Citation Nr: 1302733 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 09-22 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), claimed as schizoaffective disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that held that new and material evidence had not been received to reopen a claim for service connection for schizoaffective disorder, previously claimed as nervous disorder and mood swings (claimed as schizophrenia). When this claim was previously before the Board in April 2011, the Board reopened it and remanded the underlying service connection issue for additional development and adjudication. At that time, the Board also denied service connection for PTSD. The Board again remanded this claim in July 2012 for additional development and adjudication. The case is now before the Board for final appellate consideration. FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that the Veteran has a psychiatric disability other than PTSD, claimed as schizoaffective disorder, that is related to active duty. CONCLUSION OF LAW A psychiatric disability other than PTSD, claimed as schizoaffective disorder, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in February 2009, VA informed the appellant of what evidence was required to substantiate his service connection claim on the merits, of his and VA's respective duties for obtaining evidence, and that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claim, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds that the VCAA notice requirements have been met in this case. Duty to Assist The record contains some service treatment records, some service personnel records, VA medical records, private medical records, the Veteran's statements in support of his claim, and a January 2003 determination from the Social Security Administration (SSA) along with the corresponding medical records. A July 1996 VA Report of Contact relates that the St. Louis VA Medical Center (VAMC) had no records for the Veteran on file. The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. The claims file does not appear to contain all of the Veteran's service treatment records or service personnel records. Prior to the November 1999 Board decision, VA attempted to obtain the Veteran's missing service treatment records but was unsuccessful. An October 2006 VA memorandum in the claims file provides that the RO had determined that the Veteran's personnel records were unavailable. The RO stated that all procedures had been correctly followed, all efforts to obtain them had been exhausted, and further attempts were futile. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). A VA examination was conducted in August 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in this case is more than adequate. It reflects a review of the Veteran's claims file and treatment records from the St. Louis VAMC, considers all of the pertinent evidence of record, and provides a rationale for the opinions offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of 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 this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the current case, the appeal period begins June 26, 2008, the date the Veteran submitted his claim. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). As noted above, the Board's April 2011 decision denied service connection for PTSD. The Veteran claimed that during basic training in 1978, he witnessed an M16 accidentally discharge when it hit the ground, killing a soldier right in front of him. The Board recognized that the Veteran was competent to testify as to events he witnessed while on active duty. However, the Board found that an April 2009 response from the Army Safety Center made the Veteran's account of his stressor appear less than credible. With respect to the current claim, the Veteran contends that he has a psychiatric disability other than PTSD, claimed as schizoaffective disorder, as a result of active duty. He claims that he heard voices while on active duty, and that he received treatment at the St. Louis VAMC within one week of separation. As noted above, in July 1996 the St. Louis VAMC stated that it had no treatment records for the Veteran on file. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disability other than PTSD, claimed as schizoaffective disorder. The Veteran's only available service treatment records are his June 1978 entrance medical examination report and medical history. His available service personnel records primarily address the reason for his February 1979 discharge (Trainee Discharge Program Marginal or non-productive). These records are negative for psychiatric complaints, symptoms, findings or diagnoses. Post-service VA treatment reports dated in 1994 provided diagnoses of rule out dysthymia, depression; rule out major depression; rule out malingering; depression with mild psychosis. Testing found that the Veteran had a very high F scale, which a psychiatrist said indicated malingering. In a January 1995 treatment report, a private mental health examiner specifically ruled out diagnoses of PTSD, psychotic disorder, major depression with psychotic features, and anxiety disorder. After evaluating the Veteran in March 1995, a private neuropsychologist provided an Axis I diagnosis of factitious disorder with combined psychological and physical signs and symptoms. The record includes a May 2006 VA impression of psychotic disorder, NOS. An August 2007 opinion from a private licensed clinical social worker provides that she had counseled the Veteran on three occasions in 2007, and diagnoses included PTSD; paranoid type schizophrenia; and major depressive disorder, recurrent, moderate. She states that she had reviewed the Veteran's VA records and it seemed that his posttraumatic and psychotic symptoms were started in the military. The Veteran had told her that while in the military in 1978 until 1979, a man had shot himself in the head accidentally. The Veteran reported that this was the start of his PTSD symptoms. The record contains an April 2008 VA diagnosis of schizophrenia. In an undated statement received in February 2009, a witness stated that she knew the Veteran before and after his active duty, and that in essence she observed a change in the Veteran's mental state after service. In a September 2011 letter, a private licensed professional counselor stated that he had observed the Veteran's condition in his office, face to face. The Veteran appeared credible, honest and forthcoming. The Veteran reported that he had been in psychotherapy for mental conditions that he stated began while he was in military service. The Axis I diagnosis was bipolar disorder, unspecified; and PTSD. The Board notes that this diagnosis is dated during the appeal period. See McClain, supra. VA conducted an examination of the Veteran in August 2012, pursuant to the Board's July 2012 remand. The corresponding report provides that the examiner reviewed the Veteran's claims file and records from the St. Louis VAMC. It sets forth the relevant history, the Veteran's subjective complaints, and examination results. The examiner stated that the Veteran did not have a mental disorder that conformed with DSM-IV criteria. The current diagnosis was malingering. The examiner also stated that during the interview the Veteran "literally endorsed every mental health symptom assessed" including extremely rare symptoms (olfactory and somatic hallucinations). The examiner noted that a review of the Veteran's claims file showed a wide variety of mental health diagnoses since separation, including PTSD, bipolar disorder, schizoaffective disorder, schizophrenia, major depressive disorder, and personality disorder. The Veteran's descriptions of symptoms varied between providers and between situations. The examiner noted that the only consistent opinion across multiple mental health providers were concerns regarding factitious disorder or malingering. In support, he provided a detailed review of the Veteran's medical history from 1994 to 2001. At several different points in the examination report, the examiner noted that the Veteran's self report during the interview was highly inconsistent and exceptionally inconsistent. The examiner concluded that the Veteran could not be considered a reliable informant. The Veteran was highly inconsistent in his self report during the interview and the material he shared was also highly inconsistent with information in the claims file. The examiner stated that while minor inconsistencies in the medical record were to be expected, the level and frequencies of the inconsistencies combined with the Veteran's wholesale endorsement of every symptom associated with every major mental health disorder led the clinician to conclude that the Veteran's presentation was most consistent with a diagnosis of malingering. The examiner stated that while there may be some underlying mental health disorder (i.e., a personality disorder, an impulse control disorder), the Veteran's tendency to over endorse psychiatric symptoms and his vague and inconsistent response style made it impossible for this provider to reach any further diagnostic conclusions without resorting to mere speculation. The examiner stated that additional assessments that rely on self-report or psychological testing were unlikely to yield useable information. If additional assessment was required, the Veteran should be required to bring third party evidence to support his claims (e.g., records from high school, arrest records, documentation supporting psychiatric hospitalization in the early 1970's, and/or records concerning Article 15s). The Board finds that this medical opinion constitutes probative evidence that the Veteran does not have a current psychiatric disorder which may be service connected. It is based on current examination results and a thorough and comprehensive review of the medical record. The examiner explained his opinions with detailed and complete references to the Veteran's post-service psychiatric history. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). By contrast, none of the VA or private diagnoses in the record (whether dated before or during the current appeal period) contain rationales or explanations based on the detailed facts of the Veteran's case. As a result, the Board finds that the psychiatric diagnoses of record are outweighed by the August 2012 VA examination report and opinion. Even assuming that the Veteran has a psychiatric disability other than PTSD, there is no evidence that such diagnosis began during or as a result of the Veteran's active duty. In this regard, the August 2007 diagnosis and nexus medical opinion are based on a report of stressor that the Board has already determined to be "less than credible." The September 2011 diagnosis (which is dated during the appeal period, see McLain, supra) and implied positive nexus opinion are apparently based on the same non-credible stressor report. Further, as explained below, the Board finds the Veteran to be non-credible. As a result, any diagnosis or nexus opinion (whether explicit or implied) based on his self-reported history (such as those dated in August 2007 and September 2011) are not reliable. In this regard, the Court has held that VA cannot reject a medical opinion simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). In this case, the August 2007 and September 2011 diagnoses and nexus opinions are entitled to very limited probative value as the Board has determined that the Veteran lacks credibility. The February 2009 witness is competent to provide testimony and statements concerning factual matters of which she has firsthand knowledge (i.e., observing the Veteran's behavior before and after service). Barr, supra; Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements 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, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the February 2009 witness is not competent to diagnosis the Veteran with a psychiatric disorder, or state that any current psychiatric disorder is etiologically related to his service. A layperson is generally not deemed competent to express an opinion on a matter that requires medical knowledge, such as a diagnosis, the question of whether a chronic disability is currently present, or a determination of etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board finds that Veteran's own assertions that during or as a result of active duty he incurred a psychiatric disability other than PTSD, claimed as schizoaffective disorder, are less than credible. Again, the Board's April 2011 decision denying service connection for PTSD found that the Veteran's account of his stressor (on which his current claim also relies) appeared less than credible. The August 2012 VA examiner concluded that the Veteran's self report during the interview was highly inconsistent and exceptionally inconsistent, and that the Veteran could not be considered a reliable informant. While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The post-service medical evidence discussed above (which, overall, demonstrates that the Veteran does not have a current psychiatric disability incurred during or as a result of active duty) outweigh his contentions. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for a psychiatric disability other than PTSD, claimed as schizoaffective disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). (CONTINUED ON NEXT PAGE) ORDER Service connection for a psychiatric disability other than PTSD, claimed as schizoaffective disorder, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs