Citation Nr: 0812387 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-00 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). FINDING OF FACT The veteran's current psychiatric disorder is not shown by the medical evidence of record to be related to his active military service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the veteran of what information or evidence is needed in order to substantiate the claim, and it must assist the veteran by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Prior to the initial adjudication of the veteran's claim, the RO's letter dated in December 1999 advised the veteran of the foregoing elements of the notice requirements. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the veteran has also been satisfied in this case. The RO has obtained the veteran's service medical records, his VA treatment records, and his identified private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, all necessary VA medical examinations have been conducted. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 112. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran is seeking service connection for a psychiatric disorder, claimed as depression, anxiety, bipolar disorder, attention deficit disorder, and personality disorder. He attributes his current psychiatric disorder to an incident inservice in December 1968 when he participated in a search and rescue mission of the U.S.C.G. WHITE ALDER, which turned into a recovery mission when the U.S.C.G. WHITE ALDER sunk. The veteran stated that some bodies were recovered, but that 17 bodies were left on the ship. Service connection may be granted for disability due to a disease or injury which was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may 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). In order to establish service connection for a claimed disorder, the following must be shown: (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); see also Pond v. West, 12 Vet App. 341, 346 (1999). The veteran's service medical records reveal that he was diagnosed with and treated for depression, anxiety, and a passive-aggressive personality inservice. Treatment records from July 1969 and August 1969 reveal diagnoses of depression and anxiety. In August 1969, the veteran was placed on sick leave for 10 days due to his depression and anxiety. In December 1969, the veteran was admitted to the United States Public Health Service (U.S.P.H.S.) Hospital in Boston, Massachusetts prior to a captain's mast due to a 10-day AWOL infraction. The veteran stated that he went AWOL to travel to California to jump off of the Golden Gate Bridge and kill himself. He stated that he wanted to kill himself because he had nothing to hang onto. The diagnosis was acute depression with suicidal ideation. Shortly thereafter, the veteran was transferred to the U.S.P.H.S. Hospital in Staten Island, New York because the veteran's problems were too severe to be dealt with at the U.S.P.H.S. Hospital in Boston. In January 1970, the veteran was admitted to the U.S.P.H.S. Hospital in Staten Island for psychiatric evaluation. The veteran reported that he had been depressed and discouraged for months, and the idea of jumping off the Golden Gate Bridge became gradually more appealing. The treatment record notes that in August 1969, the veteran was seen at the hospital for depression and anxiety revolving around difficulties with his parents and with radioman's school in the Coast Guard. The veteran reported a previous history of taking an overdose of tranquilizers, but stated that nothing happened, other than he became sleepy. He reported that if he was returned to the Coast Guard, he would "have to get out one way or another." Mental status examination on admission revealed the veteran to be alert, oriented, and cooperative. He appeared mildly anxious and moderately depressed. There was no psychotic ideation, and he denied suicidal ideation at that time. Memory and judgment were intact, and there was no organic stigmata. The veteran discussed his previous suicide attempt with a blunted and inappropriate affect. The diagnosis was passive-aggressive personality, passive-aggressive type. The veteran was discharged from the hospital as psychiatrically unfit for duty, and it was recommended that the veteran be separated from service in the Coast Guard. The physician concluded that "[b]ecause the patient suffers from a primary inherent personality defect which is not secondary to any disease or injury and existed prior to entrance into the Coast Guard, he is at present unsuitable for further military service." A January 1970 separation examination noted that the veteran's psychiatric status was abnormal and referred to the January 1970 psychiatric evaluation narrative summary from the U.S.P.H.S. Hospital in Staten Island. Private medical treatment records from June 1980 to July 1980 reveal that the veteran was admitted to a hospital for treatment due to his use of "alcohol and uppers." The admitting diagnoses were alcohol addiction, depressive neurosis, psychostimulant drug dependence, and rule out character disorder. The veteran reported that he decided he needed help after a "bout with alcoholism and speed." The veteran was treated with Librium, magnesium sulfate, and a low-calorie diet. The veteran became very anxious and emotionally labile about attending Alcoholics Anonymous, and was treated with Valium and Triavil. The physician noted that the veteran showed evidence of depression quite often with some despondency and sort of psychomotor retardation. He responded well to medication. He attended group therapy and developed good insight in one by one sessions. The final diagnoses were depressive neurosis, habitual excessive drinking, and psychostimulant drug dependency. In March 2003, the veteran underwent a VA examination for mental disorders. The veteran reported feeling very nervous and tense, and stated that most of the time he did not have control over anything. The veteran revealed that he had been married five times and had one child from those marriages. He had many different jobs during the past 30 years, and stated that he left his last job two months ago. He had never been fired from any job, despite his alcoholism. He reported that he had lost over eight months of work due to his depression. Mental status examination revealed that the veteran's thoughts were somewhat confused, but his behavior was appropriate. He denied delusions and hallucinations, and reported that he has had suicidal and homicidal ideation in the past, but did not currently have them. He maintained his personal hygiene, and was oriented in all spheres. His memory was poor, and he reported that he had panic attacks. He was not obsessive and his speech was relevant. He reported that he got depressed frequently and stayed at home, and that his sleep was constantly interrupted. His impulse control was intact. The VA examiner diagnosed alcoholism and substance abuse on Axis I, and depressive disorder on Axis II. A Global Assessment of Functioning (GAF) score of 60 was assigned. In July 2003, the veteran underwent a second VA examination for mental disorders. He complained of feeling like he did not belong, and said that he started falling apart inservice while in radio school. He reported that he did not seem to fit in. The veteran also complained of memory difficulty. The veteran stated that he did not have problems inservice before attending radio school, and denied having a captain's mast inservice. He was reminded that he went AWOL after radio school. The veteran stated that he had no idea why he was admitted for psychiatric hospitalization or what happened. The veteran also noted that, between the ages of 15 and 17, he repeatedly ran away from home and was apprehended at the age of 17 for breaking into a store. He was given the option of either attending reform school or joining the Coast Guard, and joined the Coast Guard so that the charges would be dropped. Mental status examination revealed the veteran to be well groomed with a restricted affect and an apprehensive mood. Eye contact was frequently downcast with speech having long latencies. There was no indication of atypical thought or disorganization. The veteran denied auditory hallucinations, but said that he heard his own voice in his head. He reported seeing shadows in front of his field of vision and on the corner of his eyes. He also reported subjective depression as being constant. He denied current suicidal or homicidal ideations and mania. The veteran reported recent and remote memory impairment, which the VA examiner noted could have been affected by years of polysubstance abuse clouding his chronology. The veteran reported that he continued to drink and occasionally smoked marijuana. The veteran also complained of sleep difficulties and being withdrawn. The VA examiner noted that the veteran's speech was preceded by long latencies, but was fluent, precise, and unpressured. The veteran was alert and fully oriented. The VA examiner diagnosed alcohol abuse and cannabis abuse on Axis I and mixed personality disorder with passive-aggressive and antisocial features on Axis II. A GAF score of 63 was assigned. The VA examiner concluded that the veteran's claim for depression was not well supported and that the original 1970 Axis II diagnoses presented a more authentic picture of the nature of his clinical formulation. The VA examiner further stated that it was felt that the depressive disorder was not prompted by "suicidal ideation (not attempt or gesture in the service) to claims of current depressive diagnosis. It [sic] also not felt that a claim for depression is supported and is also not felt that polysubstance abuse is not prompted by the claim of depression, but probably more related to Axis II features." In a July 2003 addendum to the July 2003 VA examination, prepared by the same VA examiner, it was noted that the Minnesota Multiphastic Personality Inventory (MMPI) was administered to the veteran. The results of the MMPI revealed a "valid report with lifts on clinical scales except mania" which was suggestive of a high degree of psychological distress involving symptoms of depression, to include impaired sleep, appetite, hopelessness, and anhedonia. The profile also supported an extreme sense of alienation and social isolation with concern over others interfering with his life. Neuropsychological testing indicated no attention or memory deficits or cognitive impairment of any kind. The impression was that there was no clinically significant cognitive impairment or malingering of cognitive impairment. The veteran's features of depression were felt to be based on alienation and isolation from others and by their chronicity, probably related to a character disorder. It was noted that the findings of the personality and neuropsycholgical assessment lent credence to the diagnosis of alcohol abuse and cannabis abuse on Axis I, with mixed personality disorder with passive aggressive and antisocial features on Axis II. The VA examiner further noted that, given the floating nature of the MMPI-2, a case could be made that an additional feature involving borderline traits could be added. The VA examiner concluded that "[t]here appears to be no basis from the record or claimant report at present that depression was related to what occurred during his time in the service." The VA examiner explained that the veteran's claim of depression related to the recovery of a dead body while on sea duty does not seem supported given the veteran's history of runaway behavior and choice of either reform school or the Coast Guard as a way of handling a theft conviction at that time. VA treatment records from May 2002 to July 2005 reveal complaints of and treatment for depression, mood disorder, alcohol abuse, and polysubstance abuse. A February 2004 treatment record reveals that the veteran complained of depression and memory lapses. The veteran reported that he could not seem to function, was really down, and had suicidal ideation for years. He stated that he got his will and insurance papers together, had weapons at home, and made a plan. He also noted that he saw things move that were not there and heard phones ringing that were not there. The diagnosis was poorly controlled attention deficit disorder and depression, and the veteran was referred for further psychiatric evaluation. A treatment record from a psychiatric consultation that same day revealed the veteran to be alert, fully oriented, and in no acute distress. His speech was clear and coherent with no overt signs of thought disorder or psychosis. His appearance was appropriate, and his demeanor was friendly. No unsafe or impulsive behavior was displayed. The veteran emphatically denied suicidal and homicidal thoughts; although he admitted to saying that his papers were in order. He stated that the incident was a few weeks ago, but that he did not have any real suicidal intention at that time. He denied auditory and visual hallucinations. His mood was mildly anxious, and his affect was appropriate. Judgment and insight were fair, and intelligence was noted to be average. The diagnosis was reported history of bipolar disorder with chronic depression. A May 2004 VA treatment record noted the veteran's complaints of feeling depressed. The veteran admitted to having suicidal thoughts without plan or intent. The VA physician noted "a number of symptoms associated with mood disorder" including too much sleep, too much eating, crying spells, poor self-esteem, negative outlook on the future, and social isolation. The veteran reported some anxiety and guilt over an incident that occurred in the military. The veteran also stated that he consumed two alcoholic drinks per week, and noted a history of alcohol abuse, marijuana use, cocaine use, speed use, heroin use, and mescaline use. He also indicated that he used LSD "on a 'constant' basis" in 1976. On mental status examination, the veteran was pleasant, cooperative, and attentive. His affect was dysthymic, and was consistent with his reported mood. He admitted to recent suicidal thoughts but adamantly denied plan or intent. His speech was goal-directed, and his thoughts were mostly logical and rational. He noted vague descriptions of possible dissociative symptoms. His intelligence was average. The VA physician noted that there may be some psychotic symptoms, but the veteran did not endorse anything specific. The diagnoses on Axis I were mood disorder not otherwise specified, alcohol use disorder, and history of polysubstance abuse. The diagnoses on Axis II were rule out cognitive disorder, psychotic disorder, and dissociative disorder. A GAF score of 45 to 50 was assigned. The VA physician noted that the veteran appeared to be in a great deal of psychological distress, and by report, this was a chronic state. The VA physician further noted that the veteran has definite symptoms of depression and a significant polysubstance abuse history. Additionally, there were hints of possible psychotic, dissociative, and post-traumatic stress disorder symptoms. VA treatment records from June 2004 and July 2004 note the veteran's complaints of feeling sad, mad, depressed, tired, having poor sleep, having mood swings, and having feelings of not being connected with reality. Mental status examinations revealed the veteran to be casually dressed with good eye contact and normal speech. The veteran's mood was dysphoric, and his affect was congruent. Insight was poor and judgment was good. The veteran was alert and fully oriented, and admitted to suicidal thoughts without plan or intent. During a June 2005 RO hearing, the veteran testified that he tried to obtain his private medical treatment records from R.H., M.D., but was informed that they were lost due to a sewer leak. In support of his claim, the veteran submitted a history of his prescription medication from January 1988 to September 2001. The history revealed that the veteran received and filled prescriptions for Elavil, Synthroid, Buspar, Stelazine, Cytomel, Eskalith CR, Prozac, Methylphenid, Neurontin, and Lithonate. The Board finds that the evidence of record does not support a finding of service connection for a psychiatric disorder. There was inservice evidence of depression, anxiety, and a passive-aggressive personality. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury). However, the first post-service evidence revealing a diagnosis of a psychiatric disorder was in 1980, over 10 years after the veteran's discharge from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). In addition, the medical evidence of record does not demonstrate that the veteran's current psychiatric disorder is related to his active service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed inservice disease or injury and the current disability). The July 2003 VA examiner found that the veteran's psychiatric disorder was not related to service. This is the only medical opinion of record addressing whether a nexus exists between the veteran's current psychiatric disorder and service. The veteran has asserted that his psychiatric disorder is due to his participation in the recovery mission of the U.S.C.G. WHITE ALDER, where 17 bodies were left on the ship after it sunk. Although the veteran's statements are competent evidence as to his symptoms, they are not competent evidence to provide a medical opinion concerning the relationship between his current psychiatric disorder and service. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent evidence to establish pain or symptoms, but not establish a medical opinion). Accordingly, service connection for a psychiatric disorder is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs