Citation Nr: 1310706	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  05-28 829A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from February 1, 1977, until March 22, 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas.

In May 2010, the Veteran testified at a personal hearing over which the undersigned acting Veterans Law Judge presided while at the RO.  A transcript of the hearing has been associated with the claims file.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the May 2010 hearing, the undersigned clarified the issue on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant. 

In August 2010, the Board reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder and remanded the matter for additional development, to include obtaining records from the Social Security Administration and to schedule a VA examination.  In June 2012, the Board again remanded the claim to attempt to obtain Social Security Administration records.  As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the 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).

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 Veteran does not have an acquired psychiatric disorder that had onset during or as a result of service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In addition, the notice requirements 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).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO.  Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation."  Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect).

In this case, the duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the Veteran in August 2009 that fully addressed all notice elements.  The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has he 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 a November 2009 Supplemental Statement of the Case after the notice was provided.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

VA provided the Veteran with a VA examination in September 2010 to determine the etiology of his acquired psychiatric disorder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  This medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The examiner provided an opinion as to the etiology of the Veteran's acquired psychiatric disorder in the September 2010 examination report and provided addendum opinions in December 2011 and January 2012.  In this regard, the Board also finds that there has been substantial compliance with its August 2010 remand as the RO provided the Veteran with an adequate VA examination.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Per the August 2010 Board remand, the RO attempted to obtain the Veteran's records from the Social Security Administration.  In October 2010, the Social Security Administration indicated that the agency did not have a medical file for the Veteran.  In February 2012, the RO notified the Veteran that his Social Security Administration records were unavailable and asked that he send copies of the records if in his possession.  In March 2012, the RO made a formal finding that Social Security Administration records were unavailable and that further attempts to obtain the records would be futile.  In April 2012, the Veteran stated that the Social Security Administration told him that he would have to pick up his records; therefore, the Board remanded this matter in June 2012 to allow additional time for the Veteran to submit the records.  As of the date of this decision, the Veteran has not provided records from the Social Security Administration.  Based on the October 2010 response from the Social Security Administration, there is no reason to believe that Social Security Administration records exist.  VA's duty to assist in obtaining federal records does not extend to a request for assistance that is unreasonable and tantamount to a fishing expedition.  See Gobber v. Derwinski, 2 Vet. App. 470 (1992).  Accordingly, the Board finds that there has been substantial compliance with its August 2010 and June 2012 remand orders as the RO attempted to obtain the records and provided time for the Veteran to submit copies of the records.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110 (West 2002).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R.  § 3.303(d) (2012).

To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service.  Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).

Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculosis disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012).  In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service.  38 C.F.R. § 3.307(a) (2012).  The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations.  38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time.  In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease."  Id.

If evidence of a chronic condition is noted during service or during the presumptive 
period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease.  Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed."  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Congenital or developmental defects such as personality disorders and mental deficiency are not diseases or injuries within the meaning of applicable legislation.  38 C.F.R. § 3.303(c).  Therefore, they are not eligible for direct service connection.  However, service connection may be awarded if the disability is aggravated by a superimposed disease or injury during active service.  VAOPGCPREC 82-90 (O.G.C. Prec. 82-90).

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.

A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012).  In this case, the Veteran's entrance examination does not show complaints or a diagnosis of an acquired psychiatric disorder.  Evidence also fails to show that he clearly and unmistakably had an acquired psychiatric disorder prior to service.  Therefore, he is presumed mentally sound at entrance to service.

Service treatment and personnel records include a March 1977 psychological evaluation which shows the Veteran had a personality disorder with deficiency in attitude and motivation.  The provider said the Veteran was manipulative and immature and opined that efforts to retain him would be an excessive burden to the unit.  Discharge was recommended.  A personal statement from the Veteran indicates that he did not like the way he was being treated.  He did not want to bear arms against his enemy and did not want to kill.  He said he was unable to adjust to military life and that he was not able to do his duty without doing something bad or harming himself.  The proposal for discharge indicates that the Veteran had been to the CHMA and chaplain and threatened suicide on several occasions because he could not adjust.  Both the chaplain and psychiatrist predicted that the Veteran would attempt bodily injury; therefore, discharge was recommended.  A separation examination is not of record.  As noted above, service connection for a personality disorder is not warranted; however, service connection may be awarded if the disability is aggravated by a superimposed disease or injury during active service.

Since service the Veteran has been diagnosed with posttraumatic stress disorder (PTSD), bipolar disorder, major depressive disorder, and mood disorder.  None of the VA or private treatment records relates any of the disorders to service.  Notably, PTSD and bipolar disorder were diagnosed in 2002.  Since filing his claim in April 2004, he has not been diagnosed with PTSD or bipolar disorder; therefore, without a current diagnosis, service connection for PTSD and/or bipolar disorder cannot be granted.

Major depressive disorder or depression and mood disorder have been diagnosed during the pendency of the Veteran's claim.  However, none of his VA or private treatment records indicate that the conditions had onset during or as a result of his brief period of active service.

A September 2004 private mental health report shows that the Veteran said major depressive disorder was diagnosed in 1995 after the death of his son.  The examiner noted his past diagnosis of PTSD and said it was related to the death of his son.  The diagnosis was major depressive disorder, recurrent moderate and alcohol abuse.  Etiology was not indicated.

During his May 2010 Board hearing, the Veteran testified that he had intended to stay in service and was unsure as to why the military decided to discharge him.  Upon questioning by the Board, the Veteran said he was not treated or diagnosed with a psychiatric disorder during service.  He said his acquired psychiatric disorder had onset due to the way his drill instructor treated him.  He said his drill instructor confronted him and upset him.  He said he was not permitted to seek treatment for his mental health during service and could not recall how long he waited after service to seek treatment.

In September 2010, the Veteran had a VA examination.  During the examination, the Veteran initially reported that his depression had onset in 1995 but then said his symptoms really started when discharged from service.  He also reported that his symptoms had onset once returning home and that he became very depressed in 1995 after his son was killed.

The examiner reviewed service treatment and personnel records and noted that the Veteran was not sent to combat zones and did not experience significant wounds or injuries.  Upon asking about the incident with the drill instructor, the Veteran said the instructor upset him and that he threatened to kill the instructor.  He said military life was not for him and that he attempted to obtain a discharge due to bilateral foot conditions.  When informed that the military would not discharge him for his feet, he initiated behavioral problems in an attempt to be discharged.  Post military stressors included his wife leaving him and taking their child.  Prior treatment records reviewed by the examiner show the Veteran reported having been shot and stabbed by a significant other.  He did not mention the incident until the examiner asked about it.  He said the attacks occurred after his wife left him.

The examiner noted psychotic symptoms, such as auditory hallucinations, but found that it is less likely that these are true psychotic symptoms and more likely that they are related to either acute intoxication or withdrawal from substances.  The examiner said there may be some psychosis associated with depression but the examiner could not "tease these issues apart."  The examiner also addressed the past PTSD diagnosis and found that while the Veteran was not involved in any traumatic events in service, he was shot and stabbed by a former girlfriend.  However, the examiner related his nightmares, avoidance and detachment as well as his minor arousal symptoms to depression and/or substance abuse rather than PTSD.  

The diagnosis included cannabis dependence, alcohol dependence, mood disorder secondary to substance dependence, and personality disorder, not otherwise specified with some traits of antisocial and borderline personality disorder.  Because the Veteran voiced suicidal ideation or intent during service likely as a manipulative strategy to force discharge, and given his report after being in the service for eight days that he wanted a discharge and threatened to shoot his drill sergeant, the examiner opined that a diagnosis of personality disorder was warranted during service.  The examiner also opined that the symptoms in service were not consistent with depression.

The examiner further stated that the Veteran's depression and social withdrawal was better explained by his variety of difficult life situations, including having been shot and stabbed, having significant substance abuse, having been incarcerated multiple times, and having experienced his son's death, rather than military experiences.  The examiner reiterated the inconsistency in the reported onset of symptoms and opined that while a specific onset of symptoms could not be determined, it was clear that the onset of depression was after his period in service rather than during service.

In a December 2011 addendum, the examiner opined that the mood disorder was secondary to substance abuse and that the report of primary onset of depressive symptoms was associated with the death of his son.  The examiner indicated that behavioral problems as defined by threatening to kill his drill sergeant and reporting that he was planning to commit suicide were not manifestations of depression.  Rather, they were manifestations of personality disorder.  Therefore, the examiner opined that the behavior the Veteran displayed in service was not an early manifestation of his current depression.  His behaviors were most likely the result of a personality disorder as defined as a personality disorder, not otherwise specified.

The Board has considered all of the evidence but finds that service connection for an acquired psychiatric disorder is not warranted.  The Board has considered the Veteran's lay statements, and in certain circumstances lay evidence may be sufficient to establish a medical diagnosis or nexus.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever).

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

To the extent that the Veteran is able to observe the onset of his symptoms, his opinion is outweighed by the competent medical evidence as set forth above.  While the Board is sympathetic to his claims, and he is competent to describe that which he experienced in service, the Board finds that his lay statements are of limited probative value.  Specifically, his reports as to the onset of symptoms have been inconsistent.  He has reported onset of depression as during service, after discharge from service, and as after his son's death in 1995.  He has also provided inconsistent statements regarding his mindset during service.  Specifically, during service, he submitted a written statement indicating that he did not want to bear arms or kill the enemy, did not want to be in service, and could not adjust to service.  His statement indicated the possibility of injuring himself or doing something bad.  On the other hand, after service, he told medical providers that he threatened to kill his drill sergeant and that as a result, he was denied the right to shoot a weapon, leading to depression during service.  In addition, he told the Board he intended to stay in service and was unsure why he was discharged, while he told medical providers that he purposefully sought a medical discharge, first based on foot disabilities and then based on mental health concerns.  Accordingly, based on the Veteran's inconsistent statements, the Board finds that his reports of onset cannot be deemed to be credible and are entitled to little probative weight.

Further, there is no indication that he possesses the requisite medical knowledge or education to render a probative opinion involving medical diagnosis or medical causation.  Here, the competent and credible medical evidence shows that the Veteran was assessed with a personality disorder in service.  The VA examiner also found that the Veteran's symptoms during service were those of a personality disorder and not depression.  As noted above, personality disorders are not subject to service connection.  38 C.F.R. § 3.303(c).

As for depression, none of the VA or private treatment records relates the disorder to service.  The VA examiner specifically found that the mental health symptoms reported and documented in service were not symptoms of or the onset of depression and that based on the Veteran's reports of onset and past medical history, his depression had onset subsequent to service, proximal to his son's death.  Specifically, the examiner found no in-service trauma and found that the current depression and social withdrawal were better explained by the Veteran's variety of difficult life situations.  The examiner's findings were based on a review of the claims file and on the Veteran's lay statements.  Accordingly, the preponderance of the evidence does not show that depression had onset during service or that the condition was in any way related to service.  Finally, the VA examiner diagnosed a mood disorder.  However, the examiner specifically found that the disorder was secondary to substance abuse.

Based on the foregoing, the Board finds that service connection for an acquired psychiatric disorder must be denied.  Personality disorders are not subject to service connection unless another disorder is superimposed on and aggravates the underlying disorder during service.  Here, the evidence does not show that the Veteran had an acquired psychiatric disorder superimposed on his personality disorder during service and does not otherwise show a direct relationship between depression or mood disorder and service.

The Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder.  Thus, the benefit-of-the-doubt rule does not apply and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


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