Citation Nr: 1304259 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 03-03 100A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a bipolar disorder and post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from September 1980 to August 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and the RO in Montgomery, Alabama. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal except as noted herein. In a June 1999 rating decision, the St. Petersburg, Florida RO in pertinent part, declined to reopen a claim for service connection for a psychiatric disorder; denied service connection for (1) a condition of the left calf, blood clots, and (2) umbilical hernia, claimed as stomach hernia; denied claims for compensable disability ratings for left knee chondromalacia and for right knee chondromalacia; and denied entitlement to a 10 percent rating based on multiple, noncompensable, service-connected disabilities. The Veteran perfected appeals as to these denials. The case was later transferred to the Montgomery, Alabama RO, which in a September 2003 rating decision denied service connection for chronic ear problems, and denied entitlement to TDIU due to service-connected disabilities. The Veteran perfected appeals as to these denials. During the appeal for compensable disability ratings for chondromalacia of each knee, an August 2009 rating decision granted a 10 percent disability rating for each knee, effective from October 2, 2008. However, these two rating matters remained on appeal as the grants were not total. See AB v. Brown, 6 Vet.App. 35, 38 (193); Hart v. Mansfield, 21 Vet.App. 505 (2007). In the September 2010 Board decision, the Board reopened the claim for service connection for an acquired psychiatric disorder. That reopened claim and the claim for a TDIU rating were remanded for further development. The Board granted 10 percent ratings for each knee for the claimed periods prior to October 2, 2008, but denied the other claims. A June 2011 rating decision denied service connection for an eye condition, claimed as blindness; service connection for right shoulder arthritis; and service connection for left shoulder arthritis. Those decisions were not appealed. The case has now been returned to the Board. In the September 2012 Informal Hearing Presentation the Veteran's service representative stated that there was a suggestion in the claims files that the Veteran might now be incarcerated and that this could lead to an unnecessary overpayment of VA disability compensation. It was requested that this matter be drawn to the attention of the RO in order to clarify the length on any current incarceration to avoid any unnecessary overpayment. So, this matter is drawn to the attention of the RO for clarification. Also, it was stated that the Veteran's numerous correspondences since the September 2010 Board decision (which adjudicated the matter of the severity of the service-connected disabilities of the knees) indicated that he believed that his service-connected bilateral knee disabilities had increased in severity. The matter of increased ratings for the service-connected bilateral knee disabilities (since the September 2010 Board decision) had not been adjudicated by the RO and, so, the Board does not have jurisdiction of these matters. These matters are referred to the RO for appropriate action. Lastly, in the September 2012 Informal Hearing Presentation the Veteran's service representative noted that since the most recent Supplemental Statement of the Case (SSOC) of May 2012 correspondence had been received from the Veteran and that Virtual VA indicated that additional medical records had been associated with the claims files. As to this, the service representative waived initial RO consideration of this additional evidence. FINDINGS OF FACT 1. The competent evidence is against a finding that an acquired psychiatric disorder, to include a bipolar disorder or any form of psychosis and PTSD, is related to service, or was caused by or aggravated by service-connected disabilities and against finding that a psychosis, including a bipolar disorder, manifested within one year of service discharge. 2. PTSD was not diagnosed during the Veteran's military service, he did not engage in combat with the enemy, he was not a POW and did not sustain a personal assault during service, and he had no fear of hostile military or terrorist activity. 3. The Veteran has no corroborated inservice stressor and there is no current diagnosis of PTSD. 4. The Veteran's only service-connected disabilities are chrondromalacia of the right knee, rated 10 percent disabling; and chrondromalacia of the left knee, rated 10 percent disabling; for a combined disability rating, including the bilateral factor, of 20 percent. He has a 12th grade education and work experience as a ban saw operator, dishwasher, dump truck driver, and as a general laborer. 5. The Veteran's service connected disabilities, alone, do not preclude him from securing or following substantially gainful occupation. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include a bipolar disorder or any form of psychosis and PTSD, was not incurred in or aggravated during military service; nor may a psychosis, including a bipolar disorder, be presumed to have been so incurred; and an acquired psychiatric disorder is not caused or aggravated by service-connected bilateral chondromalacia patellae. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) and (b) (2012). 2. The criteria for a TDIU rating are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. VA must provide notice of (1) information and evidence, medical or lay, needed for claim substantiation, (2) which portion that VA will seek to provide; and (3) that which the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). This duty to notify was intended to be provided prior to an initial adjudication of a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). For a claim, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that the submission of evidence in the claimant's possession that might help in claim substantiation. See 73 Fed.Reg. 23353 (Apr. 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim which are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice was intended to be provided prior to the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the Veteran was not provided pre-adjudication VCAA notice as to the claim for service connection for psychiatric disability because the rating decision which is appealed, in 1999, pre-dated the enactment of the VCAA in 2000. The claimant was provided with post-adjudication VCAA notice by letter, dated in May 2003. He was notified of the evidence needed to substantiate claim for service connection, i.e., evidence of a current disability, disability during or event during service and a relationship between the two. He was notified of the evidence needed to substantiate a service-connection and the types of evidence the Veteran was expected to provide and that which VA would obtain on his behalf, e.g., private, VA or other Federal records. As the claim for service connection is denied, no disability rating and effective date will be assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the Veteran with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The May 2003 RO letter also informed the Veteran of what was needed to substantiate his claim for a TDIU rating, i.e., evidence that he was unable to secure and retain substantially gainful employment due to service-connected disabilities. As required by 38 U.S.C.A. § 5103A, VA has made reasonable efforts to identify and obtain relevant records for claim substantiation. The Veteran's service treatment records (STRs) have been obtained. His VA treatment records are on file and his private treatment records have been obtained. Also, he declined to testify in support of his claims. Records from the Social Security Administration (SSA), contained on a disc, are on file and have been reviewed. In October 2010, pursuant to the Board remand, the Veteran was requested to provide any treatment records as to his claimed psychiatric disability. He was again informed that VA would assist in obtaining any relevant records which he adequately identified. However, he did not provide any such records or information. In January 2013 he was provided a copy of his claim files. In the September 2012 Informal Hearing Presentation the Veteran's service representative questioned the adequacy of the November 2010 VA nexus opinion which was obtained pursuant to the September 2010 Board remand. This matter will be discussed below. And all this was in substantial compliance with the September 2010 Board remand. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). As there is neither an indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board concludes that there has been full VCAA compliance. Background STRs records show the June 1980 examination for service entrance noted, as to the Veteran's psychiatric status, that prior to service he had regularly used marijuana since elementary school, but this was not considered to be disqualifying for service. In an adjunct medical history questionnaire the boxes for having or having had symptoms of frequent trouble sleeping, depression or excessive worrying, loss of memory or amnesia, and nervous trouble of any sort were originally checked yes, but crossed out and checked "no." It was noted that he had last used marijuana one week prior. A screening physical examination for Army recruitment (SPEAR) worksheet, dated one day prior to the entrance examination, reflects that the Veteran reported not having or having had a nervous condition or having any addiction to alcohol or drugs. Another SPEAR worksheet in September 1980 again reflects that he reported not having or having had a nervous condition or having any addiction to alcohol or drugs. During the Veteran's second week of basic training, he was evaluated on a psychiatric basis in October 1980 for a command referral for evaluation for retention. He reported that he had not had any serious difficulties with basic training and desired to stay in the military. On mental status examination he was fully oriented but his mood was worried. His affect was appropriate and his thought processes were within normal limits. There was no evidence of suicidal or homicidal ideations. The impression was an occupational problem with inadequate traits. He was psychiatrically cleared and was to return to duty. In June 1981 it was noted that the Veteran had a current problem with using marijuana and drinking alcohol, both of which he had used prior to service. There was no mental status examination but the diagnoses were episodic alcoholism and improper use of marijuana. In December 1981 it was noted that the rehabilitations methods used since the last report were scheduled non-resident counseling, command consultation, group counseling/therapy, Antabuse, and alcoholics anonymous. Reports in March and June 1982 from a counselor reflect assessments that the Veteran had made progress during his rehabilitation. A mental status evaluation report dated in August 1982 included a finding of the Veteran's being anxious but he was fully alert and his behavior and thought content were normal. On examination for airborne duty in September 1982 the Veteran's psychiatric status was normal. A report of mental status evaluation dated in July 1983 shows that the Veteran was referred by the unit commander for mental status evaluation pursuant to "IAW" Chapter 14, for administrative separation for misconduct. The report contains a conclusion that his mental status was clear; with no evidence of psychiatric disorder or organicity; and a personality disorder not indicated. He was cleared for administrative/legal action deemed appropriate by command. The report of an August 1983 examination for the purpose of Chapter 14 shows no relevant complaints or findings, except that on examination, there is a notation that the certificate of psychiatric report of mental status evaluation must be attached to the report prior to separation under Chapter 14. In an adjunct medical history questionnaire the Veteran reported not having or having had frequent trouble sleeping, depression or excessive worrying, loss of memory or amnesia, or nervous trouble of any sort. In February 1986 the Veteran was admitted to a secure private medical facility to determine his competency to stand trial for the unlawful breaking and entering of a vehicle. He was afforded a psychiatric evaluation, and subsequently treated for psychiatric disability, having been given Haldol Concentrate. At admission he had both auditory and visual hallucinations. He had other symptoms of a psychotic nature. His complaints included that he was depressed due to the loss of a two year old child in 1984. He also talked about his military service (however, the report does not indicate what he said about his military service). After examination the report contains the following diagnoses: (1) provisional diagnoses of rule out atypical affective disorder (bipolar disorder), rule out schizoaffective and paranoid disorder, and mixed character disorder; and (2) final diagnoses of schizoaffective schizophrenia in remission; and mixed character disorder. Following the Veteran's original claim in September 1983 for disability of his knees and feet, he failed to attend VA examination scheduled in November 1983. In a November 1984 letter the Veteran stated that he had not provided VA with a forwarding address because of the "confusion" following his son's death. He then underwent a VA physical examination in February 1985. On VA physical examination in February 1985 it was noted that the Veteran appeared to be rather nervous and was extremely talkative, with an unusual affect. He "frequently laughs out about statements." VA outpatient treatment (VAOPT) records in November 1986 show that the Veteran was treated for complaints of being nervous and unable to sleep. In part he referred to his divorce in 1982 during service. Other subsequent medical records show treatment including for alcohol abuse. An August 1988 VAOPT record reflects that the Veteran had undergone VA hospitalization in Birmingham in 1986 for his nerves. A September 1988 VA mental health clinic consultation report shows that he was to be evaluated for alcohol abuse during a current period of incarceration. When in high school he had frequently use alcohol and marijuana. He reported that during service he had received an Article 15 punishment for having missed formation because of being too drunk. Drug paraphernalia had been found in his room and he had been busted to an E-1. After examination, the consultation report contains an Axis I impression of alcohol abuse currently in remission; and on Axis II, anti-social personality disorder (provisional) (primary diagnosis). In June 1990 it was noted that he had somatic complaints and a history of paranoid schizophrenia. The assessment was a possible psychotic disorder. When appealing an RO denial as to the evaluation of his service-connected disabilities of the knees, in VA Form 1-9, Appeal to the Board, in April 1991 the Veteran claimed service connection for a psychiatric disorder (which was denied by an unappealed May 1991 rating decision). In a September 1992 letter the Veteran stated that he was incarcerated and was having trouble getting the right medication for his nerves. In a July 1999 letter the Veteran reported that he had started using alcohol during his active duty, during which he was exposed to radiation during jungle training in the Panama Canal in 1983 and had also had "hypethemia" during amphibious training in San Diego, California. In a letter received in August 1999 the Veteran reported having had an "injury of nervous system" while on active duty. However, he did not specify the nature of the reported "injury" but also stated that his nervous condition was aggravated by active service. In correspondence in September 1999 he reported that his nervous condition had been aggravated during service being exposed to live fire during combat training in 1983, activities during jungle training in the Panama Canal Zone in 1981, and cold weather training in Alaska in 1983. In correspondence in May 2000 the Veteran reported that he had a psychological condition due to varicose veins. In a May 2000 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran reported that he had become too disabled to work in June 1996 and had last worked full time in January 2000. He had work experience as a dish washer, for 3 months, and doing yard work for about 1 1/2 years. He had two years of high school education. He reported that he was unable to work due to psychiatric disability. In another VA Form 21-8940 dated that same month he reported that he was currently incarcerated. On file is a VA Form 10-10M, Medical Certificate, dated in July 2000 which is signed by the Veteran [how the Veteran obtained this official VA record is not clear]. It states "psychological condition vericose [sic] condition right knee left knee which has caused me a serious vericose condition. Umbical hernia, bipolar disorder." CAPRI records contained in the Virtual VA system include VAOPT records which show that in February 2003 the Veteran reported having had mental illness since 1986. In that same month it was noted that his medical problems were neck pain, bilateral knee pain, umbilical hernia, varicose veins, and bilateral shoulder pain. Also in that same month he reported having started drinking alcohol at age 15. In May 2004 PTSD screening was negative. In July 2004 the diagnoses included brachial plexopathy and a history of a right shoulder dislocation (one month earlier). VA treatment records in 2009 show a current diagnosis of schizoaffective disorder. In January 2005 he had used $300.00 worth of cocaine over the weekend and drank alcohol the night before the VAOPT appointment. On psychiatric evaluation, on a VAOPT basis, an April 2009 PTSD screening was negative. The Veteran reported that in the past month he had not had any symptoms of PTSD. On VA examination of the Veteran's knees in March 2009 the Veteran complained of pain under the knee caps precipitated by sitting without moving for an hour or with squatting. He had no more significant flare-ups. He had not had any physical therapy, injections, or medications specifically for the knees. The examiner reviewed the Veteran's military and civilian occupations, noting he was an infantryman in service; and a laborer in civilian life, but was in prison since May 2005. The examiner indicated that the service-connected bilateral knee disabilities had not resulted in any impediment to the Veteran's activities of daily living or usual occupation. On examination, the Veteran had normal posture and gait, and used no assistive device. Strength testing to gravity and resistance were within normal limits for the Veteran's age, and was equal bilaterally. There was no atrophy or hypertrophy. Active range of motion of each knee was from zero to 120 degrees, limited by difficulty and discomfort. Extension was to zero degrees. On testing, Lachman's, McMurray, anterior draw, and posterior draw, were all negative. Grind test was positive, bilaterally, greater on the left than right; and there was no instability. The examiner found there to be no painful motion, tenderness, spasms, edema, fatigability, lack of endurance, weakness or instability; except as noted above. The examiner found there to be no additional limitation of motion after at least three repetitions, except as noted above. The examiner opined that she could not determine the extent of additional limitation due to flare-ups without resorting to mere speculation. The report of the diagnostic tests showed bilateral knee findings of mild left degenerative joint disease, minimal right degenerative joint disease. The diagnoses were bilateral chondromalacia patellae, with no instability; and nonservice-connected bilateral degenerative joint disease, consistent with natural aging, not caused by or related to bilateral chondromalacia patellae. A July 2010 SSA award letter reflects that the Veteran was denied disability compensation and that his primary diagnosis was bilateral chondromalacia of the knees, and his secondary diagnosis was a schizoaffective disorder. The SSA records show that he had a 12th grade education and work experience as a ban saw operator, dishwasher, dump truck driver, and as a general laborer. On VA psychiatric examination in November 2010 the Veteran's claim files, including STRS, were reviewed by a clinical psychologist. It was observed that a 1996 clinical note indicated that he had a long history of alcohol and cocaine abuse. He reported not having had any behavioral problems prior to his military service. He denied having any problematic effects from drinking alcohol or substance abuse. During service he had lost rank due to "acting up." He had married during service and had had a child but the child died at age two from "crib death." In 1987 he had served one year in prison for burglary. Thereafter, in 2005 he had served three years in jail for violating probation. He was still on probation. He had received treatment while in jail in 1987 after he had thrown his food against a wall, following which a physician had put him on medication. On mental status examination it was noted that the Veteran lacked insight because did not understand that he had a problem. The Veteran had been unemployed for 1 to 2 years. He had stopped working due to filing for disability. His psychiatric disorder would likely cause problems with concentration, irritability, social interaction, and complex problems solving. The diagnosis was a mood disorder, not otherwise specified. The examiner stated that the Veteran's first mental health treatment had been in 1986, when there was a diagnosis of "schizoaffective schizophrenia in remission and mixed character disorder." In 1986, when attending school, he had seen a physician for knee pain and there was no indication at that time of any psychiatric symptoms. In 1986 he was noted to be abusing alcohol, cannabis, and cocaine. The psychiatric symptoms he reported, in 1987, may have been related to his substance abuse. He had attended at least two programs for substance abuse. In was noted that a mental status evaluation during service had been negative. It was opined that there was no evidence that his mood disorder with a history of psychotic symptoms manifested within one year after service discharge or that it was etiologically related to his military service. Law and Regulations Governing Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as a psychosis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection requires that there be (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet.App. 23, 36 (2007). If some of these elements cannot be established, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). To establish continuity of symptomatology requires a show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet.App. at 307. Service connection will be granted on a secondary basis for disability that is caused or permanently aggravated service-connected disability or disabilities. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. PTSD Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). Lay testimony alone may establish the occurrence of the claimed inservice stressor if (a) PTSD is diagnosed during service; or (b) the stressor is related to the Veteran's having engaged in combat with the enemy; or (c) the stressor relates to his fear of hostile military or terrorist activity and appropriate medical personnel confirms that the stressor is adequate to support a PTSD diagnosis; or (d) the stressor relates to being a prisoner-of-war (POW). 38 C.F.R. § 3.304(f)(1), (2), (3), and (4). However, in claims for PTSD based on an inservice personal assault, evidence from sources other than service records may corroborate the account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Here is it undisputed that PTSD was not diagnosed during the Veteran's military service, he served in peace-time and did not engage in combat with the enemy. Also, he has no stressor related to a fear of hostile military or terrorist activity, he was not a POW, and he has no stressor related to having been personally assaulted during service. 38 C.F.R. § 3.304(f)(5) provides that VA will not deny PTSD based on in-service personal assault without first advising the claimant that evidence from sources other than the service records or evidence of behavior changes may constitute credible supporting evidence of the stressor. Here, the Veteran was not provided such notice because he does not allege an inservice personal assault. With respect to possible inservice stressors, the Veteran's allegations have been, at best, of the very vaguest nature. He referred to live fire practice in combat training, exposure to cold weather; and unspecified activities during jungle training in the Panama Canal Zone which is apparently a reference to putative radiation exposure of some unspecified type that the Board finds to be inherently incredible. He provides very little in the way of specifics regarding his alleged stressors. Further, there is nothing in the record which suggests that such circumstances, even if true, could possibly rise to the level of being the type of stressor which would cause or induce a chronic psychiatric disorder, including PTSD. In fact, there is no diagnosis of PTSD of record and repeated screenings for PTSD were negative. Thus, there is simply no corroborating evidence of an inservice stressor which could cause PTSD, nor any diagnosis of PTSD based upon any form of inservice stressor. Psychiatric Disorder Other Than PTSD Post service evidence indicates that the Veteran had a personality disorder. However, even is true and even if a personality disorder was made worse during active service, i.e., aggravated during service connection, a personality disorder is not a disability for the purpose of a grant of service connection. Congenital or developmental defects, personality disorders, as such are not diseases or injuries within the meaning of applicable legislation. Personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior. 38 C.F.R. § 3.303(c). To the extent that the Veteran alleges that he now has an acquired psychiatric disorder due to nonservice-connected disability, such as varicose veins as alleged in May 2000, this is not a basis for a grant of service-connection because it is based on a non-service-connected disability. See 38 C.F.R. § 3.310(a). While the Veteran underwent counseling and rehabilitation for marijuana and alcohol use during service, repeated evaluations did not find the presence of an acquired psychiatric disorder. Even at service separation he denied symptoms of psychiatric disability. Statements made to a medical examiner at separation from service are not necessarily offered for purposes of seeking diagnosis and treatment (although statements made to the examiner may be conveyed for this purpose), nevertheless the Board may placed greater probative value on a veteran's statements at the time of separation examination not because they were offered for purposes of acquiring medical assistance, but because they were contemporaneous to the time when a veteran later claims to have begun experiencing symptoms of psychiatric disability. "[T]he more contemporaneous the evidence, the greater [the] probative value and credibility than can be attached to that evidence, especially when later-dated testimony [] and statements were generated for pecuniary purposes ... 'memory hinges on recency', earlier statements are generally more trustworthy than later ones." Curry v. Brown, 7 Vet. App. 59, 64 (1994). It is also significant to note that while the Veteran first filed a claim in September 1983 for service connection for disability alleged to be related to his military service, he did not file a claim for service connection for psychiatric disability until 1991. In fact, a CAPRI record shows that as recently as 2003 the Veteran reported that he had had a mental illness since 1986, which is when he was first hospitalized for psychiatric disability that was diagnosed, at that time, as a psychosis. The Veteran's service representative has contended, in the September 2012 Informal Hearing Presentation, that the Veteran's decline in his mental health first began during his active service and, thus, represents the earliest manifestation of his current acquired psychiatric disability. However, this was addressed by the recent VA examiner who reviewed the Veteran's STRs and came to a different conclusion. The service representative has quoted from and contends, in the September 2012 Informal Hearing Presentation, that the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders indicates that schizophrenia or schizoaffective disorder most often has its onset in early adulthood and is sometimes associated with alcohol or substance abuse, which fits the circumstances of this case. Here again, the recent VA examiner noted the Veteran's long history of alcohol and marijuana use but nevertheless concluded that the Veteran's mood disorder, with a history of psychotic symptoms did not manifested within one year of service and was not etiologically related to his military service. It is also contended that the VA examiner did not "specifically" cite to all of the STRs during service. However, there is no requirement that an examiner recite all evidence contained in a claim file, including a recitation of all of the STRs. Moreover, the examiner observed that mental status evaluations during service had been negative. As to the service representatives' citations to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV) for the proposition that substance abuse and personality disorders can be associated with schizoaffective disorders, the 2010 psychiatric examination report specifically states that the diagnosis and opinions were based on the DSM IV guidelines, a review of the medical records and claim files, clinical interview, and testing results. It was also contended that the 2010 psychiatric examination results were inadequate because the report does not specifically address the impact of the Veteran's failed marriage and divorce or substance abuse during service nor his post service incarcerations with respect to the early onset of a schizoaffective disorder. As to this, while each of these factors may not have been specifically addressed, each was noted by the 2010 VA examiner and, so, each factor was considered in reaching the professional medical opinion of the clinical psychologist. Consequently, the Board finds that the report of the examination is sufficient to reach a fair and fully informed decision in this case. See generally Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (citing Green v. Derwinski, 1 Vet. App. 122, 124 (1991); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); see also Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 301 (2008). Because lay evidence may be competent to establish medical etiology or nexus the competence, and credibility, of lay statements must be assessed. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Lay evidence is competent as to factual matters of which there is first-hand knowledge and may establish the presence of observable symptoms that are not medical in nature. Jandreau v. Nicholson, 429 F.3d 1372, 1377 (Fed.Cir 2007) and 38 C.F.R. § 3.159(a)(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. As to the first circumstance, if a disease or disorder may be diagnosed by unique and readily identifiable features, then lay evidence and testimony thereof is not a determination which is 'medical in nature' but, rather, it is one capable of lay observation. See generally Jandreau v. Nicholson, 429 F.3d 1372, 1377 (Fed.Cir 2007). In rebuttal, it is not enough to say that the appellant's uncorroborated statements lack credibility merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006). Here, as to the second and third circumstances in Jandreau, Id., the Veteran has not reported that he had an inservice, i.e., contemporaneous, diagnosis of an acquired psychiatric disorder, or of a psychosis within one year of service discharge in 1983, and he has not described inservice symptoms which has supported a later diagnosis by a medical professional that an acquired psychiatric disorder existed during service or of a psychosis within one year of service discharge in 1983. As to the first circumstance in Jandreau, Id., the Veteran is not competent to diagnosis a psychiatric disorder, based on his putative inservice symptoms, because he lacks the education, training, and expertise to properly diagnosis an acquired psychiatric disorder, particularly when, as here, he also had a personality disorder. Moreover, the Board finds that the opinion of the VA examiner outweighs that Veteran's more recent statements which suggest that he continuously had psychiatric symptoms following his military service. Also, there is no competent evidence that any current acquired psychiatric disorder has been caused or aggravated by his service-connected disabilities of the knees. Accordingly, service connection for an acquired psychiatric disorder, to include a bipolar disorder or any form of psychosis and PTSD, is not warranted. TDIU Law and Regulations Governing TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2012). The Veteran's only service-connected disabilities are chrondromalacia of the right knee, rated 10 percent disabling; and chrondromalacia of the left knee, rated 10 percent disabling; for a combined disability rating, including the bilateral factor, of 20 percent. Accordingly, he does not met the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) provides that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Such cases should submit to the VA Director, Compensation and Pension Service, for extra-schedular consideration when a veteran is unemployable by reason of service-connected disabilities, but fails to meet the percentage standards of 38 C.F.R. § 4.16(a). In such a submission there should be a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. While the Board does not have authority to grant an extraschedular TDIU rating in the first instance, the Board does have the authority to decide whether the claim should be referred to the VA Director of the Compensation and Pension Service for consideration of an extraschedular rating. 38 C.F.R. § 4.16(b). Analysis It is clear that the Veteran has significant disability from multiple nonservice-connected physical disabilities. In fact, it was recently opined that his nonservice-connected psychiatric disability would significantly impair his ability to work. Equally significant, the Veteran's periodic incarcerations and extensive and persistent alcohol and substance abuse have impaired his ability to maintain substantially gainful employment despite his limited education and work experience. However, only the Veteran's service-connected disabilities of the knees may be considered in determining entitlement to a TDIU rating. The recent 2009 VA rating examination found only that the Veteran had the minimal compensable degree of functional impairment of the knees due to chondromalacia patellae. This minimum degree impairment if far short of that required for an extraschedular TDIU rating. In fact, the recent VA examiner stated that the service-connected bilateral knee disabilities did not impede the Veteran in performing his activities of daily living or usual occupation. Moreover, here, the Veteran has 12 years of education and is thus capable of more than mere manual labor, in the absence of interference with employment due to his alcohol and substance abuse. For these reasons, the Board concludes the record evidence establishes that the Veteran's service-connected disabilities alone do not prevent him from securing or following a substantially gainful occupation, and as such he does not meet the criteria for a TDIU rating. Thus, there is no basis for referral of this case for extra-schedular consideration. Floyd v. Brown, 9 Vet.App. 88, 95 (1996); Bagwell v. Brown, 9 Vet.App. 337 (1996). This being the case, the claims must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER The claim for service connection for an acquired psychiatric disorder, to include a bipolar disorder and PTSD, is denied. The claim for a TDIU rating is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs Department of Veterans Affairs