Citation Nr: 1136830 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 02-01 845 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include major depression. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The Veteran had active service from September 1974 to April 1977. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2000 rating decision of the VARO in Waco, Texas, that denied entitlement to the benefit sought. In April 2005, the Board denied entitlement to service connection for major depression. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in November 2006, the Court granted a Joint Motion for Remand filed by the Veteran and his representative, and the Secretary of VA, and remanded the case for further development. The case was then remanded to the RO and additional evidence was associated with the claims file. This included the report of a psychiatric examination accorded the Veteran by VA in February 2009 and an addendum by the examiner dated in March 2009. The case was again remanded by the Board in April 2010 for further action. The Veteran was accorded a comprehensive psychiatric examination by VA in May 2010 and the case has been returned to the Board for appellate review. FINDING OF FACT A psychiatric disorder, to include depression, did not manifest in service or for many years thereafter, and is not shown to be related to the Veteran's active service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include major depression, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp 2010)) redefined VA's duties to assist and notify Veterans in the development of claims. Regulations implementing the VCAA are 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; and (3) that the claimant is expected to provide. 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 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 elements are: (1) Veteran's 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). A review of the record reveals that in a February 2001 letter, the Veteran was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. 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. 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 a claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has obtained the Veteran's service treatment records, as well as records pertaining to his Social Security Administration disability determination. With regard to post service private treatment records, to the extent possible, VA has obtained those records as well. VA made every effort possible to obtain additional records, but, in one instance, was notified by a private physician that records requested were not available since he was only required to keep medical records for seven years and the records identified were almost 14 years old. Also, VA attempted to obtain records from a private behavioral health clinic in El Paso, Texas, on two separate occasions, but no response was received. The Board finds that VA has essentially complied with the Board's remand instructions. The Board finds any procedural error harmless, because, as shown below, "it is substantial compliance, not absolute compliance, that is required" under Stegall. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010). See also 38 C.F.R. § 19.9(a)(1) (remand required only when further action "is essential for a proper appellate decision"). Cf. 38 U.S.C.A. § 7261(b)(2) (West 2002) (Court must take due account of the rule of prejudicial error); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (a reviewing Court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative). In this regard, the Board notes that the Veteran has had the opportunity to provide testimony on his own behalf at a personal hearing. The Veteran has been afforded several examinations by VA with regard to his psychiatric status at the present time and a relationship between current problems and his military service. While not all opinions were predicated on the forwarding of all available records, the Board notes that in May 2010, an examination was provided by a qualified medical professional and his opinion is predicated on a comprehensive review of all available records. The examiner also provided a rationale for his opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); See also Nieves Rodriguez-Peake, 22 Vet. App. 295 (2008). The Board is aware that the representative has challenged the adequacy of the examination obtained. However, the Board finds that the examination is more than adequate, is based on a full reading of all available records, and contains a detailed rationale. See Sickels v. Shinseki, 643 F. 3d 1362 (Fed. Cir. 2011)) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2010). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. The Board notes the case has been in appellate status for several years already and another remand would serve no useful purpose. Pertinent Law and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury or disease sustained in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2010). For a Veteran who has served 90 days or more on active service during a period of war or after December 31, 1946, certain chronic disabilities, such as a psychosis, are presumed to have been incurred in service if manifest to a compensable degree of 10 percent or more within one year of service discharge. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease process 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship, that is, a nexus, between the claimed inservice disease or injury and the current disability. Holton v. Shinseki, 557 F. 3d 1362, 1366 (Fed. Cir. 2009). Factual Background and Analysis The Board notes that it has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence in the record. Gonzales v. West, 218 F. 3d 1378, 1380 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will provide a summary of the relevant evidence where appropriate. The Board's analysis below will focus specifically on what the appeal shows, or fails to show, on the claim. A review of the service treatment records reflects that at the time of an outpatient visit in December 1976, notation was made that there had been improper use of alcohol by the Veteran. When he was seen at an aid station in late January 1977, he was described as passive and aggressive. He was also described as fully alert and fully oriented. Mood was level and thinking processes were clear. Thought content was normal. Memory was described as fair. It was stated that he was mentally responsible and able to distinguish right from wrong. He was also described as able to adhere to the right. It was indicated he had the mental capacity to understand and participate in Board proceedings. The examiner stated there was no significant mental illness at that time. At the time of an outpatient visit in early February 1977 a service department physician stated that he believed the Veteran's judgment "may be impaired." The Veteran was presently being followed for improper use of alcohol. In April 1977, he was seen for a laceration over the left eye. It was noted that he had been drinking. He was described as awake and alert. He was not cooperative in disclosing the location of the fight in which he was involved. The post service medical records include reports of treatment and evaluation at a private facility in September 1994 for alcohol dependence. The Veteran stated that he had a chemical dependency. In reporting the Veteran's past psychiatric history, the examiner stated that there was none except for the chemical dependency problem. The diagnoses at that time included alcohol dependence and polysubstance abuse. October 1994 records from the same facility disclose that the Veteran was given a diagnosis of alcohol dependence and a bipolar mood disorder. Records from the Columbia Behavioral Center disclose that the Veteran underwent alcohol detoxification in April 1997. The Veteran stated that he began drinking in high school, began to drink more in service, with increased drinking after involvement in a 1986 motorcycle accident when he was hit crossing a street while being intoxicated. Current diagnoses include a depressed mood. Records from the same facility in June 1997 reflect a diagnosis of major depression, recurrent, moderate. A communication dated in October 1997 from a private physician reflects that the Veteran had multiple substance dependency and alcohol dependency. The Veteran stated before military service he was an all around athlete who participated in many sports and was an A student. He stated that he always competed against himself and expected to excel. However, beginning in boot camp, he felt that he was resented by noncommissioned officers who were in charge of him. He believed this was perhaps that he was so outstanding in his appearance and ability that they were jealous. He also suspected racial discrimination. He began drinking very early in his military service, reportedly in response to the stress of being treated badly. He was involved in multiple fights. He stated that he received multiple Article 15's. This pattern of drinking continued following service. He reported that he was incarcerated in the 1980's and again in 1997 and was just discharged from jail in late 1999. He also reported two psychiatric admissions, beginning in the mid 1990's. These followed reported suicidal attempts. One hospitalization was at the Columbia Behavioral Center and he stated he was given a diagnosis of a manic depressive disorder. Following current examination, he was given an Axis I diagnosis of alcohol dependence, reportedly in long term remission. He was given an Axis II diagnosis of antisocial personality disorder. The examiner stated there was "no evidence to suggest that the Veteran suffers from any psychiatric disorder as a result of any incidents during his military service." The examination was conducted by a VA staff psychiatrist. Reports of VA outpatient records pertaining to treatment and evaluation of the Veteran in the late 1990's refer to depression, a mood disorder, and a history of polysubstance abuse. At the time of one such visit in December 2000, the Veteran reported that while in service he did not experience combat, although he described considerable conflict with peers and superiors during the course of duty. He stated that he planned to make the military a career, but now stated "I feel like a failure." He described a life filled with conflict and violence. He reported eight to 10 years of being in prison secondary to his violence and other behaviors, his use of chemical dependence, and his years of alternating moods of intense anger shifting to sadness and crying. The Veteran was described as presenting with "some manipulative features as evidenced by telling some rather horrific stories while brightly smiling. He tends toward victimized thinking in that he seeks to shift the conversation towards topics that allow him to be a victim, perhaps a center stage for sympathy." He was given assessments of adjustment disorder, mixed features, rule out bipolar disorder, mixed, rule out antisocial personality disorder, rule out explosive personality. The Veteran was accorded a mental disorder examination by VA in February 2009. The claims file was reviewed by the examiner. The examiner made specific reference to the Veteran's service treatment records, including a notation in December 1976 when the Veteran was seen for an injury to the right hand and reported that he had been in a fight. It was recorded that he appeared in a state of intoxication, was "uncooperative, with unsteady gait, slurred speech, and odor of alcohol on breath." Because of that incident he was sent for additional evaluation and treatment planning by the Army substance abuse team. He was evaluated in December 1976 by the U.S. Army Alcohol and Substance Abuse Disorder Treatment Team. In those treatment notes it was recorded that he previously had two jail terms prior to entry into the military, had two Article 15's in the military, and had one episode of being AWOL. In addition, it was indicated that he had a history of poly drug abuse. In late January 1977 he was being processed for an administrative separation. In his report of medical history made at that time, he denied suicidal attempts, denied trouble sleeping, denied nervous troubles of any sort, and denied loss of memory or amnesia. He initially denied depression or excessive worry, but then changed his answer to yes. The examiner opined that "it is more likely than not that these symptoms were secondary to the patient's uncontrolled alcohol use disorder." The examiner noted the Veteran's self-assessment at that time was that he was in "good health." The examiner went on to note that in early April 1977 the Veteran was seen for a laceration over the left eye following involvement in a fight and the record noted that he had been drinking. The examiner also reviewed a note dated April 21, 1977, reflecting that the Veteran "had failure to meet mid standards due to history of alcohol/drug abuse" as well as his appraisal of the Veteran's conduct as "unsatisfactory." The examiner stated that after review of the Veteran's military records, he was unable to locate any military medical records that reflected any treatment for a mood disorder, such as depression. Additionally, he was not able to find any referrals to mental health specialists for evaluation of any potential mood disorder. He went on to say "in summary, there does not appear to be any evidence to suggest that the patient [the Veteran] had a mood disorder while in the military. Rather, what is clear is that the patient had an alcohol abuse disorder that was uncontrolled and likely resulted in his separation from service. My initial report dated 17 Feb 2009 reflects my speculation that the patient may have had a mood disorder while in the service. However, my review of the patient's military medical record refutes this speculation. It is this provider's opinion that the Veteran's mood disorder is more likely than not an illness that developed after the patient was released from active duty and not related to his military service." He stated this conclusion was "congruent" with a rating examination he conducted in November 2007, as well as the aforementioned examination conducted in September 2000. The report of the examiner's evaluation of the Veteran before the claims file was available for review is of record. It refers to the Veteran having been recently seen by the examiner in November 2007. That examination reportedly resulted in diagnoses of: alcohol dependence, early for remission; opioid dependence, early for remission; sedative, hypnotic, or anxiolytic dependence, early for remission; alcohol induced mood disorder, with mixed features, in remission; and personality disorder, not otherwise specified with borderline and antisocial traits. Notation was made that the Veteran had also been seen on separate occasions in 2008 by a VA psychiatrist and a psychiatric resident. One diagnosed him with "major depressive disorder, moderate, recurrent." The other gave a diagnosis of "mood disorder NOS." The pertinent evidence of record also includes the report of another rating examination accorded the Veteran by VA in May 2010 by a VA health care professional. The claims file was reviewed by the examiner. When asked about any legal problems prior to entering service, the Veteran stated "not really." However, the examiner noted that the alcohol and substance abuse disorder treatment team reflected a notation of the Veteran having two jail terms prior to entering the military. VA treatment notes review also reflect that the Veteran was sent to a "detention home" at the age of 10 after being arrested with a group of boys after stealing some tennis shoes. The VA notes also reflect that he began drinking at the age of nine or 10 as his father would give him alcohol. The examiner again made reference to the Veteran's service treatment records, particularly a note dated in February 1977 and April 1977. Following a current examination, the Veteran was given Axis I diagnoses of: Mood disorder, not otherwise specified, in sustained full remission; alcohol dependence, in sustained full remission; an opioid dependence, in sustained full remission. The examiner stated that "after a careful review of previous C and P examination, clinical observation of the Veteran, review of claims file and review of current VA mental health records it is less likely as not that any psychiatric disorder, other than alcohol/substance dependence, began during the Veteran's military service or is related to his service in any way." He stated he was not able to find any referrals to mental health specialists in service for evaluation of a potential mood disorder. He opined that "there does not appear to be any evidence to suggest that the patient had a mood disorder while in the military. Rather, what is clear is that the patient had an alcohol abuse disorder that was uncontrolled and likely resulted in a separation from service. Mental health treatment records also indicate the Veteran experienced alcohol use dating back to the age of 10 and also experienced legal difficulty prior to entering the military. It is this provider's opinion that the Veteran's mood disorder is more likely than not an illness that developed after the patient was released from active duty and not related to his military service. The Veteran reported several times during the current examination of low self-esteem and low-worth related to "my failures in life and letting my family down." The examiner stated his conclusion was congruent with the VA psychologist whose March 2009 addendum is referred to above. Based on the foregoing, the Board finds that the persuasive evidence of record is against the grant of service connection for a psychiatric disorder, however classified. There are several different opinions on the dispositive matter of whether there is a nexus between any currently diagnosed psychiatric disorder and the Veteran's military service. Those opinions are all negative. The February 2009 VA examiner, a psychologist, who conducted an examination on the Veteran at that time, reviewed the claims file in March 2009 following his examination of the Veteran the previous month. The VA health care professional who examined the Veteran in May 2010 also indicated that he reviewed the entire claims file, to include the Veteran's medical records. They arrived at the same conclusion that there did not appear to be any evidence suggesting that the Veteran had a mood disorder while in the military. They believe that the Veteran's mood disorder was more likely than not an illness that developed after his discharge from service and was not related to the military service in any way. Their opinions are entitled to significant probative weight because they each reviewed the claims file and explained the reasons for their conclusions based on their review. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Each examiner made specific reference to the Veteran's service treatment records, and the notes showing his evaluation for polysubstance abuse in December 1976, February 1977, and April 1977. The Board notes that the record also includes the report of a VA psychiatric examination accorded the Veteran in September 2000. At that time the examiner opined there was no evidence to suggest that there was any type of psychiatric disorder during his military service. It is not clear whether they had access to the entire claims folder. Accordingly, the Board does not give as much probative weight to his opinion, but the fact remains that his opinion is also against the Veteran's claim. The only evidence in the Veteran's favor consists of his own assertions as to the etiology of his psychiatric disability. The Board is well aware that lay witnesses are competent to testify as to some matters of diagnosis and etiology, that is, those that are simple enough to be amenable to lay analysis. See Kahana v. Shinseki, No. 09-3525, n.4 (Vet. App. June 15, 2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a Veteran's particular disability is a type of disability for which lay evidence is competent); Davidson v. Shinseki, 581 F. 3d 1313, 1316 (Fed. Cir. 2009) (rejecting Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a lay person was "not competent" to provide testimony as nexus because she was a lay person). As to an opinion about a psychiatric disorder, that is the type of medical matter that the Courts have found to be complex to be proper subject of lay testimony. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007) ("sometimes a lay person will be competent to state whether a condition is simple, for example a broken leg, and sometimes not, for example, if one has cancer"). With regard to a psychiatric disorder, this is the result of the type of internal, nonobservable medical process for which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("it is generally the province of medical professionals to diagnose or label a medical condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition of lay diagnosis). The Board notes that to the extent that the Veteran's general lay assertions are competent as to the etiology of his psychiatric disability, the probative value of his statements are outweighed by the specific, recent opinions of the 2009 and 2008 VA examiners indicating that there is no nexus between any currently diagnosed psychiatric disorder and the Veteran's military service. With regard to the representative's assertion that the May 2000 examination provided no reasoning for why the examiner found the Veteran not credible, and the examination did not contain a well reasoned explanation and was inadequate, the Board disagrees. It notes initially that the determination of credibility is a matter of the trier of fact, not the examiner. The Board, as fact finder, must determine the probative value or weight of the evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). In this case, the Veteran's assertions of events during service are not documented, are inconsistent with the record, and are not credible. Here the examiners considered the Veteran's complaints and the entire evidence of record. They specifically referred to various items of evidence from the Veteran's military records. The Board finds that the Veteran's assertions made in the recent past are not credible and that they are inconsistent with the more contemporaneous evidence of record. Accordingly, the Board finds the 2009 and 2007 examination reports are adequate. There is no duty to explain a relationship to events that did not happen. In this case, the inservice records reflect abuse of alcohol and actions described only as passive and aggressive in nature and no more. The Veteran was described at the time as exhibiting no indication of a psychiatric illness and depression is not documented for years following service. In view of the foregoing, the preponderance of the evidence is against the claim for entitlement to service connection for a chronic acquired psychiatric disorder, and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F. 3d 1282, 1287 (Fed. Cir. 2009). The claim must therefore be denied. ORDER Entitlement to service connection for a chronic acquired psychiatric disability, to include major depression, is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs