Citation Nr: 1310704 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 08-29 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a psychiatric disability, to include as due to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from August 1953 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in a December 2009 Travel Board hearing. A copy of the transcript is of record. In an April 2011 decision, the Board reopened the previously denied claim for service connection for a nervous condition and remanded the claim on the merits for additional development. The case was again remanded in August 2011 and August 2012 for further development and consideration. Additional evidence in the form of additional argument by the Veteran's brother as well as two medical statements addressing the Veteran's current status of the Veteran as having dementia. Lacking decision making capacity, and being unemployable. The argument from the Veteran's brother is cumulative of information he provided previously, and the medical reports are not relevant to the question as to the onset or etiology of the Veteran's psychiatric disability. Accordingly, there is no prejudice to the Veteran in the Board's consideration of this evidence in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT 1. An acquired psychiatric disorder was not present in service or for many years thereafter. 2. The most probative evidence indicates the Veteran's current psychiatric disorder is not related to service or a service-connected disability. CONCLUSION OF LAW The requirements for establishing service connection for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a February 2007 letter, issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. VA has obtained service treatment records, assisted the appellant in obtaining post service medical evidence, afforded the appellant physical examinations with medical opinions, and afforded the appellant the opportunity to give testimony before the Board. All available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; the appellant has not contended otherwise. The Board remanded this claim several times. The Appeals Management Center (AMC) contacted the National Personnel Records Center (NPRC) and the Social Security Administration (SSA) for the Veteran's records but was advised that no such records exist. In a July 2010 letter, the AMC notified the Veteran of this finding and requested that he submit any records in his possession regarding service personnel records or SSA disability records. He neither responded to that letter, nor to the February 2011 supplemental statement of the case (SSOC), regarding the nonexistence of these records and resultant absence of any such records from the file. The NPRC indicated that the Veteran's records were in a fire-related area. The AMC associated September 2010 Memoranda to the claims file describing the steps it took to obtain the service personnel records and SSA records. The Veteran was also afforded an examination, and a nexus opinion was provided regarding his psychiatric disorder. Ongoing treatment records were also obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As noted above, the Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ asked specific questions directed at identifying the onset and nature of the Veteran's psychiatric disability, and inquired as to the treatment the Veteran had received and was currently receiving in an attempt to identify any outstanding treatment records or other pertinent evidence not currently associated with the claims file. 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 Board hearing. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and testifying at a hearing. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific 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. Service connection may also be granted for disability that is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA has a heightened duty to assist the Veteran in developing his claim since the service personnel records may have been lost or destroyed by fire. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The case law does not, however, lower the legal standard for proving a claim for service connection but, rather, increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records are negative for any findings, complaints or treatment of a psychiatric condition. The records show treatment for stomach disorders. He also underwent spermatocelectomy for removal of a spermatocele in November 1954. Separation examination in July 1956 was negative for psychiatric problems. In July 1956, the Veteran requested service connection for high blood pressure, stomach disability, and "an operation." Ultimately, service connection was granted for postgastrectomy syndrome, ventral hernias due to postgastrectomy syndrome, and spermatocelectomy. In August 1956, A.W., the Veteran's mother, stated she had information regarding the Veteran's physical condition. She stated, in 1951, the Veteran ruptured a blood vessel in his stomach during a high school football game which was cured. He joined the Army and started having trouble with his stomach in Korea in 1953. After separation from service, she also noted the Veteran has been treated by a private physician for ulcers. In correspondence dated in January 1957, the Veteran's private physician, H.R., M.D., stated, after a complete history and through physical examination, he diagnosed the Veteran with possible peptic ulcer. A VA examination was conducted in August 1958. The Veteran complained of bellyaches, headaches, and ear trouble during his service in Korea. He also noted an in-service operation on his right testicle. Neurological examination was normal. In a letter from a private physician dated in November 1964, it was noted that the Veteran passed out at a bank and had a large bowel movement. He underwent bilateral vagetomy and approximately 60 percent restriction of his stomach. The Veteran was hospitalized at a private hospital complaining of anxiety and depression in December 1967. It was noted the Veteran had no history of prior psychiatric treatment. On intake, regarding the onset of the condition, it was noted "[i]n February of 1967, patient became depressed and complained of not feeling well . . . he remained depressed until May of 1967." He became overly anxious concerning his health and complained of every ache and pain. He felt inadequate to perform his job as a truck driver and demoted himself to laborer. He began talking about leaving his job and stated that he felt he was incapable of doing his share of the work and branded as a shirker by fellow workers. Subsequent treatment records reveal multiple treatment and hospitalizations for schizophrenia. In February 1968 the Veteran requested increased VA benefits. In an April 1968 rating decision, the Veteran was granted nonservice-connected pension benefits due to psychoneurosis. However, service connection was denied for the psychiatric disorder. In statements from March 1983, the Veteran's brother, P.E.W., related that prior to entering service the Veteran had favorable, productive behavior, with no indication of mental illness. Mr. W. reported that the Veteran had nervous breakdowns on two occasions during service, and was hospitalized for 10 months due to the psychiatric disorder. Mr. W. stated that, in Korea, the Veteran engaged in delusionary behavior which resulted in his arrest by military police, an Article 15 demotion, and hospitalization and treatment for paranoia, hallucinations, and depression. Mr. W. stated that the Army and VA did not inform the Veteran's family of the nature of the Veteran's mental illness. Mr. W. stated that after the Veteran had more than 10 years of a productive life after service, he began to suffer hallucinatory lapses that caused him to believe the cold war was still on and that he was still serving in an undercover capacity. The Veteran has submitted similar statements. In addition, the Veteran has stated that his service-connected disabilities have either caused or aggravated his schizophrenia. In a May 2003 VA treatment note, a VA staff psychiatrist stated that the Veteran suffered psychiatric decompensations while in Korea in service, was hospitalized in Korea for 10 months, returned to the U.S., and was hospitalized for another year. The psychiatrist concluded that the Veteran has had a psychiatric disorder since service. In a May 2007 treatment note, a VA licensed clinical social worker (LCSW) stated the Veteran has a chronic psychiatric history dating to 1956. In a January 2010 VA treatment note, a VA staff psychiatrist stated "after reviewing [the Veteran's] military medical records regarding his operation and the difficulties he encounter[ed] in the period post operation after his gastrectomy, I find no correlation or relationship between this operation and his schizophrenia." In a March 2010 treatment note, the psychiatrist added that in the 1960's the Veteran had a gastrointestinal hemorrhage in a bank, which was very embarrassing. He also noted that the Veteran subsequently mentioned feeling depressed due to medical problems and surgeries. These complaints were prior to the Veteran's first diagnosis of schizophrenia. The psychiatrist then stated that it was his opinion that "there could be a remote possibility of a relationship between the episodes of depression and his schizophrenia." However, the psychiatrist also noted that he believed the probability of these incidents being connected was very low. A VA examination was conducted in October 2011. The examiner opined that it was less likely than not that the Veteran's postgastrectomy syndrome, ventral hernias or spermatocelectomy caused the Veteran's schizophrenia. The examiner also opined that it was possible that the Veteran's stomach problems and related postgastrectomy syndrome aggravated the schizophrenia symptoms but the examiner was unable to provide an opinion on aggravation of the symptoms without resorting to mere speculation. In an addendum dated in September 2012, the examiner noted the contentions of the Veteran and his brother, and that it was possible that the Veteran had psychiatric symptoms in service. However, the examiner noted that there was no medical evidence in the claims file to indicate that the Veteran was diagnosed or treated for schizophrenia prior to the 1960's. The examiner concluded there is no evidence in the claims file to confirm that the Veteran's stomach problems and related postgastrectomy syndrome aggravated the schizophrenia symptoms. Upon review of the record, the Board finds that the preponderance of the credible and probative evidence is against the claim for service connection on a direct or presumptive basis. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). While the Veteran and his brother now contend the Veteran suffered from a nervous breakdown during service and was hospitalized for that disorder for months, such contentions are not supported by the other evidence of record. In this regard, the Veteran's service treatment records reveal no complaints or findings regarding any psychiatric disability, and no psychiatric abnormality was noted on separation examination in July 1956. While the Mr. W. alleges the statement from the Veteran's wife during his 1967 hospitalization concerning the lack of prior psychiatric treatment was based on her lack of knowledge of the Veteran's in service treatment, the Board notes that the Veteran's mother made no mention that the Veteran had a psychiatric disorder in her August 1956 statement. Likewise, in his initial claim for service connection filed in July 1956, the Veteran made no mention of a psychiatric disorder. The first treatment for a psychiatric disability was in 1967. In his 1968 claim, the Veteran made no mention of in-service psychiatric treatment. Mr. W. indicates that the Veteran is 7 years his senior, suggesting that Mr. W. is attempting to recall events that purportedly happened to his brother while in service, during a period when Mr. W. was approximately 12 to 15 years old. Moreover, Mr. W. has suggested that the family was not advised by the Army or VA as to the nature of the Veteran's illness. Thus, a question as to how Mr. W. arrived at the conclusion that the Veteran had a mental breakdown in service is raised in this case. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and the significant time delay between the affiants' observations and the date on which the statements were written are factors that the Board can consider and weigh against a veteran's lay evidence). Indeed, it appears from Mr. W.'s 1983 statement and his 2013 argument that it was the Veteran providing the information concerning the alleged breakdowns in service, which even Mr. W. indicated in his 1983 statement was confusingly relayed by the Veteran. The Board finds the contemporaneous service treatment records and the medical records dated closer in time to service, which reveal no prior history of psychiatric treatment and symptoms arising shortly before the treatment in 1967, are significantly more reliable and probative than the reports of in-service psychiatric symptoms being relayed by the Veteran and his brother more than 20 years after the Veteran's discharge from service. Id. Moreover, the Veteran's DD Form 214 reflects his military occupational specialty was military police. It seems unlikely that a person having suffered a nervous breakdown would be assigned to a position usually requiring possession and use of a firearm. While certainly not dispositive of the claim, such inconsistency tends to weigh against the claim. In short, the Board finds that the preponderance of the probative evidence is against a finding that the Veteran suffered from a psychiatric disorder during service or a psychosis within one year following discharge from service. The first post service evidence of a psychiatric disability was in 1967, more than 10 years after his discharge from service. As the Board has found the assertions of in-service psychiatric symptoms and treatment are not reliable, any medical opinions based upon such unreliable and unsubstantiated assertions are not probative, to include the opinions of the VA psychiatrist contained in the May 2003 treatment note and the VA LCSW dated in May 2007. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). Turning to the question of service-connection on a secondary basis, the Board also finds that the preponderance of the evidence is against the claim. In a January 2010 VA treatment note, a VA staff psychiatrist stated "after reviewing [the Veteran's] military medical records regarding his operation and the difficulties he encounter[ed] in the period post operation after his gastrectomy, I find no correlation or relationship between this operation and his schizophrenia." In a March 2010 treatment note, the psychiatrist added that in the 1960's the Veteran had a gastrointestinal hemorrhage in a bank, which was very embarrassing. He also noted that the Veteran subsequently mentioned feeling depressed due to medical problems and surgeries. The psychiatrist opined that there could be a remote possibility of a relationship between the episodes of depression and his schizophrenia, but that the probability of these incidents being connected was very low. Additionally, the October 2011 VA examiner opined that it was less likely than not that the Veteran's postgastrectomy syndrome, ventral hernias or spermatocelectomy caused the Veteran's schizophrenia. The examiner also opined that it was possible that the Veteran's stomach problems and related postgastrectomy syndrome aggravated the schizophrenia symptoms but the examiner was unable to provide an opinion on aggravation of the symptoms without resorting to mere speculation. In an addendum dated in September 2012, the examiner noted the contentions of the Veteran and his brother, and that it was possible that the Veteran had psychiatric symptoms in service. However, the examiner noted that there was no medical evidence in the claims file to indicate that the Veteran was diagnosed or treated for schizophrenia prior to the 1960's. The examiner concluded there is no evidence in the claims file to confirm that the Veteran's stomach problems and related postgastrectomy syndrome aggravated the schizophrenia symptoms. The examiner's opinion considered all of the evidence of record, to include his service treatment records, post-service treatment records, and lay testimony, and conducted a clinical evaluation in rendering his opinion. Moreover, the examiner explained why an opinion could not be provided without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). To the extent that the Veteran himself believes that his current disability is related to his service connected disabilities, neither the Veteran nor his brother have shown that they have specialized training sufficient to render a medical opinion as to the etiology of psychiatric disorders. Indeed, the question of whether the Veteran's psychiatric disorder is caused or permanently worsened by his service connected disabilities is not a matter capable of lay observation and requires medical expertise to determine. Accordingly, their lay opinions as to the question of secondary service connection are not competent medical evidence. The Board finds the opinions of the VA psychiatrist and VA examiner significantly more probative than the Veteran's and his brother's lay assertions. In summary, the preponderance of the competent and probative evidence is against a finding that the Veteran's psychiatric disorder was caused or aggravated by the service connected disabilities. In reaching the above conclusions, 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 for service connection on a direct, presumptive, and secondary basis, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for psychiatric disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs