Citation Nr: 1307533 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 05-12 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to January 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Jackson, Mississippi, that denied service connection for a psychiatric disorder. This matter was previously before the Board in January 2011 at which time the claim was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, pursuant to a Joint Motion for Remand, the Court vacated and remanded the Board's January 2011 decision. In June 2012 the Board remanded the claim for additional development in compliance with the decision of the Court. The case is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction substantially complied with the June 2012 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that claims for service connection for an acquired psychiatric disorder also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence demonstrates that the Veteran has been diagnosed as having several acquired psychiatric disabilities, to include paranoid schizophrenia, anxiety disorder, mood disorder, depression, psychosis, and dementia. In accordance with Clemons, the Board finds that in any claim for service connection for a mental disorder the Board must consider any mental disorder that is reasonably raised by the record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT The preponderance of the medical evidence shows that an acquired psychiatric disorder is not related to service; or to a traumatic brain injury in service; nor did a psychosis manifest to a compensable degree within one year of service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in December 2003, April 2006, October 2008, and June 2012 the Veteran was notified of the evidence not of record that was necessary to substantiate his claims. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. He was afforded a VA examination in January 2010 which was determined to be inadequate in the December 2011 Joint Motion. The Veteran was afforded a new VA examination in August 2012 which complied with the Court's Remand instructions. To that end, when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the August 2012 examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim for service connection. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to decide the claim. A brief but relevant and important opinion was provided. The Board finds the opinion to be adequate, as it was predicated on a full reading of the claims file and the Veteran's own statements. Therefore, the Board finds that the agency of original jurisdiction has substantially complied with the June 2012 remand directives such that no further action is necessary in this regard. See D'Aries, supra. In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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"). Service connection for certain chronic diseases, such as a psychosis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Veteran contends that he has a psychiatric disorder that is the result of a traumatic head injury that occurred during service in either June 1975 or July 1975. He reports that while working on a tracked vehicle a tank bar came loose and struck him on the forehead. Service treatment records show no complaint, treatment, or diagnosis of a head injury or trauma. The service records also fail to show any evidence of mental health complaints, or treatment and diagnosis of a psychiatric disorder. The April 1972 enlistment and November 1975 separation examination reports are both silent as to any complaints, treatment or diagnosis of an acquired psychiatric disorder. A service treatment record dated in April 1975 indicates that the Veteran had been involved in a fight several weeks earlier. He reported that his jaw began to hurt him after the fight. A clinical impression of mandibular bruise was provided. A May 1975 dental treatment record noted evidence of dental disease with "bad decay" of some teeth. The dental records reveal numerous missed dental appointments. The November 1975 discharge physical examination is negative for any symptoms, diagnosis, or treatment for a head injury or psychiatric disorder. Post-service VA treatment records show the Veteran was seen at a VA clinic in April 1976 with a complaint of left arm pain and pain around his heart. He also reported an injury when a crowbar slipped hitting him on the forehead and knocking him out momentarily; and, an 18 month history of headaches. X-ray evidence revealed a possible mandible trauma and molar displacement. A diagnosis of anxiety reaction was also provided, and the Veteran was given Thorazine and told to return in the morning. A VA examination was scheduled in June 1976; however the Veteran failed to report. Service connection for residuals of a head injury with headaches was denied in July 1976. There is no other record of related treatment or follow-up. After April 1976, there is a substantial gap in the medical evidence regarding any treatment including for symptoms associated with a psychiatric disorder. However, the Veteran asserts that he was continued to receive VA treatment on a monthly basis; specifically, to receive Darvocet for pain. VA records dated from February 2003 to December 2005, show the Veteran received periodic mental health treatment. A record of a mental health clinic visit dated in February 2003 shows that the Veteran relayed a history of having been hit on the head by a "tanker bar" in service. He denied loss of consciousness. The Veteran also reported that he had been taking prescription anti-depressant and anti-psychotic medications for the preceding 20 years. His nurse case manager provided a diagnosis of paranoid schizophrenia by history and depression. There were no clinical comments by a physician or psychologist. At a neuropsychiatric evaluation in January 2004, the Veteran denied having any residual cognitive problems or any difficulty going back to work after the reported "tanker bar" injury in service. In discussion of the Veteran's psychiatric history, the neuropsychiatrist noted that the Veteran had a 20 year history of mental health difficulties including paranoia, excessive jealousy of his wife, and episodes of aggression, per old notes. The neuropsychologist also noted that the results of the neuropsychological evaluation were consistent with dementia. She opined that while the Veteran had reported a history of head injury in 1975, he denied any cognitive difficulties at that time or problems returning to work; thus, it was unlikely that his current cognitive problems were the result of the remote head injury. In March 2004, the Veteran's nurse case manager added a diagnosis of dementia to the list of the Veteran's mental disorders. In July 2004, a physician was consulted, noted a review of the most recent case manager's notes, and stated that the Veteran's dementia was apparently due to head trauma. As there are no clinical comments from this physician, it is not clear if he actually examined the Veteran. The impression was paranoid schizophrenia; dementia, not otherwise specified-due to a head trauma; and depression, not otherwise specified. In a September 2004 statement, the Veteran reported that he had received mental health treatment from a private physician in Jackson, Mississippi, from 1981 to 1990. He noted that the physician was no longer practicing; however, he had obtained additional information and would seek to obtain the records of his treatment. He did not provide further information to the RO and did not submit records from the physician. A December 2004 Central Mississippi Medical Center initial psychiatric evaluation report revealed that the Veteran was voluntarily admitted for increased psychotic symptoms and suicidal ideations after being brought to the emergency room by the police. The Veteran gave a history of paranoid schizophrenia for a long time and treatment through the VA. He also reported taking Trilafon for 20 years. He reported not previously being hospitalized in a psychiatric unit. The impression was paranoid schizophrenia (this was not attributed to military service); and, rule out cognitive disorder secondary to head injuries. Additional VA records dated from January 2006 to December 2009 reflect continued treatment for mental health disorders, including schizophrenia, dementia, and depression. These records contain no evidence of a link between the Veteran's psychiatric disorders and an incidence of active service. In a December 2009 statement, the Veteran indicated that he was treated for paranoid schizophrenia beginning around 1982. The Veteran was afforded a VA examination in January 2010. He reported that during service he was changing a track on a tank and the tank bar popped off and hit him on the forehead knocking him down. He got up and went back to the barracks and has had headaches since then. He denied any loss of consciousness or decreased cognitive functioning following the blow to the head. Regarding his present symptoms, he reported that he was easily angered, had constant neck pain, and could not remember anything. He reported visual hallucinations, depression, and decreased energy and concentration. He also stated that he had thoughts of suicide in the past, but none at present. He had had paranoid ideations involving his wife, but now has some insight and his paranoia was only intermittent. He also noted infrequent panic attacks under stress. He stated that these symptoms had been present since 1975. Following the remainder of the clinical interview and mental status examination, the examiner provided diagnoses of dementia, not otherwise specified; psychosis, not otherwise specified; and depression, not otherwise specified. The examiner indicated that he had conducted a clinical interview of the Veteran, and reviewed the entire claims file including the computerized patient record system (CPRS) and service treatment records. The examiner opined that dementia, not otherwise specified; psychosis, not otherwise specified; and depression, not otherwise specified, were not due to or caused by the Veteran's reported history of head trauma or mandibular bruise while in service. The rationale was that other than headaches, he had reported no mental health sequelae of being hit and knocked down by the tank bar. He had no loss of consciousness or subsequent cognitive changes. The mandibular bruise was documented in the service medical records but no trauma such that the Veteran reported today was documented. No evidence establishes a nexus between the Veteran's diagnosed mental health conditions and his mandibular bruise or the contended head trauma in service. Accordingly, the stated psychiatric disorders were not due to or caused by the Veteran's period of active service. In June 2012, the RO sent a development letter requesting that the Veteran identify both VA and non-VA providers who have treated him for his claimed condition since service. Specifically he was asked to complete and return an attached VA form 21-4142 Authorization and Consent to Release Information form so that the RO could request the Veteran's records from Central Mississippi Medical Center. Additionally the Veteran was informed that he could submit personal statements or lay statements in support of his claim. The RO received the Central Mississippi Medical Center records dated in December 2004 and a September 2012 lay statement from the Veteran's wife. A VA examination report dated in August 2012 shows that Veteran's claims file was reviewed in conjunction with the examination of the Veteran. The Veteran's symptoms were said to include anxiety; suspiciousness; chronic sleep impairment; mild memory loss; impairment of short term/long term memory; flattened effect; impaired abstract thinking; disturbance of motivation and mood; obsessive rituals; and, persistent delusions or hallucinations. The Veteran reported being struck on the forehead while working on a tracked vehicle when a tank bar came loose, and that he had been having headaches since that time. He was not knocked unconscious or had decreased cognitive function following the blow. It was noted that there was no evidence of any traumatic brain injury shown in the records. The diagnosis was psychosis, not otherwise specified; anxiety disorder, not otherwise specified; and, dementia, not otherwise specified. The examiner noted that the symptoms of each disorder could not be differentiated as they overlapped with some interaction. Treatment records received from the Jackson VAMC had shown a diagnosis of an anxiety disorder while in service, and also diagnoses of paranoid schizophrenia; depression; and, dementia. He was currently receiving medication but no psychotherapy. The examiner opined that the Veteran's diagnosed conditions were less likely as not (less than a 50 percent probability) related to any incident of his active duty service or that was occurred within one year of discharge. The examiner noted that the claims file contained records from 1976 with a diagnosis of anxiety reaction; however he noted that he could not speculate if that, "anxiety reaction," was acute or chronic in nature. A psychosis, not otherwise specified, or any related disorder, such as schizophrenia was not noted in the claims file as occurring in the military or within a year thereafter. Anxiety disorder and schizophrenia were said to be two separate categories of mental disorders. It was noted that a 2004 neuro-psychological report had shown that "The patient does have a history of head injury in 1975, but denied any difficulties at that time or problems returning to work. Thus, it is unlikely that current cognitive problems are due to remote head injury." Records from 2003 documented that the Veteran had been using the prescription, Trilafon for 20 years (approximately since 1983) for the treatment of schizophrenia. It was noted that the Veteran displayed abnormal movements which were attributed to the use of the drug Trilafon. As a result the Veteran has a diagnosis of neuroleptic-induced Parkinson's (diagnosed in 2003). It was noted also, in the claims file, that large doses of medications as well as uncontrolled sleep apnea (Veteran had diagnosis of sleep apnea) could lead to memory problems (cognitive problems) in the Veteran. In summation, the examiner stated it did not appear, given the evidence, that current mental health disorders were related to the Veteran's service, to include a blow to the forehead during his military service. In a September 2012 letter, the Veteran's spouse indicated that she met the Veteran in 1980 (four years after discharge from service), and that they had been married for 31 years. At that time she reported he was lonely, anxious, and non-trusting. She recalled being told that the Veteran had been stationed in Germany during the Vietnam War. He told her of being on funeral detail. The Veteran had nightmares that included kicking and screaming in his sleep. He also recalled other incidents such as: being forced to sleep out in the snow and catching pneumonia; having a sergeant that did not like him and who hit him causing a bruise; and an injury while changing a tank track; and deadly snake pit experiences. Watching war story movies observably upset the Veteran. When she met the Veteran he had been on medication prescribed for pain and anxiety from a VA medical clinic in Alabama. Based on the evidentiary record, the Board finds that service connection for a psychiatric disability is not warranted. The Board observes that the service treatment records are entirely silent as to any acquired psychiatric disorder. While the Veteran has consistently reported that he has a psychiatric disorder that is the result of a traumatic brain injury as a result of being struck in the forehead during service; there are no service treatment records which confirm that such an injury occurred. There are no complaints, injuries, or diagnosis during service regarding any head injuries or any acquires psychiatric conditions. The service records also fail to show any evidence of mental health complaints, or treatment and diagnosis of a psychiatric disorder. The November 1975 separation examination is silent as to any complaints, treatment or diagnosis of an acquired psychiatric disorder. While post-service VA clinical treatment records notes the Veteran was seen in April 1976, several months after he was discharged from service and diagnosed with an anxiety reaction; the record did not indicate if this was an acute incident or a chronic condition. Nonetheless, the Board notes that anxiety reaction is not categorized among the psychotic disorders or psychoses in the VA rating schedule for mental disorders. See 38 C.F.R. § 4.130 (2012). There otherwise is no diagnosis or suggestion of a psychosis within a year of discharge. Accordingly, the presumptive provisions are inapplicable for an anxiety reaction. See 38 C.F.R. §§ 3.307, 3.309. After April 1976, there is a substantial gap in the medical evidence regarding treatment for symptoms associated with a psychiatric disorder. It is not until approximately February 2003 that the records show that the Veteran began receiving periodic mental health treatment. He also reported taking prescription anti-depressant and anti-psychotic medications for the preceding 20 years or since 1983 (seven years after service). The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the Veteran currently is being treated for various acquired psychiatric disorders. While the claims file contains impressions of dementia secondary to the Veteran's reported traumatic brain injury; no evidence of any actual traumatic brain injury is contained in the medical records. None of the Veteran's post-service VA and private treating physicians has related any acquired psychiatric disorders to active service or any incident of service, including a confirmed traumatic brain injury. The January 2004 opinion from the VA neuropsychologist- that it is unlikely that the Veteran's current cognitive problems (i.e. dementia) are the result of a remote head injury- is considered probative medical evidence against the claim. The neuropsychologist conducted an in-depth clinical examination of the Veteran, and based her opinion on such review, her medical expertise, and supported her opinion with a clinical rationale. See Black v. Brown, 10 Vet. App. 279, 284 (1997). The opinion proffered by the VA physician in July 2004 - that the Veteran's dementia was apparently due to head trauma - is less probative particularly since it is not clear whether that physician examined the Veteran, performed any diagnostic testing, or reviewed the claims file, and based that opinion on a completely unsubstantiated history of in-service head trauma. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). There otherwise is no medical opinion or other medical evidence relating the Veteran's psychiatric disorders to any incidence of active service. The Board finds probative the August 2012 opinion of the VA examiner that concluded that the Veteran's current psychiatric disorder was less likely as not related to any incident of his active duty service or that had occurred within one year of discharge. This opinions is considered probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). The Board has weighed the Veteran's statements as to continuity of symptoms and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the contemporaneous findings, and the absence of complaints or treatment for many years after service. It is especially probative that none of the Veteran's treating physicians have indicated any nexus opinions relating any diagnosis of an acquired psychiatric disorder to the Veteran's period of service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. The Board has considered the Veteran's own contentions with regard to his belief that his current acquired psychiatric disorder is etiologically related to his active service. The Veteran's spouse's statement describes mental dysfunction symptoms that she has observed and is considered competent. However her assertions that relate symptoms to military service are not considered competent. Some disabilities are capable of lay observation. Jandreau, 492 F.3d at 1377. As laypersons, neither the Veteran nor his spouse are competent to offer an opinion that requires specialized training, such as the clinical etiology of a medical disorder. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Id. The Board finds that the Veteran is competent to present statements regarding the details of his service and he and his spouse are competent to present recollections and observations concerning his symptoms. However, neither the Veteran nor his spouse are competent to establish a specialized medical determination such as the specific etiology of his various acquired psychiatric disorders first diagnosed approximately in February 2003. Additionally, there is no evidence of symptoms of a psychosis within one year of service. While the Veteran was treated and diagnosed with an anxiety reaction in an April 1976 VA clinical record, three months after service, there is no evidence of any treatment of a psychosis during the first post year. As noted above, the August 2012 VA examiner concluded that the current psychiatric disorder less likely occurred within one year of discharge. Therefore, service connection for a psychosis is not warranted on a presumptive basis. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Thus, on the basis of all the evidence of record, the Board finds that the most probative evidence demonstrates that the Veteran's acquired psychiatric disorders are not attributable to his active service or to any incident or injury in service. Even considering the Veteran's and his spouse's lay statements with regard to the matters it is competent to address, the most probative evidence weighs against the claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance of the evidence is against the Veteran's claim of service connection for a psychiatric disorder and it must be denied. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs