Citation Nr: 1304458 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 07-27 780A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disability to include an adjustment disorder not otherwise specified (NOS) and post traumatic stress disorder (PTSD). 2. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The appellant had active service from November 1969 to September 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the RO in St. Paul, Minnesota, which denied both service connection for an adjustment disorder NOS and entitlement to a TDIU. The Board has reviewed both the appellant's physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. A claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The appellant's August 2006 claim was one for a psychological condition to include an adjustment disorder based on personal assault and mental health problems in the military. The allegations of personal assault also raised the reasonable possibility of a claim for service connection for PTSD. See 38 C.F.R. § 3.304(f) (2012). In May 2011, the Board reframed the issue of service connection as entitlement to service connection for an acquired psychiatric disability to include a chronic adjustment disorder and remanded that issue and the issue of the appellant's entitlement to a TDIU to the RO for additional action. The case returns now for appellate consideration. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the appellant has an acquired psychiatric disability to include an adjustment disorder NOS or PTSD at the time of filing of the instant claim or at any time thereafter. 2. The appellant has been diagnosed as having a schizotypal personality disorder. 3. Service connection is not in effect for any disability. CONCLUSIONS OF LAW 1. A chronic acquired psychiatric disorder to include an adjustment disorder NOS and PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2012). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Id. In service connection cases, compliance with the first element requires notice of five elements: (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. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A September 2006 letter fully satisfied the duty to notify provisions, covering all the service connection elements and the requirements for a TDIU and describing the information and evidence VA would seek to provide and what he was expected to provide prior to initial adjudication of his claims in February 2007. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The Board also concludes VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. The only private medical record is an August 2006 psychological evaluation report. The evidence of record does not show any past or present psychiatric treatment, records of which might be relevant to this case. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). If VA provides a claimant with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The appellant was afforded a July 2011 medical examination to obtain an opinion as to whether he has an acquired psychiatric disability as a result of service. Following a thorough examination and review of the claims file, the examiner concluded that the appellant had a personality disorder, but not an acquired psychiatric disability. The examiner obtained an accurate history and listened to the appellant's assertions. The examiner laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examination is adequate. See Nieves-Rodriguez. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). In May 2011, the Board remanded to provide the appellant adequate notice regarding personal assault stressor allegations under Patton v. West, 12 Vet. App. 272, 281 (1999), and to provide a VA evaluation to ascertain the nature and etiology of his claimed chronic acquired psychiatric disorder. The RO attempted to discharge the Board's personal assault stressor notice instruction with a June 2011 letter. The law presumes the regularity of the administrative process "in the absence of clear evidence to the contrary." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Where there is clear evidence to the effect that the "regular" mailing practices are not regular or that they were not followed, VA is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the relevant document was mailed to the appellant as required by law. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). The appellant was sent a June 2011 letter describing the general requirements of service connection and TDIU. This letter indicated that VA Form 21-0781a was attached. This is the form by which VA elicits personal assault stressor information. The notice regarding alternative forms of evidence is contained in the form. The appellant, however, returned a VA Form 21-0781 in July 2011. That form is a general form for the reporting of stressors occurring during service and does not include the information regarding alternative forms of evidence in personal assault claims. The Board considers the appellant's return of the wrong form clear evidence that the regular mailing process was not followed and that the June 2011 did not discharge the remand instruction. The Board is obligated to consider whether the appellant was harmed by the error because, when a procedural defect is found, remand is appropriate only when correction of the defect "is essential for a proper appellate decision." See Shinseki v. Sanders, 129 S.Ct. 1696, 1707 (2009); see also 38 C.F.R. § 19.9 (2012). Thus, the Board should consider the "entire record in the proceeding," including "all evidence and material of record and applicable provisions of law and regulation" to determine whether a claimant was prejudiced by a VA notice error. See Shinseki, at 1708; see also 38 U.S.C. § 7104(a) (2002). Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Mlechick v. Mansfield, 503 F.3d 1340 (2007). The Board finds that the appellant has not been harmed by the error for to two distinct reasons. First, the appellant submitted the form he was given in July 2011 with a full description of his alleged stressors. He also submitted a lengthy handwritten statement which provided the information that the 21-0781a is designed to elicit. In essence, he provided the required information in spite of the notice error. Second, the stressor allegation notice is a part of the development of service connection for PTSD. See 38 C.F.R. § 3.304(f). The Board finds that he does not have PTSD as discussed in more detail below. Thus, the Board finds that the error was rendered harmless by the provision of the actual information needed and because the benefit cannot be awarded as a matter of law. See Mlechick. The Board concludes that the error was harmless. See Shinseki. The appellant was afforded a July 2011 VA examination in satisfaction of the May 2011 remand instructions. The examination report is of record. The July 2011 examination report reflects that all relevant testing was performed. The examiner noted reviewing the record and provided the requested opinion. The Board has found the examination to be adequate for ratings purposes above. See Barr. The May 2011 remand instructions asked questions which the examination report did not answer pertaining to the likely etiology of any present acquired psychiatric disability and the extent of the impact of such disability(ies) on the appellant's ability to work. The examiner declined to answer the additional questions as the only diagnosed disorder was a personality disorder. The examiner concluded, correctly, that the additional answers were moot in light of the personality disorder. This will be discussed in greater detail below. The Board finds that the July 2011 VA examination report complied substantially with the May 2011 Board instruction. In light of the foregoing, the Board finds that the RO complied substantially with the May 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The appellant asserts that service connection for a chronic acquired psychiatric disorder is warranted secondary to an inservice assault at Fort Dix, New Jersey, and/or active service in general. He contends that his period of active service including the inservice assault so significantly impacted him as to result in a chronic adjustment disorder or other chronic acquired psychiatric disability. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Regardless of the theory of service connection, a current disability is necessary for a grant of entitlement. Evidence must show that at some point during the appeal period the appellant has had the disability for which benefits are being claimed. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). Furthermore, personality disorders are not considered diseases or injuries and may not be service-connected. See 38 C.F.R. § 3.303(c). The appellant has made a series of allegations regarding his mental functioning as impaired. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board notes that the appellant is not a medical professional, has not indicated that he has medical training or expertise, and has not made any allegation that he possesses knowledge of medicine beyond the average lay person. He is a lay witness in this case. The lay evidence from the appellant is contained in three statements. In an October 2005 written statement, the appellant conveyed that "I have just survived since 1977 and do not feel this would be my choice of career paths if my mental condition was considered normal by the establishment's standards." He clarified that "I have complications with my mental health continuing from the 1977 incident with the U.S. Postal Service." In a September 2006 written statement, the appellant advanced that he had exhibited "a change in behavior or mental status after discharge from the U.S. Army in the form of anger and inability to adapt." In his September 2007 substantive appeal, he asserted that he had provided "sufficient evidence to show his mental health problems, currently diagnosed as an adjustment disorder, began during active duty and have continued ever since." In a July 2011 Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) (VA Form 21-0781), the appellant reiterated that he had been "assaulted by three (3) individuals who beat me for what I would assume was money" during active service. He clarified that "while the incident did not permanently damage me physically, it did ingrain in my mind the caliber of people I was stationed with at Fort Dix, N.J." In an undated written statement accompanying his July 2011 statement, the appellant conveyed that: I don't know for sure if, as some say that I changed a lot while I was in the Army, but I do know I was deeply affected (not necessarily for the better either) by what happened to me while I was in the military in my youth. I'd always been happy go lucky and enjoyed socializing with people. But after military service, I just needed, it seems, to be left alone to "lick my wounds." Now there are psychological scars. I hope at 65, they'll heal." The appellant is competent to describe his post-service state of mind and the effect which it has had on his life. He has indicated that he has a chronic acquired psychiatric disorder and tacitly conveyed that he has PTSD secondary to a claimed in-service assault at Fort Dix, New Jersey. However, the appellant is not competent either to render a psychiatric diagnosis or to attribute such a diagnosis to active service. The question of the diagnosis and etiology of such an acquired psychiatric disability is not amenable to observation alone and is too complex to be addressed by a layperson. Such a relationship is the subject of extensive research by medical professionals. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His September 2007 substantive appeal repeats the contents of an August 2006 psychological evaluation. In this, at least, his statement is competent in repeating the contents of a favorable medical opinion. The Board finds his statements are, at best, cumulative of the underlying August 2006 report on which his statements are based. The Board affords them little probative weight. There is an additional lay statement of record. A county veterans service officer wrote an April 2006 statement describing the appellant's life and problems. The officer did not offer medical qualifications, report a diagnosis or attempt to offer one himself. The Board finds that this statement is of extremely limited probative value, relevant only to the proposition that the appellant has abnormal mental functioning and cannot validly diagnose the appellant with any current mental disability. The appellant's service treatment records make no reference to a chronic acquired psychiatric disorder. The service documentation does reflect that he was treated for a nasal facture and an eye contusion in June 1970. The appellant's service personnel records note that he received an Article 15 proceeding after being discovered asleep at his post while serving as a guard at the Fort Dix Correctional Facility. At a June 2005 VA psychiatric examination in support of a non-service-connected pension claim, the appellant presented no psychiatric complaints. No chronic acquired psychiatric disorder was diagnosed. The report states that "cluster B traits [were] noted." An August 2006 psychosocial evaluation from G. Komaridis, Ph.D., and J. Zenk, M.S., conveys that the appellant reported that: he had sustained a broken nose playing soccer during active service; he had received an Article 15 punishment for sleeping while on guard duty during active service; he had been beaten once during active service; and he had been "beaten and/or assaulted" four times while incarcerated following service separation. The appellant clarified that he had been "assaulted by 3 African-American men on a parade field at Fort Dix." The Minnesota Multiphasic Personality Inventory 2 (MMPI-II) psychological test was administered. He stated that he supported himself in the summers by collecting cans for recycling and in the winters by shoveling sidewalks. He lived with his mother during the winter and does not wear shoes. He went barefoot in the summer and wore rubber goulashes with several pairs of socks in the winter. The appellant was determined to "meet the criteria for an Adjustment Disorder, NOS, chronic, due to his military experiences, to his anger at authority figures, and to the marginal life he has lived ever since." At a July 2011 VA mental disorders examination for compensation purposes, the appellant reported that he had been "mugged" during active service. His service, education, legal history, and work history were reviewed. He underwent the MMPI-II again. The appellant had very unusual dress, unusual ideas about others and government and was suspicious and occasionally paranoid. He had six or seven dreadlocks in his beard and a few on his head. He wore five flannel shirts unbuttoned to his belly. He continually pulled up his pant legs and took off his shoes. His emotional reaction was somewhat unusual. He lacked close friends outside of his immediate family and persistent and excessive anxiety about social situations. His thought processes were rambling and his affect did not match content. The examiner indicated that the appellant was rather unusual with difficulty conforming to work norms, was easily irritable and took things personally around others. The examiner determined that: The [appellant] has no Axis I diagnosis and Axis II personality disorders are not service connectable. According to records, he has in the past been diagnosed with a chronic adjustment disorder. He did not present mental health symptoms severity or frequency that meets criteria for a mental health diagnosis. The [appellant] has no mental health diagnosis on Axis I which could be service-connected and his personality disorder cannot be service-connected. The Board has reviewed the probative evidence of record including the appellant's written statements on appeal. The examination documentation of record is in apparent conflict as to whether the Veteran has a chronic acquired psychiatric disorder. While both the June 2005 and July 2011 VA examinations expressly determined that the appellant exhibited no acquired psychiatric disorder, the August 2006 private psychological evaluation concluded that he had "an adjustment disorder, NOS due to his military experiences; to his anger at authority figures; and to the marginal life he has lived ever since." The Board finds that the June 2005 and July 2011 VA examination reports are more probative and are of greater weight than the August 2006 private evaluation. Both the June 2005 and July 2011 VA examination reports found evidence of a personality disorder. The June 2005 report indicates the presence of "cluster B' traits on the Axis II, which is evidence of a personality disorder under the DSM-IV. The July 2011 report explicitly stated that he had a schizotypal personality disorder. Moreover, while the examiner at the July 2011 VA evaluation expressly noted the August 2006 diagnosis of an adjustment disorder in reaching his determination that the appellant had no current acquired psychiatric disorder. The August 2006 private evaluation fails to discuss or to otherwise note the June 2005 VA examination which identified no chronic acquired psychiatric disorder and appears to have been rendered without the benefit of the claims file. The mere failure to review a claims file is not an error which intrinsically renders a medical opinion invalid or without probative value. The appellant provided a different post-service history to the private psychologist than he provided during the July 2011 VA examination. Both reports show that the appellant began but did not finish college prior to entering service. The appellant reported to the private psychologist that after service, he returned to the University of Minnesota but found that he could not focus mentally so he took four incompletes and began to travel around the U.S. in 1972. The private report indicates that the appellant had been unemployed since 1977, recounting his termination from the U.S. Postal Service when a confrontation with a customer cost him his job. The report also describes occasional bids for public office and the appellant's incarceration history for writing threatening letters to public officials. The August 2006 report relies heavily on the appellant's account of his "marginal life" ever since separation from service. Here, the claims file contains records regarding the appellant's use of his VA educational benefits. The appellant did obtain a bachelor's degree. The appellant applied for educational benefits to pursue a teaching certificate, then a master's degree in English in July 1977 at Winona State University. His course of study was approved. During the winter quarter of 1977-78, the appellant dropped several credits, reducing him below full time student status. In response to a proposed reduction in his payments, the appellant filed a January 1978 statement describing his activities at that time. He stated that he had dropped one course after finding it was irrelevant to his course of study and that it had been too late to add a replacement class. He also stated that he had been running "a very, very time consuming campaign for city council representative..." for which he had hoped to receive political science credit. The university declined to give him credit for the campaign. He insisted that he would not make the same mistake again and that he was presently enrolled in 20 credits in the present quarter and that he would end with more than full time credits for the two quarters combined. He described himself as "flourishing" under the 20 credit course load. In August 1978, the appellant filed for a change of program. His last submission in connection with the educational program was in August 1979, when he listed his mailing address as being in care of Famine Foods, in Winona, Minnesota. The appellant's portrayal of his life at the 2006 evaluation is different from that shown in the claims file. The 2006 description of his life shows a brief enrollment at the University of Minnesota with drifting beginning shortly thereafter. There is one entry of post-service employment with the Post Office in 1977. The claims file shows extensive use of educational benefits, with the intent of obtaining a graduate degree. He had involvement in his community running his campaign. There is also evidence of some sort of relationship with a business. The Board finds that the evidence in the file is more like the portrayal of the appellant's life as contained in the June 2005 and July 2011 VA examination reports. In June 2005 the appellant provided similar histories of unemployment, education, unsuccessful political campaigns and legal trouble, but he was found "to be living pretty much as he desires...." In July 2011, MMPI-II psychological testing was administered. His scores indicated that he may have problems with authority figures or experience a negative attitude toward authority. The examiner elicited vague symptoms of anxiety. The examiner read the appellant the criteria for schizotypal personality disorder and the appellant stated, "That sounds like me." The Board may rely only on independent medical evidence to make its determinations, not its own. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The 2005 and 2011 VA examination reports are in direct conflict with the August 2006 report regarding whether he has an adjustment disorder. The August 2006 and July 2011 reports are based on MMPI-II psychological testing. The Board also finds that the appellant's response, "That sounds like me," to the criteria for a schizotypal personality disorder to indicate strongly that this diagnosis is the correct one. The Board finds that the August 2006 report is outweighed by the June 2005 and July 2011 VA examination reports because of the inaccuracies of the appellant's history contained in the August 2006 report and the 2005 and 2011 opinions finding a personality disorder that even the appellant recognized. The appellant's own statements are cumulative of the August 2006 private evaluation report; they provide no additional weight to bring the record to equipoise. In sum, the preponderance of the evidence is against a finding that the appellant has an adjustment disorder. Furthermore, the evidence that the appellant instead suffers from a personality disorder and not an adjustment disorder is from both prior to and after the filing of the instant claim. As the Board has already found that the 2006 report and the appellant's endorsing statement are outweighed by the 2005 and 2011 VA examination reports, the Board finds that the appellant did not have a mental disability subject to service connection at the time of filing of the instant claim or at any time since then. See McClain. The appellant has not alleged specifically that he has PTSD although he contends that his psychiatric problems are related to an in-service assault. PTSD has not been diagnosed at any time. He does not contend that PTSD has been diagnosed. As noted, the appellant has undergone three psychological evaluations. PTSD was specifically excluded as a diagnosis in August 2006. The Board finds that the preponderance of the evidence is against a current diagnosis of PTSD. The schizotypal personality disorder has been identified by the preponderance of the evidence as the cause of the appellant's abnormal mental functioning. As discussed above, personality disorders are not diseases or injuries within the meaning of relevant law. See 38 C.F.R. § 3.303(c). The Board finds that there is no mental disability subject to service connection present. Service connection must be denied. The Board has addressed all diagnoses of mental disabilities of record. See Clemons. The Board has found that the appellant does not have and has not had a mental disability subject to service connection since the filing of this claim. As such, the Board finds that the preponderance of the evidence is against the appellant's acquired psychiatric disability claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. TDIU A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16(a) (2012). The appellant currently has no service-connected disabilities. The Court has held that in cases where the law is dispositive of the claim, the claim should be denied because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In the absence of any service-connected disability, the Board finds that the appellant's claim of entitlement to a TDIU is without legal merit and must be denied. ORDER Service connection for a chronic acquired psychiatric disorder to include an adjustment disorder, NOS, and PTSD is denied. Entitlement to a TDIU is denied. _________________________________________________ J. B. FREEMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs