Citation Nr: 1034831 Decision Date: 09/15/10 Archive Date: 09/21/10 DOCKET NO. 04-43 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from April 1990 to April 2000. The Veteran's appeal as to the issue listed above arose from a July 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2007, the Board remanded the claim for additional development. In May 2006, the Veteran was afforded a videoconference hearing before F. Judge Flowers, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). FINDING OF FACT The Veteran does not have an acquired psychiatric disorder as the result of his active military service. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder that was incurred during his active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran argues that service connection is warranted for an acquired psychiatric disorder, to include schizophrenia, depression, and posttraumatic stress disorder (PTSD). He has testified that he was treated for psychiatric symptoms on one occasion, in 1998, but that he was not provided with any medication at that time. He asserts that he has had psychiatric symptoms since that time. He has also testified that he witnessed, and/or heard about, stressful incidents during his service. As used herein, the term "acquired psychiatric disorder" is defined to include PTSD, but not to include a personality disorder. Personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2009). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Service connection may also be granted for certain diseases, to include psychoses, when they are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Applicable regulations provide that service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). During the pendency of this appeal, a new version of 38 C.F.R. § 3.304 was enacted. See 75 Fed. Reg. 39843 (July 13, 2010). However, these changes do not remove the requirement of a presently existing disability, and as the Board has determined that the Veteran does not have PTSD, no further notice or development is warranted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Veteran's personnel file shows that on several occasions in 1998, he was determined not to be eligible for the Air Force Good Conduct Medal. The reasons were listed as "UIF/Letter of Reprimand/Letter of Admonition," and/or "Control Roster." This evidence includes a number of "Enlisted Performance Reports" (AF Form 910) which do not note any psychiatric symptoms; two of these reports indicate that the Veteran failed to meet minimum standards with regard to the question, "How well does ratee comply with standards? (consider dress and appearance, weight and fitness, customs, and courtesies)." His discharge (DD Form 214) indicates that he received the Air Force Good Conduct Medal with one device, the Air Force Achievement Medal, and the Southwest Asia Service Medal with one device, and states that the reason for separation was "reduction in force." Other than an entrance examination report, dated in July 1989, which does not contain any relevant findings, the Veteran's service treatment reports are not of record; the RO has determined that they are unavailable. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2001 and 2010, and reports from the Social Security Administration (SSA). This evidence includes reports from the Mercy Memorial Hospital (MMH), which show that on December 30, 2001, the Veteran was hospitalized for psychiatric symptoms for about eight days. He gave a family history of psychiatric hospitalizations, and he denied a history of psychotropic medications or any inpatient psychiatric treatment. He reported being in counseling during service due to depression, and getting angry very easily. The Axis I discharge diagnosis was major depressive disorder with psychotic features. Reports from the Monroe Community Mental Health Authority, dated between December 2001 and 2003, show ongoing treatment for psychiatric symptoms, with diagnoses of major depressive disorder, psychotic disorder NOS (not otherwise specified), and alcohol dependence. A December 2001 report notes that the Veteran denied a history of inpatient or outpatient psychiatric treatment, and that he reported a family history of schizophrenia and bipolar disorder. See also February 2002 report. VA hospitalization reports, covering treatment provided over about 12 days in January 2004, show that the Veteran's discharge diagnoses were depression NOS, rule out schizophrenia, and rule out bipolar disorder. With regard to his family history, the Veteran reported that several uncles had schizophrenia and bipolar disorder, and that there was a "diffuse history of depression." VA progress notes, dated between 2003 and 2007, show that the Veteran received ongoing treatment for psychiatric symptoms. This evidence shows that he was primarily diagnosed with bipolar disorder. There are also notations of major depressive disorder, and depression. This evidence shows that the Veteran denied participation in combat, and that he reported having "promotion problems," and being discharged, due to being overweight. See e.g., reports dated in February 2004, September 2005, and April 2006. A decision of the SSA, dated in January 2005, shows that the Veteran was determined to be disabled as of December 2001, with a primary diagnosis of affective disorders, and a secondary diagnosis of anxiety-related disorders. Associated state disability reports contain diagnoses of bipolar disorder NOS, PTSD, and psychosis NOS. A VA examination report, dated in May 2009, indicates that it was completed by a VA clinical psychologist ("J.W.") The report notes that the Veteran "denies experiencing any stressor which causes him difficulty at this time." The Axis I diagnosis was bipolar disorder. The examiner stated, "bipolar disorder is less likely as not (less than a 50/50 probability) caused by or a result of military service." The examiner explained that supporting literature suggests a strong bio-genetic etiology for this disorder with less support for environmental etiology, and that the Veteran did not supply a history of an event which might have led to similar symptoms. The examiner stated that the Veteran indicated that his problems became pronounced when he got married, and that he believed that his relationship with his wife initiated the onset of his problems, and that this was after his service. The examiner indicated that the Veteran's C-file was not available. A VA PTSD examination report, dated in August 2009, completed by J.W., shows that the Veteran denied participating in combat, and that he "denies experiencing any stressor which causes him difficulty at this time." The Axis I diagnosis was bipolar disorder. The examiner stated that the Veteran does not meet the DSM-IV criteria for a PTSD diagnosis. See the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). The report contains an etiological opinion that is identical to that provided in the May 2009 VA examination report. The examiner stated that the Veteran's C- file had been reviewed, and that the May 2009 examination report erroneously indicated that the C-file had not been reviewed prior to the completion of that report. In an addendum, dated in January 2010, J.W. stated that, after another review of the Veteran's C-file, that the Veteran's current diagnosis was bipolar disorder. It was further stated, "There is not evidence within the C-file nor upon interview to support a claim of Posttraumatic Stress Disorder." J.W. stated that the Veteran's C-file was not available at the time that the Veteran was examined in May 2009, but that his C-file was reviewed prior to the issuance of the May 2009 examination report, that there have been two subsequent reviews of the Veteran's C-file, and that the findings in the May 2009 examination report were unchanged. As an initial matter, the Board has determined that the evidence shows that the Veteran does not have PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998) (holding that under 38 U.S.C.A. §§ 1110 and 1131, a veteran must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). The vast majority of the diagnoses in the VA progress notes do not include PTSD, none of the notations of PTSD include findings to show that all of the criteria for PTSD have been met, see Quick Reference to the Diagnostic Criteria from DSM-IV at 209-210 (American Psychiatric Association 1994), and the Veteran was not afforded a PTSD diagnosis in the May 2009 or August 2009 VA examination reports. The January 2010 VA addendum specifically ruled out PTSD. The evidence shows that these opinions were based on a review of the Veteran's C-file. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran does not have PTSD. With regard to an acquired psychiatric disorder other than PTSD, the earliest post-service evidence of an acquired psychiatric disorder is dated no earlier than December 30, 2001. This is about 1 year and seven months after separation from active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no competent evidence showing that the Veteran has an acquired psychiatric disorder that is related to his service. In this regard, the only competent opinions are found in the VA examination reports, dated in May and August of 2009, and both of these opinions weigh against the claim. Finally, there is no medical evidence to show that a psychosis was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With respect to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). 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). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issue on appeal is based on the contention that an acquired psychiatric disorder was caused by service that ended in April 2000. The Veteran has testified that he was depressed during service, however, in the May 2009 VA examination report, the Veteran indicated that his problems became pronounced when he got married, and that he believed that his relationship with his wife initiated the onset of his problems. The Veteran's assertions are competent evidence to show that he experienced psychiatric symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, given the conflicting histories that he has provided, the probative value of his testimony is reduced. Competency of evidence must be distinguished from the weight and credibility of the evidence, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; if the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to a veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board finds that the Veteran's oral and written testimony is insufficiently probative to warrant a grant of the claim. The Veteran does not have the requisite skill, knowledge, or training, to be competent to provide a diagnosis of an acquired psychiatric disorder, or to state whether an acquired psychiatric disorder was caused or aggravated by service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this regard, while the Board acknowledges that the absence of any corroborating medical evidence supporting his assertions does not render his statements incredible in and of itself, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of a veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition). In this case, the post-service medical records do not show any relevant treatment prior to December 30, 2001, and there is no competent evidence of a nexus between an acquired psychiatric disorder and the Veteran's service. In contrast, there is a competent opinion, in the form of two VA examination reports, against the claim, as well as a competent opinion stating that the Veteran does not have PTSD. Given the foregoing, the Board finds that the post-service medical evidence outweighs the Veteran's contentions to the effect that he has an acquired psychiatric disorder that is related to his service. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in February and April of 2004, and February 2007. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Board first notes that the Veteran's service treatment reports are not available. Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the service treatment reports. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). The Board is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The Board is satisfied that its duty has been met and that all reasonable efforts to develop the record have been made. The National Personnel Records Center ("NPRC") has reported that the Veteran's service treatment reports cannot be found. In February 2007, the RO contacted the Veteran and informed him of this fact, and requested that he provide any service medical records, post- service medical records, or other information which may be helpful to his claim. See 38 C.F.R. § 3.159(e) (2009); Dixon. In March 2010, the RO issued a memorandum which contains findings to the effect that the Veteran's service treatment reports are not available, and that any further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(d) (2009). In summary, it appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records, and his SSA records. The Veteran has been afforded examinations, and an etiological opinion has been obtained. The examiner indicated that the Veteran's claims file has been reviewed. In May 2006, the Veteran was afforded a hearing. Therefore, the Board finds that VA has satisfied its duty to assist under Cuevas v. Principi, 3 Vet. App. 543, 548 (1992), and that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). As a final matter, in January 2007, the Board remanded this claim for additional development. The Board directed that the Veteran be issued a VCAA letter notifying him of alternative forms of evidence that he may submit in support of his claim, that his SSA records be obtained, that he be afforded an examination, and that an etiological opinion be obtained. In February 2007, the Veteran was sent a duty to assist letter in compliance with the Board's directions. In May and August of 2008, the Veteran was afforded examinations. The examiner has indicated that the Veteran's C-file has been reviewed, and the reports (to include the January 2010 addendum) include a summary of the Veteran's reported history, and detailed examination findings. The examiner's etiological opinions are accompanied by a sufficient rationale. Under the circumstances, there is no basis to find that the examiner did not have a sufficient basis for the opinions, or that these examination reports are inadequate. See Prejean v. West, 13 Vet. App. 444, 448- 9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Under the circumstances, the Board finds that there has been substantial compliance with its January 2007 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs