Citation Nr: 1306256	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-39 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder.


REPRESENTATION

The Veteran represented by:     Missouri Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Russell P. Veldenz,  Counsel

INTRODUCTION

The Veteran had active duty from January 1974 to July 1974. 

This matter comes before the Board of Veterans' Appeals  Board) on appeal from a November 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 

The Veteran testified at a video hearing before the undersigned Veterans Law Judge (VLJ) in October 2011.  A transcript of that hearing has been included in the claims file.

In January 2012, the Board remanded the case to the RO directing that the RO obtain records from the Social Security Administration.  The records were obtained in February 2012.  The remand also directed that the Veteran be asked to submit or authorize VA to obtain records from a private physician, Dr. Kulacki.  The Veteran advised VA that he saw Dr. Kulacki one time and the records of that visit are no longer available.  As the requested development has been completed, no further action is necessary to comply with the Board's remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The Veteran has filed a claim seeking service connection for depression and bipolar disorder, arguing that his mental health disability had its origin during his period of active military service.  The Veteran has filed for a claim for service connection for his mental illness whatever it is and the Board thus has styled the claim as shown on the title page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (Multiple medical diagnoses that differ from a claimed condition do not necessarily represent a separate claim, and what constitutes a claim should not be limited by a lay Veteran's assertion, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim).




FINDINGS OF FACT

An acquired psychiatric disorder did not have its onset during service; a psychosis was not manifested to a compensable degree within one year from the date of separation from service; and an acquired psychiatric disorder, first diagnosed after service beyond the one-year presumptive period for a psychosis, is unrelated to an injury, disease, or event of service origin.


CONCLUSION OF LAW

An acquired psychiatric disorder is not due to injury or disease that was incurred in or aggravated by service; an acquired psychiatric disorder as a chronic disease may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements 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, 484-86 (2006). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  

The RO provided pre- adjudication VCAA notice by letter, dated in December 2007.  The notice included the type of evidence needed to substantiate the underlying claims of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service.  

The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf.  The notice included the provisions for the effective date of a claim and for the degree of disability assignable.

As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).  Further VCAA notice is not required.


Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  The RO has obtained service treatment records, VA records, Social Security Administration records, and records from private medical caregivers, and provided the Veteran a VA examination in October 2008

The report of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as opinions on the relationship between the diagnoses made and service.  The examiner also explained her reasons behind the conclusion reached.  Therefore, the Board concludes that the VA examination is adequate.  38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 

Service Connection for an Acquired Psychiatric Disorder

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303.

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.
In this case, several legal theories operate in conjunction with 38 U.S.C.A.  §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303.

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain listed disabilities such as psychosis, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association  (DSM-IV-TR): a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder not otherwise specified; schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. 38 C.F.R. § 3.384.

Under VA law and regulations, a personality disorder is not a disability under the law, it is considered a constitutional or developmental abnormality; and as such, it may not be service-connected.  See 38 C.F.R. §§ 3.303(c) (congenital or developmental defects, such as personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation); 4.127.  Evidence of additional disability resulting from a mental disorder that is superimposed upon a congenital or developmental defect such as a personality disorder during service may be service-connected.  38 C.F.R. §§ 3.303(c), 4.9, 4.127.

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."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

Service connection may also 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).

VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  The Veteran did not serve in combat and the provisions of 38 U.S.C.A. § 1154(b) do not apply.

Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997). 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159. 

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion.  38 C.F.R. § 3.159.

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

The Board, as fact finder, must determine the probative value or weight of the admissible evidence.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) 

When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran.  38 U.S.C.A. § 5107(b).

Facts and Analysis

The Veteran seeks service connection for an acquired psychiatric disorder, arguing that it had its origin during his period of active military service.  The Veteran filed his claim as a claim for depression and bipolar disorder.  The Veteran has filed for a claim for service connection for his mental illness whatever it is and the Board has styled the claim as shown on the first page of this decision.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (Multiple medical diagnoses that differ from a claimed condition do not necessarily represent a separate claim, and what constitutes a claim should not be limited by a lay Veteran's assertion, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim).

The service treatment records show that at the time of a physical examination for entry in January 1974, the Veteran was clinically evaluated as normal psychiatrically.  On a report of medical history at that time, the Veteran denied ever having depression, excessive worry, and nervous trouble of any sort.

Starting in May 1974, the Veteran began complaining of chest pain, hyperventilation, and that he was nervous.  Later that month, he was reported as feeling very depressed and he threatened to jump overboard from the ship.  

At the end of May, 1974, the Veteran received a psychiatric evaluation.  It was noted the Veteran had periods of shakiness, difficulty breathing, dizziness, headaches, and hyperventilation.  The Veteran stated he was extremely uptight and nervous and it was increasingly worse.  He also stated that he could no longer perform his duties aboard ship.  The Veteran also reported that he was recently married and that he and his wife needed each other.  She was pregnant and he believed he needed to be with her.  The Veteran was diagnosed with an acute situational reaction with marked dependency needs.  There was no diagnosis of depression.  His response to separation from his wife most probably precluded effective performance of his duties.

By June 1974, it became clear to the service psychiatric providers that although his symptoms had subsided, he remained rather depressed due to the separation from his wife and it was increasingly clear that the Veteran would not be able to function effectively in the Navy.  A physical examination did not reveal any basis for his symptoms.  The diagnosis was passive dependent personality aggravated by separation from his wife and an administrative discharge was recommended.  There was no diagnosis of a psychiatric disorder including depression.

Later that month, it was noted the Veteran was awaiting separation but had a period of amnesia for a period of twelve and a half hours.  The Veteran had not been drinking and there were no other symptoms involved such as hyperventilation.  The Veteran reported that he had average grades in school but always got tense before tests, which resulted in chest pain and headaches.  He was tearful particularly when talking about his wife and was motivated to be with her.

The Veteran was administratively discharged in July 1974 under honorable conditions.  A service treatment note recorded the Veteran's history and concluded that his symptoms continued even with psychiatric treatment.  The Veteran had been given reasonable time to adjust but the severity of his character and behavior disorder rendered the Veteran incapable of serving adequately.  

In his claim for service connection, the Veteran stated he has been treated for bipolar disorder and depression since 1998.  He also submitted a statement from an ex-wife, C. P., who stated that the marriage ended after four years because of the Veteran's symptoms.  He also submitted a statement from T. G., who reported what he has observed about the Veteran's symptoms and that the Veteran lost a job due to anger issues.  

Records from Dr. R. Anderson indicate that the Veteran first sought treatment from him in September 1998, where he was diagnosed with depression/dysthemia and somatizations.  Somatization is the conversion of mental experiences or states into bodily symptoms.  Dorland's Illustrated Medical Dictionary 1759 (31st ed. 2007).  By January 2000, after the Veteran had phoned Dr. Anderson and expressed anger at him because the veteran had ran out of his medication, Dr. Anderson diagnosed bipolar affective disorder.  

Records from Dr. Sheffner, who started treating the Veteran in June 2007, noted the Veteran has been disabled since July 1984 with depression and chronic abdominal pain.  It was noted the Veteran joined the military and his first wife had a child but later cheated on the Veteran.  He currently was married for the fourth time.  The Veteran described himself as having major depression and had been depressed since childhood.  The Veteran received lithium as well as prescription medication for his nightmares.  The Veteran also stated he drank heavily and took uppers and downers when he was in his twenties.  He has various medical problems including chronic abdominal pain, irritable bowel syndrome, gastritis, diabetes mellitus with peripheral neuropathy, arthritis, and carpal tunnel syndrome.  Dr. Sheffner's diagnosis was probable bipolar disorder, personality disorder, generalized anxiety disorder, and a history of alcohol and drug abuse.  

In October 2008, the Veteran was provided a VA mental health examination.  The Veteran reported that he has been diagnosed with bipolar disorder and depression and that he had received frequent adjustments and changes in medications due to the lack of effect upon his mental health symptoms.  The Veteran also reported his mental health problems began during boot camp.  He had enlisted expecting to be trained as a draftsman but was informed he was instead becoming a boatswain's mate and sent to fire fighting training.  He was then ordered to report to a ship.  After it left the states, he received a letter from his wife telling him that she had aborted her pregnancy.  At that point, he passed out and three days later, he woke up in sick bay.  He was told that after he passed out, he tried to jump overboard.  Thereafter, he received treatment in service for instability.  The Veteran asserted his depression started because the military did not give him his desired position.  The Veteran stated he had anger issues as a child but the episodes were not frequent.  He stated that was very angry that the military did not honor its promise to train him as a draftsman although this reason was not noted on his service treatment records at the time, which instead focused on his reaction to his separation from his wife.

The Veteran also stated that after he was separated from service, he learned that his wife did not abort the pregnancy, but told the Veteran she had done so to spite him.  Later, he caught her cheating and they divorced.  He has been married three more times but the marriages ended because he and each spouse drifted apart.  The Veteran stated he held many jobs and mostly quit the jobs although he had been fired from some jobs citing one incident where he broke his employer's rules.  The Veteran believed his depression contributed to his employment history.  He also stated he drank very heavily from 1975 to 1985, smoked, marijuana and also used uppers and downers.  He stated he has been retired for 14 years, receiving benefits from the Social Security Administration due to bipolar disorder.  

The VA examiner noted that the Veteran clearly overendorsed symptoms.  The examiner also noted the Veteran's report of events in service do not match the service treatment records.  For instance, the Veteran reported the amnesia event and the attempt to jump overboard as one event when the service treatment records recorded a different timing and separate events.  The examiner also found it crucial that the Veteran had not reported being depressed because his wife had told him that she had terminated her pregnancy.  

After review of the service treatment records, the examiner also concluded there was no evidence in service that the Veteran exhibited symptoms of mania or indications of a cyclic mood.  If he was prone to rages, the examiner questioned why he did not go into a rage when he was told that his wife had aborted their child.  He exhibited symptoms of anxiety and sadness with psychosomatic symptoms indicating personality disorder.  At worst, the examiner determined the Veteran had an adjustment disorder.  The examiner noted the Veteran lost contact with his daughter from the first marriage and later lost two more to crib deaths and a son to a miscarriage in the later marriages.  The many losses contributed to him developing mood problems and more likely his substance abuse predisposed the Veteran to mood swings, rages, and sleep disturbance.  

The examiner further noted the Veteran's mood instability was primarily marked by anger outbursts, which the evidence indicated he had early in his life and was exacerbated by substance abuse and related damage to his impulse control.  In the VA examiner's opinion, the Veteran did not meet the criteria for bipolar disorder as the Veteran did not report sufficient symptoms for manic episodes, only hypomania.  Instead, the VA examiner diagnosed that the Veteran suffered from a substance induced mood disorder.  In any event, the examiner also concluded that it was less likely than not that a bipolar disorder or substance induced mood disorder was caused by or resulted from his 6 months of service.  The Veteran still has a personality disorder that prevents the Veteran from managing his anger and willingness to deal with others or rules appropriately.  There was no diagnosis of any other Axis I psychiatric disorder other than substance induced mood disorder.  There was no diagnosis of depression.

In June 2010, VA received a one paragraph letter from Dr. Dion Mirando who identified himself as a specialist in internal medicine.  He stated he had reviewed the service treatment records and agreed that the Veteran had an underlying personality disorder in addition to other possible psychiatric disorders.  Dr. Mirando stated he could not exclude a diagnosis of bipolar disorder as that was the diagnosis of various mental health care providers and the Veteran has been on lithium and done well with it.  

In June 2011, the Veteran testified that his depression began when he learned that he would not be trained as a draftsman, nor would the United States Navy honor his second or third choices, and instead, he was ordered to training as a firefighter.  He had no mental problems prior to service.  The claimed that it was while the ship was heading to Hawaii that he learned his first wife supposedly aborted their baby and he flipped out and tried to jump ship.  When he awoke in sick bay, he did not remember trying to jump overboard.  He testified the service physicians diagnosed depression.  Later, after service, he was diagnosed with depression and bipolar disorder.  Medications have helped him more recently to stabilize his symptoms.  He has occasional flares of anger but nothing major.  Presently, he had difficulty concentrating and with his sleep.  At the time of his hearing, it had been over a year since he saw a mental health specialist and had been receiving his medications from his regular physician.  

Records received from the Social Security Administration includes an evaluation by Dr. S. Colbert Threats who noted that the Veteran developed chronic sharp abdominal pain in June 1994 and has been unable to work since that time.  She noted that it was believed the Veteran had irritable bowel syndrome and that condition is a more difficult to treat with patients who have overlying psychiatric symptoms.  Dr. Threats stated the Veteran was disabled due to his medical problems.  

A handwritten note dated September 1995 that appears to be from Dr. K. Piening noted the Veteran was seeing Dr. Anderson, who told the Veteran his abdominal pain was psychosomatic.  

In August 1996, Dr. B. Goldstein noted the Veteran looked depressed and that the Veteran was unable to work because of his physical problems.  Dr. Goldstein, a specialist in endocrinology, included depression in his list of diagnoses.  Dr. Goldstein did not make any reference to the Veteran's military service, including whether the depression he noted had its onset or was related to service.

In a Social Security Administration psychiatric evaluation by Dr. S. Bronson in October 1996, the Veteran's chief complaint was abdominal pain since 1994, but 15 years earlier (approximately 1981), he had seen several counselors for psychiatric troubles, which the Veteran described as his attitude.  He told Dr. Bronson that regarding his service, he could not adjust to military life and was frustrated he could not be with his wife.  Dr. Bronson noted vegetative depression symptoms such as a loss of interest and desire.  The diagnosis was major depression recurrent which was described as profound and that the Veteran's many physical problems exacerbated the depression.  There is nothing in Dr. Bronson's report to indicate that the diagnosis of major depression was related to the Veteran's service. 

In December 1996, the Veteran was evaluated by Dr. R. Clouse who noted the Veteran reported many symptoms of depression and that he had seen mental health providers in the past who did not communicate a diagnosis to the Veteran.  Dr. Clouse also believed the Veteran had a neurotic component as he would complain at times of pain while being directly examined, yet could walk and move about the examination room without much difficulty.  

In June 1997, Dr. V. Stock diagnosed major depressive disorder, recurrent but the Veteran tended exaggerate and distort his own difficulties.  The Veteran also had poor interactive skills and sees himself as disabled.  He did elicit that the Veteran was in the military and was discharged from service early because he passed out, but Dr. Stock did not attribute major depressive disorder to service.  

In June 2000, Dr. D. Knapik noted the Veteran had depression and anxiety which made work difficult in environments with deadlines or intimate social interaction.  He noted the Veteran complained of severe depression has lasted ten years, which dated the onset to 1990.  

The Board also notes that the Veteran's initial claim for disability benefits from the Social Security Administration does not mention bipolar disorder, depression, or any other psychiatric disability as a factor in the Veteran's inability to secure and maintain employment.  The Social Security Administration in July 1997 found the Veteran was disabled for employment purposes.  It noted the Veteran's medical problems of chronic abdominal pain, carpal tunnel syndrome, diabetes and related conditions such as peripheral neuropathy prevented the Veteran from employment.  The decision also concluded that it was not surprising that the Veteran developed psychiatric symptoms, primarily depression, and appears to imply that he became depressed because of his physical disabilities, not because of a depression disability that began in service.  The decision noted the Veteran has a diagnosis of major depressive disorder and that affected the Veteran's employment regarding interaction with others or his ability to retain information or concentrate.

Initially, the Board notes that the post-service records suggest that the Veteran had symptoms such as anger and depression that started in childhood and therefore pre-existed service.  As a psychiatric disorder or symptoms were not noted on entrance examination, the Veteran is presumed to have been in sound condition upon entry to service. 38 U.S.C.A. § 1111. The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that a disorder both pre-existed service and was not aggravated by service. 38 C.F.R. § 3.304(b). 

As evidence of record does not clearly and unmistakably establish that the Veteran had a pre-existing psychiatric disorder, the presumption of soundness is not rebutted and the Veteran is presumed to have been in sound condition as to any psychiatric disorder on entrance.  

The Veteran was diagnosed in service with dependent personality disorder.  As noted above, a personality disorder cannot be service-connected.  38 C.F.R. § 3.303(c).  Accordingly, the Board finds that the Veteran cannot be service connected under § 3.303(a) even though the diagnosis was made in service.  

As to a claim of service connection that can be established by the presumption under §§ 3.307 and 3.309, the evidence does not establish that the Veteran developed a psychosis to a compensable degree with a year of separation.  Therefore, the Board finds the presumption of service connection under §§ 3.307 and 3.309 does not apply.

The Veteran has submitted evidence he began to experience symptoms of depression in service and it progressively worsened after service.  That raises the question whether service connection may be established under either § 3.303(b) or § 3.303(d).  

The Veteran as a lay person is competent to describe symptoms, which are within of personal knowledge and comes through the use of the senses.  Layno v. Brown, Vet. App. 465, 469-71 (1994).  To the extent that he is asserting that he has a current psychiatric disorder related to service, the Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). 

Here the diagnosis of an acquired psychiatric disability cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses.  As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests.  Furthermore, the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV). Therefore the disability is not a simple medical condition that the Veteran is competent to identify.  It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a mental health diagnosis such as bipolar disorder, major depressive disorder, or any other acquired psychiatric disorder.

Where, as here, there is a question of the presence or a diagnosis of the claimed disability, not capable of lay observation by case law, and the claimed disability is not a simple medical condition under Jandreau for the reason expressed, to the extent the Veteran's statements are offered as proof of the presence of a psychiatric disorder in service or since service, the Veteran's statements are not competent evidence, and the statements are excluded, that is, not admissible as evidence, and the statements are not to be considered as competent evidence favorable to the claim.

For the same reasons, to the extent the Veteran has expressed the opinion that he has an acquired psychiatric disorder related to service the Veteran's opinion as a lay person is limited to inferences that are rationally based on the Veteran's perception and does not require specialized education, training, or experience.  It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between any current acquired psychiatric disorder first shown after service and an injury, disease, or event in service.

As for the Veteran describing a contemporaneous medical diagnosis and symptoms described by the Veteran that later support a diagnosis by a medical professional, no health care professional has related any current psychiatric condition to an injury, disease, or event in service.  Stated another way, there is no opinion of in the treatment records that links the Veteran's current psychiatric disorder to his period of service nor has the Veteran testified that any medical professional has told him his current mental health disabilities or symptoms are related to service.  

Based on the foregoing, the only competent medical evidence of record on causation consists of the VA examiner, who concluded the Veteran currently has a psychiatric condition, but it is unrelated to service.  Although several treating mental health providers have diagnosed the Veteran with bipolar disorder, the examiner concluded that the Veteran did not meet the DSM-IV criteria for a bipolar diagnosis.  VA requires a mental health diagnosis conform to DSM- IV criteria.  38 C.F.R. § 4.125.  Even so, the Veteran did not display any symptoms in service indicative of bipolar disorder as there is no evidence of manic episodes or cyclical moods.  The Veteran's incidents in service were the result of a personality disorder.  The examiner concluded the Veteran still has a personality disorder and his current symptoms are also caused by substance induced mood disorder.  Service connection cannot be granted for drug and alcohol-related conditions as a primary disability.  See 38 U.S.C.A. §§ 105, 1110, 38 C.F.R. §§ 3.1(n), 3.301(d); Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (noting that 38 U.S.C.A. § 1110 precludes compensation for primary alcohol abuse disabilities and for secondary disabilities that result from primary alcohol abuse).

Finally, the expert has determined there is no link between the Veteran's current psychiatric conditions and service.  As the VA expert applied medical and psychological analysis to the significant facts of the case to reach the conclusion reached in the report, the Board finds the evidence persuasive and the evidence opposes, rather than supports, the claim.  The Board finds the October 2008 VA examination the most probative evidence and gives it the most weight because it is based on a complete review of the Veteran's symptoms, a rationale was provided, and the examination report specifically addresses the question of a link to service.  By contrast, none of the other medical records indicate an etiology or a link to service.

The Board recognizes that that the Veteran has submitted the June 2010 letter by Dr. Miranda, but Dr. Miranda only refers to the Veteran having bipolar disorder and thus disagrees with the VA examiner.  He does not provide any suggestion that any bipolar disorder in the Veteran, if present, had its onset or is related to service.  

In a similar manner, the physicians who saw the Veteran for Social Security disability benefit purposes noted the Veteran's military history but only diagnosed depression, which by the history provided by the Veteran, had its onset after service, in or around 1981 at the earliest.  That is approximately seven years after separation.  The various physicians, to the extent they commented on the Veteran's service, only note it as part of their history and do not attribute major depressive disorder or any other mental health disorder to service.  Notations in the medical histories do not constitute credible evidence of a diagnosis of an acquired psychiatric disorder.  Evidence which is simply information recorded by a medical examiner, unenhanced by any additional comment by that examiner, does not constitute competent medical history. LeShore v. Brown, 8 Vet. App. 406, 409 (1995).  In this case, the physicians noted military service and even some information as to what occurred, but do not comment further, especially offering an opinion as to whether any current psychiatric disabilities had their onset or related to service.  

Finally, to the extent the Veteran has offered evidence that his depression began in service, while the Veteran is competent to state that is when his symptoms began, the Board finds he is not credible.  At the time of service, his symptoms were attributed to his dependent personality disorder.  Further, there is no evidence of treatment or diagnosis of a mental health disorder until the late 90's after the Veteran developed chronic abdominal pain.  The physicians as noted above also note that the Veteran had no significant problems until he developed chronic abdominal pain starting in June 1994.  While there is some indication by the Veteran's history to them that he may have had depression before this, it goes back no further than 1981 at the earliest.  He has never told his treating physicians and other mental health care providers that he first experienced depression or other mental health symptoms in service.  Although the Veteran testified that he was diagnosed with depression in service, this is not true because the service medical records show a diagnosis of passive-dependent personality disorder.  Lastly, the Veteran is not credible on the issue of continuity of symptomatology because when he filed a claim for social security benefits in the 1990s he did not indicate depression, bi-polar disorder, or any other psychiatric disability, which suggests that  his current problems developed after that date.

The Board notes that, in the absence of demonstration of continuity of symptomatology, or a competent nexus opinion, the initial demonstration of current disability years after service is too remote from service to be reasonably related to service.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (It was proper to consider the Veteran's entire medical history, including a lengthy period of absence of complaints.); See also Shaw v. Principi, 3 Vet. App. 365 (1992) (a Veteran's delay in asserting a claim can constitute negative evidence, which weighs against the claim).  The Board is not stating that the Veteran's testimony must be corroborated by contemporaneous medical records, see Buchanan v. Nicholson, 451 F. 3d 1331, 1335 (Fed. Cir. 2006) (lack of records does not, in and of itself, render lay testimony not credible).  Instead, the evidence of continuity fails not because of the lack of medical documentation; rather the assertions of continuity are not credible and less probative than the negative evidence, which interrupts continuity.  Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes).  

In sum, the evidence does not establish a nexus between the Veteran's current mental health disabilities and service.  As there is no medical evidence favorable to the claim, and the lay evidence is not competent to provide a diagnosis or etiology, the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability there is no doubt to resolve in the Veteran's favor. 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to service connection for an acquired psychiatric disorder is denied.



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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs