Citation Nr: 1301070 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-29 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder and depression. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from April 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In April 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The case was remanded in July 2011 to obtain Social Security Administration (SSA) records and to afford the Veteran VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. A psychiatric disorder, to include bipolar disorder and depression, was not present during service, a psychosis was not manifest within a year of separation from service, and a currently diagnosed psychiatric disorder did not develop as a result of any incident during service. 2. A lumbar spine disorder was not present during service, arthritis was not manifest within a year of separation from service, and a currently diagnosed lumbar spine disorder did not develop as a result of any incident during service. CONCLUSIONS OF LAW 1. A psychiatric disorder, to include bipolar disorder and depression, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). 2. A lumbar spine disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in letters dated in December 2004 and July 2008 of what the evidence must show to establish entitlement to the benefits sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The July 2008 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in August 2011 (both issues). 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issues adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. As noted in the Introduction, these issues were remanded, in part, to obtain SSA records. However, the SSA in July 2011 indicated that the Veteran's records had been destroyed. The Veteran was notified that his SSA records were not available in September 2011. A memorandum dated in September 2011 set forth the Appeals Management Center's (AMC's) efforts to obtain the SSA records. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Certain chronic diseases (e.g., psychoses and arthritis) may be presumptively service connected if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1) . Mere history provided by a veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Court has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, the Federal Circuit explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F.3d 1347, 1351 (Fed. Cir. 2000). A. Psychiatric Disorder The Veteran contends that he has a psychiatric disorder, to include bipolar disorder and depression, that was incurred during his military service. Specifically, he contends that a psychiatric disorder is due to being placed in solitary confinement while sentenced to hard labor as well as experiencing racism in service. See, e.g., September 2008 stressor statement. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current psychiatric disorder became manifest or otherwise originated during his period of service or within one year of service separation or is otherwise related to his military service. There is no finding that a chronic psychiatric disorder was treated or diagnosed during service. The Veteran's entrance examination in April 1965 and discharge examination in March 1968 both revealed a clinically normal psychiatric system. In his March 1968 report of medical examination, he denied symptoms such as frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. There is no indication in any of his STRs that he made complaints of symptoms associated with a currently diagnosed psychiatric disorder. As noted above, the Veteran asserts that his current psychiatric disorders began as a result of being placed in solitary confinement as well as racism. A review of the Veteran's personnel records shows that he received two court martials. In August 1965, while stationed at Fort Bliss in Texas, the Veteran was sentenced to confinement at hard labor for six months due to assaulting an officer. There is no indication that he was placed in solitary confinement during this time as he contends. The evidence also shows that the Veteran was again sentenced to six months confinement at hard labor in December 1966 for fraud while stationed in Alaska. This confinement was suspended. There is no indication in the Veteran's personnel records that he experienced racism from other military members. The Veteran's contemporaneous service records fail to show that the onset of any psychiatric disorder occurred during service. In finding that the onset of any psychiatric disorder did not occur in service, the Board acknowledges opinions from VA examiners in October 1996 and August 2011 indicating that the Veteran had bipolar disorder in service. After an exhaustive examination, a VA examiner in October 1996 opined that the Veteran was experiencing a mixed state bipolar illness, which began during solitary confinement at Fort Bliss and had continued since that time. However, that examiner, in reporting the Veteran's Axis I diagnosis of bipolar illness with paranoid ideation, indicated that it "might have" begun for the first time at the age of 18 while incarcerated at Fort Bliss. The examiner did not explain the difference in certainty of their opinions. To the extent that the examiner provided inconsistent opinions, the Board finds that the opinion that the Veteran's mixed state bipolar disorder began during solitary confinement lacks probative value. Furthermore, the examiner's opinion that it "might have" begun in service is speculative. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (by using the term "could," without supporting clinical data or other rationale, doctor's opinion simply was too speculative to provide the degree of certainty required for medical opinion). Thus, such opinion is speculative and therefore, is not probative. Service connection may not be based on a resort to speculation or possibility, and medical opinions that are speculative, general, or inconclusive in nature cannot support a claim. See 38 C.F.R. § 3.102; Warren v. Brown, 6 Vet. App. 4, 6 (1993); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Bostain v. West, 11 Vet. App. 124, 127 (1998). At a VA examination in August 2011, the Veteran was diagnosed with severe bipolar I disorder with mood-incongruent psychotic features. Following an exhaustive examination, the examiner opined that the Veteran's bipolar symptoms began prior to his military service, but were more likely than not exacerbated by the solitary confinement and racism he experienced while in the military. However, the examiner indicated that the Veteran's court martial report did not indicate that he was sent to underground solitary confinement for one to two weeks as claimed by the Veteran. Initially, although the examiner opined that the Veteran's bipolar symptoms began prior to service, the Board finds that the Veteran was in sound condition at entrance to service. As noted above, his April 1965 entrance examination revealed a clinically normal psychiatric system. Thus, the Board finds that the presumption of soundness has not been rebutted and the evidence does not support a finding that the Veteran had bipolar disorder prior to service as opined by the examiner. However, even when considering the examiner's positive nexus opinion, the Board still finds that service connection is not warranted. In this case, the evidence fails to show that the Veteran was placed in solitary confinement as he claims. Regardless, confinement in service was a result of the Veteran's willful misconduct, specifically, engaging in assault upon an officer. VA does not pay disability benefits for any condition that is the result of the veteran's willful misconduct. 38 C.F.R. § 3.301(a). Thus, to the extent that the opinion indicates that the Veteran's bipolar disorder is the result of his in-service confinement, as his confinement was the result of his willful misconduct, service connection cannot be granted on such basis. Also, to the extent that the examiner indicates that bipolar disorder is the result of racism in service, the evidence fails to show that the Veteran experienced such racism. The totality of the evidence fails to show that the onset of any current psychiatric disorder occurred during the Veteran's service due to any event, injury, or disease other than his confinement. The pertinent medical evidence of record fails to show opinions other than those from the October 1996 and August 2011 examiners relating the onset of any current psychiatric disorder to the Veteran's military service. There is also no medical evidence of the manifestation of a psychosis within a year of separation of service. The earliest medical record demonstrating the presence of a psychiatric disorder is a VA treatment record dated in September 1989, which contains a diagnosis of depressive reaction with a history of alcohol and cocaine/crack abuse. The record notes the Veteran reported heavy alcohol intake since the 1960s as well as numerous periods of depression dating back to the 1960s with episodes of feeling high. However, a record dated in February 1995 indicates that the Veteran only had a history of bipolar disorder dating back to 1987. Also, the Veteran reported in March 1996 that he had a history of mood swings only dating back to 1989 when he was first diagnosed with an affective disorder. Furthermore, a May 1996 treatment record indicates that the Veteran only reported a history of alcohol abuse dating back to 1976. Additionally, a record dated in October 2007 reveals that the Veteran was not diagnosed with bipolar disorder until the 1980s. No medical professional has provided any opinion indicating that a psychosis was manifest to a degree of 10 percent or more within one year from the Veteran's discharge from service. The pertinent medical evidence that has been presented includes numerous records showing current diagnoses of psychiatric disorders such as depression and a bipolar disorder. However, these records do not contain medical opinions relating any currently diagnosed psychiatric disorder to the Veteran's military service. The probative medical evidence simply fails to adequately establish any nexus between a current psychiatric disorder, to include bipolar disorder and depression and the Veteran's period of service. Without evidence of an in-service event, injury, or disease to the Veteran's psychiatric system or competent evidence of an association between a psychiatric disorder and his active duty, service connection for a psychiatric disorder is not warranted. The Veteran has expressed his belief that he has a psychiatric disorder, to include bipolar disorder and depression that is related to his service, but there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a)(1). His own assertions as to etiology have no probative value. Without evidence of the onset of a psychiatric disorder in service or competent evidence of an association between a psychiatric disorder and the Veteran's active duty, service connection for a psychiatric disorder, to include bipolar disorder and depression is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder, to include bipolar disorder and depression. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include bipolar disorder and depression is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). B. Lumbar Spine Disorder The Veteran contends that he has a lumbar spine disorder that was incurred during his military service. Specifically, he contends that he injured his back in a ski accident while stationed in Alaska. See, e.g., T. at 13. The Board has conducted a careful review of the record, and concludes that the record is without sufficient evidence supportive of a finding that the Veteran's current lumbar spine disorder became manifest or otherwise originated during his period of service or within one year of service separation or is otherwise related to his military service. There is no finding that a chronic lumbar spine disorder was treated or diagnosed during service. The Veteran's entrance examination in April 1965 and discharge examination in March 1968 both revealed a clinically normal spine. In his March 1968 report of medical examination, he denied recurrent back pain. A record dated in February 1967 shows that the Veteran believed that he strained his back while lifting boxes; no pathology was found and no back disorder was diagnosed. There is no indication in any of his STRs that he complained of back problems resulting from a ski accident. The Board observes that the Veteran has reported that the ski accident that injured his back also resulted in a fractured leg. The Veteran's March 1968 discharge examination revealed clinically normal lower extremities; no leg fracture or leg complaints were noted. The Veteran's STRs fail to show any lower extremity complaints pertaining to a ski accident. Indeed, there is no indication in the Veteran's STRs that he had a ski accident. The Veteran's contemporaneous service records fail to show that the onset of any lumbar spine disorder occurred during service. In reaching this conclusion, the Board observes that the Veteran was afforded a VA examination in August 2011. The examiner noted that a thorough review of the claims file was undertaken. In reviewing the claims file, the examiner observed that they could not find any service treatment records that had confirmed the Veteran's allegations of his ski accident injuries. However, the examiner did note the February 1967 treatment record showing back complaints. During the examination, the Veteran did not report any other lumbar spine injuries other than the contended ski accident injury. Following an exhaustive examination, the Veteran was diagnosed with degenerative disc disease and degenerative joint disease; limited range of motion; and 10 degree flexion contracture. It was the examiner's opinion that it was at least as less likely than not that the Veteran's back condition was incurred as a result of an alleged injury to his back while on a ski lesson in the winter of 1966. The Veteran also indicated that he hurt his right leg and had a hairline fracture of one of the bones in his leg at the time of the alleged ski injury, which was treated with an Ace wrap. He was not treated with crutches. The examiner observed that they could find no records describing such an injury of his right leg, but the Veteran seemed convinced that he did have an injury both to his back and into his right leg. This opinion is uncontradicted. None of the Veteran's post-service medical records contain any opinion indicating that the onset of any lumbar spine disorder occurred during his military service. Furthermore, as regards the Veteran's contention that he had a ski accident in service, the Board finds him not credible. Credibility is an adjudicative, not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here, the Veteran's inconsistencies in reporting his alleged ski accident greatly decrease his credibility. As discussed above, the Veteran insisted to the August 2011 examiner that he also injured his right leg during the ski accident. However, his post-service treatment records include an April 1996 record wherein he indicated that he sustained a hairline fracture of the right knee in January 1996. Such record is silent for any report of a ski injury incurred during service. Also, at an October 1996 VA examination, the Veteran reported injuring his right knee following a suicide attempt when he jumped off of a building. Throughout the Veteran's numerous treatment records beginning in 1986, there is no indication that he reported having a ski accident in service. His medical records reflect several complaints pertaining to his right leg, none of which include mention of an in-service ski accident as the Veteran reported to the August 2011 examiner. As such, the Board concludes that the evidence weighs against a finding that the Veteran had a ski accident in service. The totality of the evidence fails to show that the onset of any lumbar spine disorder occurred during the Veteran's service. There is also no medical evidence of the manifestation of arthritis within a year of separation of service. The earliest medical record demonstrating the presence of lumbar spine complaints is a VA examination dated in October 1996. At that time, the Veteran reported having low back pain for many years; he did not report that that it resulted from a ski injury incurred during service. No diagnosis of a lumbar spine disorder was made; however, a notation indicated that orthopedic complaints would be further evaluated. An orthopedic examination also in October 1996 focused on the right knee and no lumbar spine disorder was diagnosed. X-rays in August 2006 show the first confirmation of lumbar degenerative disc disease in addition to lower lumbar facet arthropathy. The pertinent back treatment records do not contain medical opinions indicating that arthritis was manifested within one year from the Veteran's discharge from service. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of lumbar spine back complaints, symptoms, or findings for over two decades between the period of active service and the first lumbar spine complaint in 1996 is itself evidence which tends to show that his current lumbar spine disorder did not have its onset in service or for years thereafter. The probative medical evidence simply fails to adequately establish any nexus between a current lumbar spine disorder and the Veteran's period of service. Without evidence of an in-service event, injury, or disease to the Veteran's lumbar spine or competent evidence of an association between a lumbar spine disorder and his active duty, service connection for a lumbar spine disorder is not warranted. The Veteran has expressed his belief that he has a lumbar spine disorder that is related to his service, but there is no evidence of record showing that he has the specialized medical education, training, and experience necessary to render a competent medical opinion as to etiology of a disability. Espiritu, 2 Vet. App. 492; 38 C.F.R. § 3.159(a)(1). His own assertions as to etiology have no probative value. Without evidence of the onset of a lumbar spine disorder in service or competent evidence of an association between a lumbar spine disorder and the Veteran's active duty, service connection for a lumbar spine disorder is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a lumbar spine disorder is denied. See 38 U.S.C.A §5107. ORDER Entitlement to service connection for a psychiatric disorder, to include bipolar disorder and depression, is denied. Entitlement to service connection for a lumbar spine disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs