Citation Nr: 1044673 Decision Date: 11/30/10 Archive Date: 12/03/10 DOCKET NO. 09-11 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from July 17, 2000 to June 1, 2001. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. An acquired psychiatric disorder was not manifest in service, and the Veteran was psychiatrically normal at separation. 2. A psychosis was not manifest within a year of separation. 3. Symptoms of an acquired psychiatric disorder were not manifest until 2007. 4. No current acquired psychiatric disorder is related to service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Under the VCAA, VA 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 request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a September 2007 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate his claim. This letter also delineated the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The appellant has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the September 2007 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. The Veteran identified treatment from a civilian counselor at Fort. Erwin, while in service. The RO attempted to obtain those records, and received certification from the National Personnel Records Center that no such records exist. The Veteran has not been provided with a VA examination as to the etiology of his psychiatric disorder. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). Here, no examination was required because, as discussed in more detail below, although the Veteran was treated for alcohol detoxification during service, he was not treated for psychiatric complaints, and he was found to be psychiatrically normal at discharge; moreover, there is no continuity of symptomatology for several years after service. As such, there is no injury or disease in service that may be related to a current acquired psychiatric disorder. II. Analysis Veterans are entitled to compensation from the Department of Veterans Affairs if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes initially that, although the Veteran served during a period of war, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy, or that his claimed psychiatric disability is related to combat. As such, the combat rule is not applicable. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d) (2010). The Veteran is currently diagnosed with an acquired psychiatric disorder, of varying descriptions. The primary diagnosis appears to be bipolar disorder, but the record also contains diagnoses consistent with an anxiety disorder, and posttraumatic stress disorder. Thus, the existence of a current disability is not at issue. However, a psychosis has not been diagnosed, and the Veteran does not assert that he has a psychosis. Accordingly, the presumption pertaining to certain chronic diseases that become manifest to a compensable degree within a year of service separation is not applicable in this case. The Veteran contends that he incurred an acquired psychiatric disability in service. On his claim form, he stated he began treatment for a mental condition (manic depression, anxiety, bipolar) while stationed at Ft. Irwin in 2001. However, a review of the service treatment records reveals no treatment for psychiatric issues during service. On a DD Form 2697, completed in March 2001, the Veteran reported that he had been treated for "detox" since his last medical assessment. A May 2001 patient progress report records the Veteran's release from alcohol/drug abuse rehab due to unsatisfactory performance. At separation in April 2001, the Veteran was found to be psychiatrically normal. The Veteran completed a signed report of medical history at separation. When asked about a history of depression or excessive worry, the Veteran responded that he did not know. However, he reported that he had never been treated for a mental condition, that he had never consulted or been treated by clinics, physicians, healers, or other practitioners within the past five years for other than minor illnesses. Thus, there is a clear difference in the Veteran's current statements, and those he made at separation. Notably, while he currently asserts that he was treated for psychiatric complaints in service, at separation, he specifically denied having received any mental health treatment, and reported only treatment for detox. It is the Board's responsibility to evaluate the evidence and to assign each report or opinion its due probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995). In reviewing the evidence, the Board is free to favor one medical opinion over another if the Board provides an adequate statement of reasons or bases. Id.; see also 38 U.S.C. § 7104(d)(1). The Veteran can attest to factual matters of which he has first- hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the 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). In weighing the conflicting statements provided by the Veteran at various times, the point in time in which the statement was made is important because a recounting of an event which is closer to the time that event occurred is naturally less likely to be diluted by the shortcomings of human memory. Thus, the contemporaneous nature of the statement of medical history at discharge is significant. Furthermore, because the Veteran was then seeking only medical treatment, rather than service- connected disability compensation, it seems likely that he would report events carefully and accurately. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). In contrast, when the Veteran thereafter presented his account, he was seeking VA benefits rather than simply medical treatment. The Board is of course cognizant of possible self interest which any veteran has in promoting a claim for monetary benefits. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]. There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting the events of service. Rather, it is his credibility which the Board finds is lacking. Simply put, the report of medical history at separation from service is more credible than the Veteran's later statements made in support of a claim for monetary benefits. Further supporting the Board's conclusion as to the credibility of the Veteran's statements is the fact that the report of medical history at separation is consistent with the normal psychiatric findings at separation, and with the lack of treatment for psychiatric complaints in service. Whereas, his current statements conflict with that evidence. Regarding the Veteran's notation that he was treated for detox in service, VA law provides that no compensation shall be paid if a disability is the result of a veteran's own willful misconduct, including the abuse of alcohol and drugs. See 38 U.S.C.A. §§ 105, 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2010); see also VAOPGPREC 2-97 (January 16, 1997). The law also precludes compensation for primary alcohol abuse disabilities, and secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In addition, the Board notes that the Veteran's actions after service are inconsistent with his claim that he was treated for psychiatric problems in service and experienced such symptoms continuously thereafter. Indeed, the Veteran filed his first post-service claim for compensation in August 2003. However, he limited his claim to an inguinal hernia. At that time, he did not mention any acquired psychiatric disorder. Thus, he demonstrated that he understood the process for filing for service-connected compensation and availed himself of that process where he believed he was entitled. The fact that he did not mention a psychiatric disorder for another four years strongly suggests that he either did not believe he had a psychiatric disorder, or that he did not believe it was related to service. The Board interprets the Veteran's silence with respect to a psychiatric disorder, when speaking with respect to other problems, as evidence that weighs against continuity of symptomatology. Finally, the Board notes that there is no opinion of a qualified medical professional that purports to relate any current diagnosis of an acquired psychiatric disorder to service. Rather, the VA treatment reports appear to relate the onset of psychiatric symptoms to post-service family-related issues. The Veteran clearly has asserted a relationship to service. However, his opinion is based fundamentally on his account of the events of service and after service, which the Board finds to be incredible. As such, his nexus opinion lacks credibility and is assigned no probative weight. In sum, the Board concludes that the Veteran's acquired psychiatric disorder is not related to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs