Citation Nr: 1134825 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 09-29 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Fiancee ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2, 1981, to October 15, 1981, with 10 months and 26 days of prior reserve service. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The Veteran appeared and testified before the undersigned Veterans Law Judge at a Travel Board hearing in May 2010. In March 2011, the Board remanded the claim for additional development. The Board notes that new evidence has been received since issuance of the most recent supplemental statement of the case in June 2011 consisting of written statements of the Veteran and a February 2011 medical record showing that the Veteran presented with problems reported by him as anxiety/panic attacks and posttraumatic stress disorder (PTSD), but was diagnosed with other psychiatric disorders and none were related to his service. That evidence was not accompanied by a waiver of RO consideration. 38 C.F.R. §§ 19.37, 20.1304 (2010). Nevertheless, as the Board finds that the new evidence is merely cumulative of the evidence already of record at the time the June 2011 supplemental statement of the case was issued, remand is not necessary for consideration of the evidence by the RO. 38 C.F.R. §§ 19.37, 20.1304 (2010). FINDING OF FACT The preponderance of the evidence does not show that any diagnosed psychiatric disability was incurred in or aggravated by the Veteran's active service or is otherwise related to any aspect of the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011), 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.125 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if it is shown that the Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, in active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R § 3.303 (2010). Service connection for some disorders, including psychoses, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). 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. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (2010). VA considers diagnoses of mental disorders in accordance with the American Psychiatric Association: The DSM-IV criteria for a diagnosis of PTSD include: A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); 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. 38 C.F.R. § 3.304(f) (2010). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010). . It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its entirety. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the Veteran. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a Veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is required to construe a claim for service connection for one psychiatric disorder as encompassing claims for service connection for all psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board will now consider whether service connection for PTSD, bipolar disorder, or any other acquired psychiatric disorder is warranted on a direct basis. Service medical records show that during a September 1980 recruitment examination and an October 1980 reserve service examination, the Veteran denied nervous trouble and depression or excessive worry. Psychiatric examination in October 1980 was normal. Service medical records from the Veteran's active service dated in September 1981 document treatment for a foot disability, but are negative for complaints or clinical findings pertaining to a psychiatric disorder. Service personnel records show that the Veteran was subsequently found unfit for induction and recommended for discharge due to his preexisting foot disability in October 1981. In the absence of any complaints or clinical findings of psychiatric problems during the Veteran's period of active service, the Board finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b) (2010). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's service connection claim. 38 C.F.R. § 3.303(b) (2010). Post service records show that the Veteran has been receiving mental health treatment since at least as early as February 2000 for a psychiatric disability variously diagnosed as psychosis, not otherwise specified; bipolar disorder; schizoaffective disorder; paranoid schizophrenia; delusional disorder; paranoid personality disorder; cocaine-induced psychosis; substance abuse; posttraumatic stress disorder; and general anxiety disorder. Records from private psychiatric hospitalizations in November 2002, January 2003, May 2003, October 2004, and December 2004, are negative for evidence linking the Veteran's psychiatric disorder to his military service. Notably, during some of those hospitalizations the Veteran reported his less than two months of active military service but did not relate any of his psychiatric symptoms to that service. During February 2007 VA psychiatric treatment the Veteran complained of things going through his head since boot camp. Thereafter, during March 2007 and April 2007 private assessments, the Veteran reported a history of trauma during boot camp after seeing a "bloody movie" of live battle footage. The Veteran stated that the movie made him schizoaffective. The Veteran related that in boot camp he experienced fear of going to war and getting killed or killing others. He also reported that he developed PTSD and that aggressive drill sergeants in boot camp brought on "scary boss syndrome." Medical records after February 2007 show continued psychiatric treatment. During December 2009 private psychiatric treatment, the Veteran reported that when he joined the military, he was excited about going to Iran to free the hostages but began having nightmares of combat and daymares. He reported that he was discharged due to his right foot disability, but he felt that he should have been discharged for PTSD for not going to war. He also reported that he was traumatized by a sergeant in boot camp. In subsequent private psychiatric treatment dated from February 2010 to April 2010, the Veteran repeated similar complaints regarding "military stuff" in his head, including military songs resonating in his head over and over and nightmares about terrorists attacking him. The Veteran also reported that he began having nightmares related to terrorists and a soldier trying to kill him when he first joined the service, and that symptoms of anxiety and paranoia increased when he went to boot camp. He again referenced a drill sergeant that yelled at him. During a May 2010 Board hearing, the Veteran asserted that he suffered from PTSD stemming from the Iranian hostage crisis. Specifically, the Veteran testified that around the time he enlisted in the military reserves, the Iran hostage crisis occurred and he subsequently started having nightmares and daymares that he was going to be shot by terrorists. He then started drinking. Then, after going to boot camp, his symptoms increased and he wanted to go over and rescue the hostages. He also testified that a fellow soldier became suicidal on the firing range during boot camp and pointed an M-16 at the Veteran and then at himself. The Veteran testified that he had panic attacks, flashbacks of the soldier with the M-16, and got paranoid around people from the Middle East. He also reported that he was not treated for his psychiatric problems in service but was told to seek treatment when he got home. He indicated that a medical provider, identified as a physician's assistant, told him that his problems were related to military service. A February 2011 private medical report notes that the Veteran reported his problems as PTSD and anxiety/panic attacks. The physician diagnosed schizoaffective disorder, generalized anxiety disorder, drug dependence, and alcohol dependence. The Veteran sought a decrease in PTSD and anxiety symptoms. After treatment a reduction in anxiety was noted. After a careful review of the pertinent evidence of record, the Board finds that service connection is not warranted for any psychiatric disability. The weight of the post-service medical records does not show that the Veteran's current psychiatric symptoms are related to his period of active service. No treating provider has offered an opinion that the Veteran's current psychiatric disabilities were caused by any of the Veteran's alleged stressors or that any current psychiatric disability is related in any was to his service. Additionally, the competent evidence of record does not show that it is at least as likely as not that any of the Veteran's current psychiatric disabilities were incurred in, aggravated by, or are otherwise related to his active service. The Board acknowledges the Veteran's statement during his May 2010 Board hearing that a physician's assistant told him that his psychiatric disability is related to service. The Board further acknowledges that several mental health providers have noted the Veteran's belief that his psychiatric problems were caused by or are related to his period of active military service. Nevertheless, the Board observes that none of the examiners' notations were enhanced by additional medical comment from the physician and, thus, do not constitute competent medical evidence that any current psychiatric disability is related to service. Therefore, that evidence does not constitute a medical opinion, but a transcription of a belief by the Veteran. The bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. Howell v. Nicholson, 19 Vet. App. 535 (2006); LeShore v. Brown, 8 Vet. App. 406 (1995). Furthermore, for reasons discussed below, the Board finds the Veteran's lay statements to lack credibility. The Board considers it significant that the earliest evidence in the record of psychiatric treatment is a reference to a hospitalization in February 2000, nearly 20 years after the Veteran's less than two month period of active service. In view of the lengthy period without complaints pertaining to a psychiatric disability, the Board finds that the evidence is against a finding of a continuity of symptomatology, and that weighs heavily against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the competent evidence of record does not show that any psychosis was diagnosed within one year of separation and, thus, presumptive service connection for an acquired psychiatric disorder is not warranted. Furthermore, the Veteran's period of active service is not of sufficient length to qualify for consideration for presumptive service connection. 38 C.F.R. §§ 3.307, 3.309 (2010). Moreover, at that time the Veteran was hospitalized in November 2002, he did not report any of his claimed military stressors or report an onset of symptoms during his active military service. Because the Veteran was seeking initial psychiatric medical treatment at that time, it seems likely that he would report the events preceding his symptoms carefully and accurately, so that the treating physicians would have a fully-informed history of the symptoms and provide appropriate treatment. Rucker v. Brown, 10 Vet. App. 67 (1997). The Board also finds it significant that the Veteran did not relate his psychiatric symptoms to his military service during any of his subsequent psychiatric hospitalizations in 2003 and 2004. In fact, the Veteran did not relate his psychiatric symptoms to his active service until February 2007, more than 25 years after service. Moreover, none of the treating mental health providers has opined that the Veteran's psychiatric disabilities were related to any aspect of his military service. Service connection may be granted when all the evidence establishes a nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the competent evidence of record weighs against a finding of a nexus. Specifically, the competent medical evidence does not indicate that the Veteran's current psychiatric disabilities were either caused or aggravated by any of his reported in-service stressors or any other aspect of his military service. The Board is mindful that the Veteran has asserted that he has experienced chronic psychiatric problems since leaving the military. Lay evidence is one type of evidence that the Board must consider when a Veteran seeks disability benefits. 38 C.F.R. § 3.307(b) (2010). In weighing credibility, VA may consider inconsistent statements, internal inconsistency and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Board has reason to question the credibility of the Veteran's contentions as they are internally inconsistent with the other evidence of record. Specifically, the reports of the various VA and private examinations show that the Veteran has attributed his psychiatric symptoms to different aspects of his military service. Indeed, he has alternately reported that his current mental health symptoms are due to his in-service stressors relating to watching a bloody video, an aggressive drill sergeant, the Iran hostage crisis, and a soldier who pointed an M-16 rifle at the Veteran and then himself. In this regard, the Board notes that the Veteran served on active duty from September 1981 to October 1981, after the Iran hostage crisis situation resolved in January 1981. The Board also notes that the Veteran did not relate his psychiatric symptoms to service until over 25 years after service, and has been noted on occasion to be a poor historian, to be incompetent to handle his financial affairs or render informed consent, and has presented inconsistent statements regarding various other matters, including the onset of a right foot disability. Specifically, the Veteran stated during a recent March 2011 VA examination that he did not have a right foot injury prior to service, although a severe right foot injury prior to service is clearly documented in the Veteran's service medical records and was the basis for the Veteran's separation from service in October 1981. In view of the foregoing, the Board finds that the Veteran's allegations overall lack credibility, and carry little probative or persuasive weight. Caluza v. Brown, 7 Vet. App. 498 (1995). Even if the Veteran's lay assertions were wholly consistent with the other evidence of record, they would be insufficient, standing alone, to support a grant of service connection. The Board acknowledges that the Veteran is competent to testify as to the presence of current mental health symptoms, which are capable of lay observation, and his statements and testimony in that regard are considered credible. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007) (where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation). However, to the extent that he relates his current problems to service, his assertions are not probative. As a lay person without apparent medical expertise, the Veteran is not competent to opine as to medical etiology or to render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Washington v. Nicholson, 19 Vet. App. 362 (2005). Accordingly, his assertions as to medical causation and etiology, absent corroboration by objective medical evidence and opinions, lack sufficient probative value to establish a nexus between the Veteran's current psychiatric problems and his time in service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). The evidence shows various psychiatric diagnoses, but does not show any competent evidence linking any of those diagnoses to the Veteran's service. In sum, the Board finds that the preponderance of the competent evidence weighs against a finding that any psychiatric disability developed during the Veteran's period of service, is related to that service or any event in that service, or that any psychosis manifested to a compensable degree within one year following separation from service. Therefore, the Board concludes that the Veteran does not have an acquired psychiatric disorder that was incurred in or aggravated by service and that no psychosis manifested to a compensable degree within one year following separation from service. As the preponderance of the evidence is against the claim for service connection, that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Veteran Upon receipt of a substantially complete application, VA must notify the Veteran and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the Veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the Veteran about the information and evidence that VA will seek to provide; and (3) inform the Veteran about the information and evidence the Veteran is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2010); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the Veteran to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in April 2007. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the June 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. Pursuant to the Board's March 2011 remand directives, VA requested and obtained records from the Social Security Administration. Therefore, the Board finds that the RO has substantially complied with the Board's remands with regard to this appeal. Dyment v. West, 13 Vet. App. 141 (1999) (remand not required where there was substantial compliance with Board's remand instructions). Although VA has not obtained an examination in relation to the Veteran's claim, the Board notes that the current record contains no competent evidence that the Veteran's psychiatric disability may be associated with his active service. Thus, the Veteran has not presented the evidence necessary to trigger VA's duty to assist him by providing an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4) (2010). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs