service he has required such medication. The veteran underwent psychiatric evaluation at the Clifton T. Perkins Hospital Center in December 1984 for five days, as pretrial evaluation prior to trial for charges of assault. The psychiatrist stated that a diagnosis based on a reasonable degree of medical probability could not be given because the veteran was deliberately foiling any attempt to evaluate him in order to malinger a psychiatric disorder. The final diagnosis accordingly was that of malingering, per the forensic staff. An annual psychiatric evaluation by the Thomas B. Finian Center, dated in November 1987, states that the veteran was admitted in October 1986 after arrest for driving while intoxicated, destruction of property and resisting arrest; he was referred for psychiatric examination because of delusional behavior. Admission diagnosis was that of paranoid schizophrenia. The veteran's ex-wife submitted a letter in February 1998 and asserted that she had known the veteran since he was nine years old and that he came back from the Marine Corps as "a different person." Similarly, a March 1998 letter from three acquaintances of the veteran asserted that they knew the veteran before and after military service, and that the veteran was "messed up real bad" when he returned from military service. The letter states that nobody wanted to socialize with the veteran because everyone thought he was crazy. A note by a social worker at the Martinsburg VA Mental Health Clinic (MHC) dated in March 1998 asserts that the veteran had been treated at that facility since the late 1970's for schizophrenia and alcoholism. A July 1999 letter from a VA psychiatrist states that the veteran was undergoing treatment at that facility for chronic paranoid schizophrenia. The physician stated that the record suggested that the veteran had the condition prior to entering service, and that it was aggravated by active service leading to an acute psychotic episode; although psychiatrically stable, the veteran had a history of psychotic episodes since then. In November 1999, the file was reviewed by different VA psychiatrist. The reviewer examined the claims file, including the letter cited hereinabove. The reviewer stated that, based on thorough review of the claims file concerning the veteran's premilitary and postmilitary treatment, the evidence did not support that the veteran had diagnosis of schizophrenia before, during or immediately after military service. The only records that described psychotic symptoms that could possibly help support the diagnosis of schizophrenia (i.e., admission to the Thomas B. Fine Center in 1987 with admission diagnosis of schizophrenia based on psychotic delusional symptoms, and hospitalization in Springfield in August 1979 for schizophrenic reaction) occurred well after the veteran's discharge from military service. The reviewer accordingly concluded, after review of the claims file, that there was no new evidence supporting a preexisting condition of schizophrenia or that military service exacerbated a schizophrenic illness. The previous letter was noted to have drawn conclusions not based on evidence in the file. The reviewer recommended that a follow-up be done to enable the other VA physician to respond and to give clarification for his summary letter. The Board notes that this recommendation was not followed at the time; however, as noted hereinbelow, another favorable statement submitted in May 2003. VA treatment records from the period December 1999 to February 2001 show inpatient and outpatient treatment for paranoid schizophrenia, with varying degrees of success depending on the veteran's compliance with medication. A May 2003 letter from the VA staff psychiatrist, was countersigned a licensed care social worker (LSCW) clinical therapist, and stated that the veteran was being followed for chronic undiffentiated-type schizophrenia with paranoid features. The veteran was reported to be generally compliant with medication. The VA medical personnel stated an opinion that the veteran's condition was at least as likely as not to have occurred while on active military service. The file was subsequently referred for expert medical opinion by a psychiatrist of the Veterans Health Administration (VHA). The VHA reviewer submitted a report in May 2004 listing in detail the relevant medical entries in the claims file, including the opinions cited hereinabove. The reviewer stated three specific opinions as recorded below. First, the VHA reviewer stated that the record did not show by clear and convincing evidence that the veteran had a psychiatric disorder prior to military service, although the records do show a likely personality disorder. Second, the VHA reviewer stated that it was not likely that any acquired psychiatric disorder had its clinical onset during service or during the one-year presumptive period after service, as all evaluations, progress notes, and reports from May 1966 to December 1972 did not document a psychotic or thought disorder. Third, the VHA reviewer stated that it was likely the veteran's chronic paranoid schizophrenia was due to misuse of alcohol or drugs, since numerous notes documented the veteran's heroin use which can cause psychotic symptoms. In summary, the VHA reviewer stated that there was evidence that the veteran likely suffered from polysubstance abuse and personality disorder, but the veteran was not consistently diagnosed with schizophrenia until 1987. Given the veteran's history of drug and alcohol abuse, numerous antisocial acts, and malingering, the diagnosis of schizophrenia was questionable; however, even if the veteran suffered from schizophrenia or another major psychiatric disorder, there was still no clear evidence that the veteran has a service- connected illness. In reviewing the evidence, the Board finds that the veteran has demonstrated competent diagnosis of paranoid schizophrenia from multiple clinicians. Accordingly, the first element of service connection (evidence of a claimed disability) is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this case, the medical opinion of record regarding nexus is conflicting. A VA psychiatrist and clinical psychologist have submitted letters stating an opinion that the veteran had preexisting schizophrenia that was aggravated by service, while two VA reviewers have concluded that the veteran did not have preexisting schizophrenia and that his current schizophrenia is not related to service. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). Further, it is the Board's duty to assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The probative value of medical evidence is based in part on the medical expert's personal examination of the patient. Guerrieri, op.cit. Thus, the opinions in support of the claim may be accepted as probative evidence of current disability. However, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Also, in assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In this case, both favorable statements are simple conclusions of nexus, without any indication of clinical rationale behind those opinions. On the other hand, the opinions of both VA reviewers include thorough rationale for those opinions. To that extent, the opinions of the VA reviewers are more probative. Similarly, factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Both VA reviewers had access to the claims file (including STR and pre-service medical records), while the others did not. Accordingly, the VA reviewers had the benefit of actual treatment records before, during, and after military service showing the extensive treatment for personality disorder but not for psychosis, while the others did not. Given the importance of the veteran's actual pre-military symptomology to the resolution of this appeal, the Board finds this distinction to be important in assessing the probative value of the opinions. In that vein, the favorable opinion asserted that the veteran had a preexisting psychotic condition that was aggravated by service. However, the Board must honor the presumption of soundness unless clear and unmistakable evidence shows that a claimed disability preexisted service; as noted, there is no such clear and unmistakable evidence, so the veteran in this case must be presumed to have been sound (except for the personality disorder, which as noted above is not subject to service connection). To that extent, the opinion does not support a claim of direct service connection. Further, the veteran's STR show that his psychiatric evaluation was "normal" at the time of enlistment and at the time of separation; there is also no indication of psychiatric symptoms during service, including any notation thereof in the report of the Marine Corps psychiatrist who examined the veteran. There would accordingly be no evidence of permanent worsening of the disorder during the veteran's brief two-month period of active duty, even if arguendo he were shown to have a preexisting disorder for which service connection could be granted. Finally, the Board notes that the Court has expressly declined to adopt a rule that accords greater weight to the opinion of the veteran's treating physician over a VA or other physician. Winsett v. West, 11 Vet. App. 420 (1998); Chisem v. Brown, 4 Vet. App. 169, 176 (1993); Guerrieri, 4 Vet. App. at 471-73. In addition to the medical evidence, the Board has carefully considered the lay evidence of record, to include the veteran's testimony and the statements submitted by his ex- wife and his acquaintances. The veteran testified that he did not take psychotropic medications prior to service but has required such medication since his discharge from service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, nothing in the veteran's statement - even if accepted as true - shows how post-service need for tranquillizers could be construed as evidence of nexus. The Board notes in that regard that evidence of a present condition is generally not relevant to a claim for service connection, absent some competent linkage to military service. Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). Regarding the statements by the veteran's ex-wife and acquaintances, "[a] layperson can certainly provide an eyewitness account of a veteran's visible symptoms." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Those laypersons are accordingly competent to comment on the veteran's observed pattern of behavior before and after service. Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999); see also Espiritu, 2 Vet. App. at 494. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone, 8 Vet. App. at 405 (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494-95 (lay person may provide eyewitness account of medical symptoms). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. 465 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. In this case, the Board finds the lay statements to be credible insofar as they describe antisocial behavior of the veteran following his return from active service; such behavior in fact is substantiated by medical records and by the records provided by the Maryland and Virginia departments of correction. However, the statement by the veteran's ex-wife asserting that the veteran returned from service a "changed man" is not credible because it is inconsistent with the medical evidence and Department of Corrections evidence showing the veteran to have engaged in antisocial/criminal behavior before and after military service. The records accordingly show that the veteran's behavior on his return from service was thoroughly in keeping with his behavior prior to enlistment. The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board's determination regarding lay credibility is not based on absence of contemporaneous records. In fact, to the contrary, the Board's finding of credibility is based on inconsistency of the lay statements with the objective medical and lay evidence that is of record. Buchanan accordingly does not apply. Based on the totality of the evidence above, the Board finds that the criteria for service connection for an acquired psychiatric disorder are not met. Accordingly, the claim must be denied. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this matter, the evidence preponderates against the claim on appeal, and the benefit-of-the-doubt rule does not apply. Gilbert, id; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Service connection for an innocently acquired psychiatric disorder is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs