Citation Nr: 0814311 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-30 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for variously diagnosed psychiatric disorders other than post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1965 to July 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2002 and September 2002 rating decisions by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In November 2005, a videoconference hearing was held before the undersigned; a transcript of this hearing is of record. The veteran's claims file is now in the jurisdiction of the San Diego, California RO. This case was before the Board in December 2005 when it was remanded for additional development. The issue on appeal has been re- characterized to reflect that the veteran apparently seeks service connection for all psychiatric pathology. In February 2006 and February 2008 statements, the veteran raised the issue of entitlement to service connection for PTSD. Since this matter has not been developed for appellate review, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. A psychiatric disorder (other than PTSD) was not manifest during service; it is not shown that any such disability is related to the veteran's service. 2. If alcohol dependence was present during active duty, it resulted from the veteran's own willful misconduct. CONCLUSION OF LAW Service connection for a psychiatric disorder (other than PTSD) is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.301, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was provided content-complying notice by letter in April 2002, prior to the initial adjudication of the claim in July 2002. The letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the veteran was responsible for providing. Although it did not specifically inform the veteran to submit any pertinent evidence in his possession, it informed him of the evidence required to substantiate his claim and that he should submit such evidence or provide the RO with the information necessary for the RO to obtain such evidence on his behalf. March and July 2006 letters provided the veteran notice regarding ratings and effective dates of awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He has had ample time to respond to these letters and supplement the record. Neither the veteran nor his representative alleges that notice has been less than adequate. Regarding VA's duty to assist, the veteran's service medical records (SMRs) and available post-service treatment records have been secured. He has not identified any pertinent, available evidence that remains outstanding. He has been afforded VA examinations. He provided testimony before the Board. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. II. Service Connection Service connection may be granted for disability resulting from injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially 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). Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and was not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 CFR § 3.301(a). Service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and competent (medical) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. The veteran's service personnel records include an August 1968 letter from the veteran to his commanding officer, wherein he requested a transfer to a less isolated duty station. He stated, "My mental stability, I feel, is somewhat effected [sic] by my long absences from my home and family." The veteran's SMRs are silent for any psychiatric treatment or diagnosis. A June 1969 discharge examination report notes that psychiatric evaluation was normal. VA outpatient treatment records from 2000 to 2002 note that the veteran received a psychiatric referral for depression in December 2000. A February 2002 depression screen was positive; the veteran reported drinking six to eight beers a night. A February 2002 PETS nursing intake form notes the veteran's complaints of depression and anxiety for the past four to five years. He reported having no prior psychiatric treatment. He also reported that his mother and two sisters had a history of depression. After psychiatric evaluation, the diagnosis was moderate recurrent depressive disorder with features of anxiety, rule out alcohol abuse. In February 2002, the veteran filed a claim of service connection for (in pertinent part) depression. On September 2002 psychiatric evaluation on behalf of VA, the veteran reported that he was on isolated duty in the Pacific "for a long time" during his military service. He reported that he started missing his family and feeling sad and depressed. Currently, he was drinking 12 beers a day and feeling depressed. He denied hallucinations, suicidal ideation and homicidal ideation. The diagnoses included alcohol dependence, alcohol induced mood disorder and depressive disorder not otherwise specified. September 2002 through May 2003 VA outpatient treatment records note the veteran's ongoing complaints of anxiety and depression. Alcohol abuse was also noted. A September 2002 outpatient treatment record notes that the veteran had experienced depression and anxiety for three to four years; the diagnoses included generalized anxiety disorder, probable major depressive disorder, and alcohol abuse versus dependence. A May 2003 outpatient treatment record notes that the veteran had missed his last appointment with a VA psychiatrist. During the November 2005 hearing before the undersigned, the veteran testified that he was stationed on isolated duty in Iwo Jima for 11 months during his military service. He indicated that there were about 25 members of the Coast Guard stationed on the island. He indicated that he began to feel depressed towards the end of his service on the island, so he began to drink. Thereafter, he was sent to Antarctica. He then requested a transfer in order to be closer to the mainland. He testified that he never sought psychiatric treatment during his military service. He stated that he first sought help for depression from his family doctor in 1971, and then again in 1976 or 1977. He was told that these medical records were destroyed. In an August 2006 letter, Dr. D.C. noted that he had been treating the veteran since November 2005. Current diagnoses included PTSD, major depression, social phobia and anxiety disorder. A November 2006 VA examination report notes the veteran's account that he was stationed on isolated duty in Iwo Jima during his military service. He indicated that this was very boring, and that he and the 25 others who were stationed there would usually spend their days drinking. He indicated that it was stressful knowing that there was an active volcano nearby and that the area was subject to occasional typhoons. After his service in Iwo Jima, he was stationed in New Zealand. His icebreaker made trips to Antarctica and on one occasion, was caught in a typhoon. He was trapped in a flooding engine room for less than a day. The examiner also noted the veteran's long history of alcoholism. Currently, the veteran complained of anxiety, difficulty sleeping, bad dreams, depressed mood, avoidance of other people, difficulty concentrating and poor self esteem. After mental status examination, the diagnoses included alcohol dependence and anxiety disorder, not otherwise specified. After reviewing the veteran's claims file, the VA examiner stated: It is my opinion that [the veteran's] psychiatric difficulties started after service and it appears to me that his alcohol dependence started in the service, likely in Iwogema [sic], because he complained of being bored there, but I do not see that his psychiatric problems have anything to do with his service and, in fact, could be explained by the alcoholism itself. In March 2005, the veteran was awarded Social Security Administration (SSA) disability benefits. VA and private treatment records relied upon by SSA show treatment for many various disabilities, including depression and anxiety. The VA treatment records are noted above. In addition, an April 2004 treatment record from Dr. R.S. notes that the veteran complained of worsening depression since his father passed away at Christmastime and his wife left him. The veteran was found to be disabled, effective January 2002. The following were noted as severe impairments: lumbar strain/sprain syndrome; bilateral wrist arthritis; right biceps tendon rupture; and depression. The veteran's SMRs, including his discharge examination report, are silent for any findings of a psychiatric disorder. It is not in dispute that he currently has variously diagnosed psychiatric disorders. However, there is no post-service medical evidence of such disability until many years after his discharge from service. Consequently, service connection on the basis that a psychiatric disorder became manifest in service and persisted is not warranted. Regarding the etiology of the veteran's current psychiatric disorders, it is noteworthy that his psychiatric diagnoses most recently (on VA examination in November 2006) included alcohol dependence. As is noted above, governing law (see 38 C.F.R. § 3.301(a)) specifically prohibits the payment of compensation for disability due to misconduct, or abuse of alcohol or drugs. Regarding the etiology of the veteran's other current psychiatric disorder (most recently diagnosed as anxiety disorder, not otherwise specified, on VA examination in November 2006), the Board notes that no current psychiatric diagnosis has ever been linked to his military service by any medical evidence. To the contrary, the November 2006 VA examiner essentially opined that the claimed disability started after service and is not related to the veteran's military service. There is no medical opinion to the contrary of record. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the claim of service connection for a psychiatric disorder (other than PTSD). Accordingly, it must be denied. ORDER Service connection for a psychiatric disorder (other than PTSD) is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs