Citation Nr: 1309985 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 96-46 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection on a presumptive basis for a psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1993 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which found that no new and material evidence had been submitted to reopen the Veteran's claim for service connection for a psychiatric disability. In a September 2002 decision, the Board found the Veteran had submitted new and material evidence, and reopened his claim for service connection for a psychiatric disability. The claim was then remanded to the RO for additional development of and consideration on the merits. The claim was again remanded by the Board to the RO in May 2003, December 2004, and December 2008 for additional development. In a September 2009 decision, the Board denied service connection for a psychiatric disorder, to include PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision in February 2012 that: (1) affirmed the Board's denial of service connection for PTSD; (2) affirmed the Board's denial of service connection for a psychiatric disability other than PTSD on a direct basis; and (3) set aside the Board's denial of service connection for a psychiatric disability other than PTSD on a presumptive basis and remanded the issue to the Board for further adjudication. The Board notes that the issue on appeal has been characterized in accordance with the February 2012 Court Memorandum Decision. In October 2012, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion, dated in December 2012, was received the following month. In January 2013, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. In a signed statement, dated in February 2013 and received at the Board that same month, the Veteran stated that he had no further evidence or argument to present, and accordingly, the Board will proceed with the consideration of his case. FINDING OF FACT The Veteran does not have a psychosis that developed in service or within one year of his discharge. CONCLUSION OF LAW The criteria for presumptive service connection for a psychiatric disability other than PTSD have not been met. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.384 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished subsequent to the initial RO decision by way of letters from the RO to the Veteran in January 2002 and August 2003. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. Although the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of supplemental statements of the case issued in April 2002, March 2004, September 2007, and June 2009 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. See Shinseki v. Sanders, 556 U.S. 396 (2009) (discussing the rule of prejudicial error). As to the duty to assist in this case, the Board finds that all necessary development has been accomplished and thus appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and all pertinent VA treatment records. The Veteran submitted private treatment records from various treatment providers. He was afforded VA examinations in August 1972, May 1974, April 1975, November 2002, December 2006, and March 2007, and a medical advisory opinion from a VHA specialist was obtained in December 2012. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis As noted above, the matter on appeal is limited to the matter of service connection on a presumptive basis for a psychiatric disability other than PTSD. 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). Presumptive service connection is granted for psychoses diagnosed within one year of the veteran's separation from service and that are 10 percent disabling. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). VA defines psychoses as any of the following disorders: 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 (2012). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As the matter on appeal is limited to the matter of service connection on a presumptive basis for a psychiatric disability other than PTSD, the scope of the relevant evidence is limited to one year after the Veteran's separation from service. The Veteran's service treatment records reveal that he was treated for an overdose of Robaxin in May 1968. The Veteran was noted to indicate that he is angry, upset, and feels that he cannot take the Army. In June 1968, the Veteran was treated at the MHCD due to an overdose after being transferred from the emergency room. The Veteran indicated that he wanted to get out of the Army. He stated that he did not think he was crazy or show any signs of severe psychological problems. In a private treatment letter from Dr. R.C., dated in September 1971, the Veteran was noted to have been receiving treatment for schizophrenia, chronic undifferentiated type, since April 1971. A May 1972 private treatment report from Rosena Martinez, M.D., listed the Veteran was diagnosed with anxiety neurosis and "Hallucinatory Crisis (Squizoid Reaction)" in March 1970. In light of the above, and on the basis of the December 2012 VHA medical expert opinion, the Board finds that entitlement to service connection on a presumptive basis for a psychois is not warranted. The Board acknowledges that the Veteran was treated for an overdose in 1968. However, the Veteran's service treatment records do not reveal a diagnosis of a chronic psychiatric condition. Significantly, the Veteran continued to complete his entire period of duty and was separated from service in 1970. After service, based on the May 1972 private treatment report from Rosena Martinez, M.D., it appears that the Veteran was first diagnosed with and treated for a psychiatric disorder in March 1970, one month after his separation from service, when he was diagnosed with anxiety neurosis. Notably, in December 2012, the consulted VHA medical expert related that "anxiety neurosis" is a broad term that is used when there is anxiety present, but no more specific condition is diagnosed. The medical expert further indicated that such a diagnosis is similar to a diagnosis of "adjustment disorder with anxiety", a focus of treatment but not a major mental illness. In addition, the medical expert opined that there was insufficient evidence to support a diagnosis of a psychiatric disorder, and that it was not at least as likely as not that the Veteran's currently diagnosed condition had its onset on active duty or within one year of service. Such opinions were based on a review of the claims file, which while not specifically stated was reviewed, was clearly performed based on the thoroughness of the medical expert's findings in the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (the relevant focus is not on whether the clinician had access to the claims file, but instead on whether the clinician was "informed of the relevant facts" in rendering a medical opinion). Thus, to the extent the Veteran was diagnosed with anxiety neurosis within a year of his separation from service, service connection is not warranted for anxiety neurosis on a presumptive basis as the preponderance of the evidence is against a finding that such diagnosis reflects a psychiatric disability. In addition, the Board finds that entitlement to service connection for "Hallucinatory Crisis (Squizoid Reaction)" is also not warranted on a presumptive basis. As noted above, such was diagnosed in March 1970, within one year of separation from active service. The Court in the February 2012 Memorandum Decision indicated that whether squizoid reaction is a manifestation of a psychosis as defined in 38 C.F.R. § 3.384 diagnosed within one year of service was "sufficiently nuanced" to warrant remand. As such, in October 2012, the Board sought an advisory medical opinion. In December 2012, the VHA medical expert opined, "Schizoid (squizoid) refers to personality characteristics of detachment from social relationships, preference for solitary activities, and emotional coldness. This is NOT a mental illness, nor is it the same as schizophrenia or any other psychotic illness." As this opinion was provided by a medical expert with the training and expertise to provide such, and was based on a review of the Veteran's claims file, the Board finds such opinion is both probative and persuasive. As the December 2012 consulted medical expert opined that "squizoid/squizoid reaction" is not a psychiatric disability, service connection for such is not warranted. To the extent the private treatment letter from Dr. R.C. dated in September 1971 indicated that the Veteran was diagnosed and treated for schizophrenia in April 1971, such is more than one year after the Veteran's separation from service, and thus not entitled to presumptive service connection. To the extent the Veteran may argue that the diagnosis of "squizoid" in 1970 is reflective of an earlier manifestation of schizophrenia, the Board finds that such is without merit. Significantly, the December 2012 VHA medical expert specifically opined that "squizoid" is not the same as schizophrenia, and that it is not a mental illness. As the VHA medical expert is competent to provide such an opinion, the Board finds it both probative and persuasive. Hence, the Board finds that presumptive service connection for schizophrenia is also not warranted. The Veteran's own assertions that he has a psychiatric disability other than PTSD that are entitled to presumptive service connection are far outweighed by the medical evidence discussed above. Whether any perceived symptoms/findings represent a psychiatric illness is a complex medical question, and the Veteran is a lay person without the education and training required to offer a competent assessment on this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds most probative the December 2012 VHA medical expert's opinion, as the examiner thoroughly reviewed the evidence of record and provided opinions as to the psychiatric diagnoses provided during the pertinent presumptive period one year after the Veteran's separation from service. For the foregoing reasons, the Board finds that service connection on a presumptive basis for a psychiatric disability other than PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The appeal is denied. ORDER Service connection for a psychosis, on a presumptive basis, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs