Citation Nr: 1306469 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 06-18 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ann L. Kreske, Counsel INTRODUCTION The Veteran served on active duty from June 8, 1965, to August 11, 1965. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2005 by the Department of Veterans Affairs (VA) Muskogee, Oklahoma Regional Office (RO). In June 2008, the Veteran testified at a hearing at his local RO before the undersigned Veterans Law Judge, and a transcript of the proceedings is of record. When this matter was before the Board in November 2010, the Board denied the Veteran's claims. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a November 7, 2011, Order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's November 2010 decision and remanding the case for compliance with the terms of the JMR. In June 2012, the Board remanded the claims on appeal in accordance with the terms of the JMR. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, the Board finds that there is substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). The Board previously noted that the Veteran, through his representative, raised the issue of entitlement to service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD), and referred this issue to the Agency of Original Jurisdiction (AOJ); however, the record does not reflect any action with respect to this issue by the AOJ. As the Board still lacks jurisdiction of the aforementioned issue, it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's service treatment records, and some post-service treatment records, document his diagnosis with a personality disorder, which is not a disease or injury for which VA compensation benefits may be awarded. 2. An acquired psychiatric disorder was not present until many years after service, and there is no competent evidence that any such disorder is related military service or to any incident therein. 3. A low back disorder was not present until many years after service, and there is no probative evidence that any such disorder is related military service or to any incident therein. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by active service, nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 4.9, 4.127 (2012). 2. A low back disorder was not incurred in or aggravated by active service, nor may it be so presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the VCAA duty to notify was addressed by way of a letter sent to the Veteran in June 2005 - prior to the August 2005 RO decision in this matter. This letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Moreover, although the Veteran was not provided a letter to inform him of how VA assigns disability ratings and how an effective date is established, this notice deficiency is not prejudicial to the Veteran as service connection for his claims is denied. For this reason, no further action is required regarding the duty to notify. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and other pertinent medical records and providing an examination when necessary. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, service personnel records, and the VA and private medical records. The Veteran was examined by VA during the pendency of this appeal. Additionally, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 120 S. Ct. 1696 (2009). The Veteran also testified at a hearing before the undersigned in June 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying whether the elements meeting the criteria for service connection were present in this case. He also asked questions directed at identifying outstanding treatment records that would support the Veteran's claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the videoconference hearing. Thus, the Board finds that VA's duties to notify and assist have been met, and therefore there is no prejudice to the Veteran in adjudicating this appeal. Finally, as noted above, the Board remanded the Veteran's claim on appeal in June 2012 in accordance with a November 7, 2011, Court Order granting the parties' JMR. Specifically, the Board remanded the issues on appeal for the RO/AMC to identify and obtain any outstanding private treatment records dated since April 2003; to obtain VA treatment records dated since April 2009; to obtain an addendum from an August 2009 VA examiner with regard to the question of whether the Veteran's claimed low back condition had its onset in service or within one year of separation from service; and to obtain an addendum from an August 2009 VA examiner with regard to the question of whether the Veteran's psychiatric disorders were related to service, had their onset during service or within one year of separation from service, were related to a diagnosed physical condition, or whether the Veteran's in-service psychiatric symptoms during service represented earlier manifestations of a currently diagnosed psychiatric disorder. A review of the Veteran's claims folder reflects that VA treatment records dated from April 2009 have been obtained and associated with the Veteran's electronic file, and that addendum medical opinions were provided in July 2012. Furthermore, the Veteran did not provide authorization to obtain private treatment records, when requested to do so. The July 2012 addendum medical opinions substantially comply with the Board's June 2012 remand directives as they responded to the questions posed by the Board. Since the requested development has been completed, the case may proceed without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Acquired Psychiatric Disorder The Veteran seeks to establish service connection for an acquired psychiatric disorder. Specifically, during his June 2008 hearing, the Veteran maintained that, while in basic training, he was unable to complete the training exercises and was consequently chastised by a Drill Sergeant, causing his current acquired psychiatric disorder. The Veteran's service treatment records show that he reported a history of attempted suicide on his January 1964 enlistment Report of Medical History, but no psychological abnormalities were noted on his June 7, 1965, enlistment examination. Within days of enlistment, the Veteran was given a psychiatric examination and diagnosed with a chronic severe inadequate personality disorder. The military medical professional further cited the Veteran's pre-service educational and occupational difficulties, and his inability to fully comprehend his pre-service legal difficulties, to support the clear opinion that the diagnosed disorder existed prior to service. Ultimately, the Veteran was found to be unsuitable for military service based on this and the personnel related difficulties associated with his training. Personality disorders are considered congenital defects and are not diseases for VA purposes. Therefore, adjudication and consideration of the merits of the Veteran's claim will not address any theory of entitlement based on a personality disorder, as this is precluded by relevant VA regulation. 38 C.F.R. §§ 3.303, 4.9, 4.127. Medical records also show that the Veteran has diagnoses of a mood disorder, depressive disorder not otherwise specified, anxiety, eating disorder not otherwise specified, and alcohol abuse in remission. In this regard, the Veteran's service treatment records are completely silent for any complaints, treatment, abnormalities, or diagnosis referable to these psychiatric problems. Post-service, there is no evidence of complaints of psychiatric problems until November 2003, approximately 38 years after service. Subsequent VA treatment records noted the diagnosis of a mood disorder due to general medical conditions. In July 2006, the Veteran underwent a VA mental health examination. At the time, the Veteran reported being "depressed over his medical conditions for the past 3-4 years." Based on the aforementioned account, medical records review, and current examination findings, the VA physician diagnosed the Veteran with a mood disorder due to chronic pain with depressive features, but did not indicate any connection to military service or any incident therein. In compliance with the Board's remand instructions, the AMC/RO provided the Veteran an appropriate VA examination in August 2009. At this time, the VA examiner interviewed the Veteran to obtain his account of symptomatology, reviewed the Veteran's service personnel, service treatment, and post-service treatment records, and conducted an appropriate examination. Pertinent to the Veteran's present claim, the VA examiner, relying on the aforementioned evidence and results, diagnosed the Veteran to have a depressive disorder not otherwise specified, which was characterized as "longstanding and recurrent"; an eating disorder not otherwise specified; and alcohol dependence, in remission. The examiner stated that, based on the notation of a suicide attempt prior to service, the Veteran showed signs of a longstanding and recurrent depression, as well as a personality disorder. He then opined that the evidence of record failed to indicate that any acquired psychiatric disorder was in any way related to the Veteran's actual military service or any event occurring therein. Subsequently, due to the November 2011 Court Order, the Board again remanded the claim for an addendum nexus opinion. In July 2012, such an opinion was provided. The July 2012 VA examiner concluded that the Veteran's psychiatric diagnoses were unrelated to his military service or any event that occurred therein. Specifically, with regard to the diagnosis of an eating disorder, the examiner indicated that the evidence of record clearly indicates that the Veteran began engaging in such behavior only in the past six to ten years. With regard to the diagnosis of depressive disorder not otherwise specified, the examiner stated that there is no clear evidence of clinical depression prior to service or arising during service. He explained that the Veteran denied having attempted suicide prior to service, even though it was noted in his entrance examination report. However, a suicide attempt made prior to service did not in and of itself indicate that a clinically diagnosable depression was present, and such an attempt could not be used to "prove" the presence of a clinical depression. Furthermore, the Veteran was not diagnosed with depression during service, only a "personality disorder." Moreover, the Veteran had indicated to the previous VA examiner in August 2009 that he began feeling depressed over the past seven to eight years due to declining physical health. Therefore, the examiner concluded that the Veteran's depressive disorder was less likely than not present prior to service or arose during service. The examiner also indicated that none of the above diagnoses represented a continuation of any disorder diagnosed or mentioned during service, i.e. mental condition or personality disorder. With regard to the diagnosis of alcohol abuse, the July 2012 VA examiner indicated that the Veteran admitted to heavy drinking prior to service; therefore, it cannot be service-connected. Moreover, the Board notes that service-connection compensation is precluded for substance abuse that is a result of the Veteran's willful misconduct and unrelated to a service-connected disability. See 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.1(n), 3.301(d). None of the aforementioned records link the Veteran's psychiatric problems to service or any incidents that occurred therein. This record presents strong evidence the Veteran did not develop a psychiatric illness during service, nor, if one existed prior to service, that it underwent an increase in severity during service. Chronologically, many decades then passed before the Veteran presented himself to medical professionals for psychiatric treatment, which itself is some indication that the Veteran's military service is not implicated in this development. With respect to the Veteran's contentions that he has a psychiatric disorder due to his military service, this is unsupported by any competent, credible evidence. The Veteran is competent to report symptoms, but he is not competent to identify the cause of a psychiatric disability. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Also, the Board notes that, throughout many years of treatment, the Veteran made no mention of his military service or of any in-service psychiatric problems to his health care providers at any time. When he finally presented himself for psychiatric treatment in November 2003, he made no mention of his military service, and it was not until the August 2009 VA examination that he mentioned his in-service psychiatric problems. Furthermore, the Veteran's statements as to continuity of symptomatology following service have been inconsistent. While he has alleged that he has experienced psychiatric symptoms since service, he also has reported to his health care providers that he began to feel depressed and anxious within the last decade or so due to his financial and physical health problems. These factors also detract from the evidentiary weight accorded the Veteran's assertions. As such, the Board accords little evidentiary weight to his contentions. Therefore, in the instant case, the Board finds the most probative evidence is against the conclusion the Veteran has a psychiatric disorder that was incurred in or aggravated by service. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for an acquired psychiatric disorder. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Low Back Disorder In this case, the Veteran contends that an in-service back injury caused his current low back disorder and/or aggravated a pre-service back disorder. Service treatment records showed that the Veteran was treated for complaints of low back pain in July 1965. He reported suffering from back pain on and off for two years. He was diagnosed with lumbosacral strain and prescribed ice and flexion and extension exercises for three days. Service treatment records showed no further complaints, treatment, or diagnosis for any back abnormalities or problems in service. At the time of his separation examination in June 1965, the Veteran's spine was found to be normal. Post-service, there is no evidence of complaints of, or treatment for, back problems until November 1998, when the Veteran complained of low back pain and attributed it to kidney problems. The VA treating physician indicated that these symptoms were related to the Veteran's increased weight. However, no formal low back disorder was diagnosed. Thereafter, in connection with an unrelated claim, the Veteran was provided a VA examination in March 1999. During the examination interview, the Veteran relayed experiencing "some chronic back pain at times." At this time, the examiner also conducted an examination of the Veteran's back, to include radiological testing, and diagnosed the Veteran with lumbar-sacral strain and degenerative disc disease, opining that the conditions were related to "morbid obesity." Subsequent VA and private treatment records document diagnoses of disc protrusion/herniation, degenerative changes, and spinal canal stenosis on a congenital basis. A February 2003 examination provided for workers' compensation purposes indicated that the Veteran's low back disorders were aggravated by a work-related injury that occurred on May 11, 2001. In connection with his present service connection claim, the Veteran was provided an August 2009 VA examination. During the examination interview, the Veteran detailed his account of in-service back injury and post-service symptomatology. Based on current examination findings, to include diagnosed myofacial lumbar syndrome, the Veteran's account of his disorder, and in-service and post-service treatment records, the examiner opined that the Veteran's lower back disorder was no likely related to military service, or any incident therein, but was more likely related to "the effects of aging, morbid obesity and musculoskeletal deconditioning." In July 2012, an addendum medical opinion was provided. This opinion indicated that the Veteran's low back multilevel degenerative joint and degenerative disc disease of the lumbar spine with secondary left L4 radiculopathy was less likely as not caused or aggravated by active military service. The examiner explained that there was no evidence of degenerative disease of the lumbar spine in the Veteran's service treatment records. Furthermore, the currently diagnosed degenerative disease was initially noted over 30 years after discharge from service, and it was additionally aggravated by a post-service, work-related injury in 2001. The examiner concluded that the Veteran's currently diagnosed degenerative disease is the result of advanced age and morbid obesity, both of which can cause this chronic disease to progress. This record presents strong evidence the Veteran did not develop a back disorder during service. Chronologically, the Veteran received no treatment for low back problems until November 1998, approximately 33 years after service. Further, as noted by the July 2012 VA examiner, many years passed before the Veteran presented himself to a medical professional for treatment. Thus, there is indication that the Veteran's military service is not implicated in his low back condition. With respect to the Veteran's contentions that he has a low back disorder due to his military service, this is unsupported by any competent, credible evidence. The Veteran is competent to report symptoms, but he is not competent to identify the cause of a low back disability. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Also, the Board notes that, throughout many years of treatment, the Veteran made no mention of his military service or of any in-service low back problems to his health care providers at any time. When he finally presented himself for treatment in November 1998, he made no mention of his military service and in fact attributed his low back pain to kidney problems. He made no mention of his in-service back complaint until the August 2009 VA examination. These factors also detract from the evidentiary weight accorded the Veteran's assertions. As such, the Board accords little evidentiary weight to his contentions. Therefore, in the instant case, the Board finds the most probative evidence is against the conclusion the Veteran has a low back disorder that was incurred in service. In reaching its conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder is denied. Service connection for a low back disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs