Citation Nr: 1310949 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-30 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to a waiver of recovery of an overpayment of nonservice-connected pension benefits in the calculated amount of $3,296.00. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2010, the Board issued a decision in this case reopening the Veteran's claim for service connection for residuals of a head injury to include headaches and tinnitus, and denying service connection for residuals of a head injury, to include headaches and tinnitus, as well as denying entitlement to service connection for a psychiatric disorder. The Veteran appealed the Board's May 2010 decision to the United States Court of Appeals for Veterans Claims (Court). By a Memorandum decision in June 2011, the Court vacated and remanded that part of the May 2010 decision that denied service connection for residuals of a head injury, to include headaches and tinnitus, as well as that part of the decision that denied entitlement to service connection for a psychiatric disorder for further action. The Board remanded the claims in November 2011 for additional development and the case has since been returned to the Board for review. In October 2012, the Board again denied the claim for service connection for head injury, to include headaches and tinnitus, and remanded the issue of service connection for a psychiatric disability for additional development. The requested development has been completed. Claims for service connection for psychiatric disorders, may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). This appeal contains a hybrid record; part is in a physical claims folder and in part is in the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to waiver of overpayment is remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Service treatment records reveal diagnoses of a personality disorder during service. 2. A single notation on the January 1968 separation examination indicates a diagnosis of anxiety neurosis with a normal psychiatric clinical evaluation. 3. Service treatment records reveal the Veteran incurred a head injury during service, without evidence of residual disability. 4. There is no evidence of psychosis during service or the first year after separation from service. 5. There is no credible evidence linking any currently diagnosed psychiatric disability to active service or to any incident therein, to include the head injury incurred during service. 6. Service connection is not established for any disability. CONCLUSION OF LAW A psychiatric disability was not incurred in or aggravated by active military service; not be presumed to have been incurred in service; and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 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). 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 claimant'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. The appellant has been provided the requisite notice as indicated above with respect to his claim in a letter dated June 2006, which was prior to the initial RO rating decision denying the benefit sought. See, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The June 2006 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements. The appellant has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). In addition, the duty to assist the Veteran has also been satisfied in this case. VA has obtained available service treatment records; private medical records; VA treatment records; assisted the appellant in obtaining evidence; and, afforded him the opportunity to present, testimony, written statements and evidence. He has been accorded multiple VA examinations with respect to his claimed disability. All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file and he has not contended otherwise. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. This case was remanded in November 2011 to request Social Security Administration (SSA) records. The records were requested and records were sent via photocopy and associated with the claims file. However, the records associated with the claims file pertain to the Veteran's former wife and are not pertinent to the issues on appeal. The RO found that the records did not exist and further efforts to obtain them will be futile. Subsequent notification from SSA in May 2012 confirms that records have been destroyed and are unavailable. The Board therefore finds that the November 2011 remand directive was substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Veteran was also provided multiple VA examinations in conjunction with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 ; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The medical examination conducted in December 2012 is 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). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Service Connection Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Veteran contends that he has a psychiatric disability which was incurred during service. He has claimed that he developed a psychiatric disability as a residual of an in-service head injury and that his psychiatric symptoms of anxiety and/or depression have existed since the time of the injury. On entrance into service in April 1967, the Veteran reported a medical history of a head injury prior to service. On clinical examination of the Veteran, no abnormities of the head or neurologic system were found and the psychiatric examination was also normal. An October 1967 mental hygiene note reveals that the Veteran was referred for psychiatric consultation because he was on his third military occupational specialty (MOS) school, having switched two times previously because he did not like the MOS. He expressed a desire to get out of the service. After examination, the diagnosis was chronic mild, passive-aggressive reaction, which was manifested by stubbornness, procrastination, inefficiency, passive obstructionism, and poor and impulsive judgment. The examiner was specific that the Veteran was not mentally ill and is cleared psychiatrically for action deemed appropriate by command. The examiner feels that limits should be clearly set forth for this individual and any infractions should be met with disciplinary action. If this individual fails to function as an effective solider after a period of rehabilitation, he should be administratively separated from service. On January 8, 1968, the Veteran reported a medical history on service separation of a pre-service history of head injury in a car accident in 1966. He also reported a history of frequent trouble sleeping, but he denied a history of nightmares, depression, excessive worry, loss of memory, or nervous trouble of any sort. The psychiatric clinical evaluation of the Veteran was normal. However, the examiner noted "anxiety neurosis" and "behavior and personality disorder - immature type" in the summary of defects and diagnoses. Service treatment records show that the Veteran incurred a head injury on January 10, 1968. He was hospitalized for four days for observation in January 1968, following being struck in the right forehead area with a cue ball. He initially developed a large swelling in the right forehead area and complained of severe headaches. There was no loss of consciousness and the neurological examination was normal. Post-concussion syndrome was diagnosed. The Veteran was temporarily placed on limited duty. On January 22, 1968 another psychiatric examination of the Veteran was conducted. The Veteran's recent service history revealed that he refused to work in the mess hall, the job of his assigned MOS as a cook. He displayed a negative attitude, refused to work, and was uncooperative with his military supervisors. Examination elicited a history of difficulty in school and dropping out of school prior to service. On mental status examination the Veteran was noted as "immature, smiles like a sad little boy when talking of how he refused to pull duty." There was no evidence of psychosis. The Veteran stated that he wanted to leave the Army and the examiner found that there was no motivation on the Veteran's part for rehabilitation or therapy. The diagnosis was "passive-aggressive personality manifested by work inefficiency, stubbornness and difficulty with authority." The examiner indicated that the personality disorder existed prior to service and was not incurred in the line of duty. The examiner further stated that the Veteran "still exhibits character disorder noted at Fort Polk [October 1967 report] . . . his present attitude precludes further rehabilitative efforts in military service." Administrative separation was recommended. The Veteran was separate from military service on March 9, 1968. VA clinic records dated in February 1984 note the Veteran's report that he had taken Tylenol #3 for headaches since the head trauma during service. He was hospitalized at a VA facility in April 1984 for evaluation of the headaches. The summary of the hospitalization notes the history of the in-service head injury. The examiner also noted that the Veteran was then under tremendous financial stress. The neurological evaluation, which included a brain scan, was completely negative. Private treatment records dated in August 1985 show that an examiner noted nervous tension and prescribed Valium. In June and July 1987, the Veteran reported having constant headaches and indicated that he was given Valium by VA. In August 1987, a private psychiatric examination of the Veteran was conducted. The Veteran reported last working in 1979 and that he lived on public assistance. He reported a work history of construction and menial jobs. A criminal history of a felony robbery conviction, with two years incarceration, was noted after service. A more recent post-service head injury in a June 1987 car accident was also reported. After a full examination, the diagnosis was antisocial personality disorder, probable drug abuse, and a significant degree of anxiety and nervousness. The examiner indicated that "with some rehabilitation, I think he is capable of handling meaningful employment but his motivation is quite questionable." In October 1987, at a VA examination the Veteran reported a head injury during service and reported his post-service employment and criminal history. He reported that since his separation from service, he had been anxious, got into fights, and became easily frustrated and angered. The Veteran also indicated that he had severe headaches. The examiner diagnosed organic anxiety disorder. A private clinical psychologist evaluated the Veteran in March 1988. That examiner noted the Veteran's reported history of having sustained as many as 10 to 12 concussions in his lifetime from beatings, car accidents, and fights. The examiner indicated that the concussion had left the Veteran with markedly slow information processing skills and emotional lability. The examiner diagnosed organic brain syndrome, which was the result of the numerous noted concussions, as well as severe antisocial personality disorder. VA clinic outpatient treatment records dated from 1985 to 1991 reveal that the Veteran was treated at VA Mental Hygiene Clinic (VAMHC) with diagnoses of anxiety. For example, a March 1985 record shows that he reported having anxiety and a quick temper. The diagnosis was anxiety and he was prescribed valium. VAMHC treatment records dated through 1986 reveal continued diagnoses of anxiety being treated with a variety of prescription medications, as do VAMHC records dated in April 1989 and October 1990. In May 1991 a VA psychiatric examination of the Veteran was conducted for nonservice-connected pension purposes. The examiner acknowledged the prior diagnoses of anxiety disorder. The Veteran reported symptoms of "free-floating anxiety being quick-tempered, irritable, with intermittent explosiveness." He reported a history of being quarrelsome at work and getting into fights with coworkers and inevitably getting fired. A long history of anti-social, aggressive, and dysfunctional behavior impacting his school and occupational functioning was reported. After a full examination, the diagnosis was antisocial personality disorder, by history, and intermittent explosive personality by history. The examiner stated that the Veteran's history of anxiety symptoms and tension headaches was secondary to the described "personality and adjustment and social problems" and that there was no evidence of organic brain syndrome. VA treatment records dated 1991 to 1996 reveal periodic treatment with diagnoses of headaches and anxiety. An October 1991 record specifically notes that the Veteran reported a history of seven to eight concussions over his life. He had inpatient treatment for one day in October 1991, with the discharge diagnosis being mild generalized anxiety disorder. An October 1995 record indicates a continued diagnosis of anxiety, but no active psychosis. A May 1998 VA mental health treatment note reveals that the Veteran sought treatment for the problem of depression and anxiety. The diagnosis was listed as being "major depressive illness with psychosis." His reported symptoms were: sleep disturbance; irritability; hopelessness; and, decreased concentration, energy, and interest in activities. While the mental status examination noted symptoms of depressed mood, there was no evidence of active psychosis. VA treatment records dated from this point through August 2002 continue to indicate a diagnosis of major depression, with psychosis. A March 2000 hospitalization summary indicates that the Veteran was treated primarily for unrelated conditions. The list of diagnoses, however, included recurrent major depression, without further comment. Psychosis was not present during this period of hospitalization. An October 2001 letter from the Chief of VAMHC states that the Veteran's diagnosis was "recurrent depressive disorder, psychotic. He is taking alprazolam and sertaline." In October 2006, a VA psychologist reviewed the claims file and evaluated the Veteran. The examiner diagnosed depressive disorder, not otherwise specified, and antisocial personality disorder. The examiner commented that although the Veteran reported having experienced headaches several times a week since the in-service head injury, he did not report a change in the severity or frequency of his depressed mood, secondary to the physical discomfort or restricted physical functioning. The examiner indicated that it was "less likely than not" that the Veteran's depression was due to the head trauma in service. The examiner further opined that the Veteran's functional impairment was primarily the result of his antisocial personality disorder. A VA neurological examination was conducted in November 2006. That examiner also discussed in detail the Veteran's history as set forth in the claims file. The diagnoses also included nonspecific behavior-related headache and personality disorder. The examiner provided rationale for concluding that the noted neurological findings could not be the result of any service related events, including the cue ball incident. Specifically, the examiner indicated that the evidence did not show any dramatic behavioral change as a result of the head injury during service. The examiner added that the Veteran's headaches were a component of his personality disorder. In March 2006, at VAMHC evaluation, the Veteran reported symptoms of anxiety and anger. On mental status examination, he was oriented and his mood was dysphoric, irritable, and agitated. Memory, concentration, and recall were intact. Affect was full and appropriate, with thought content free of psychotic components. Insight and judgment were fair. The diagnosis was "depression NOS may more be anxiety NOS with anger dyscontrol." An April 2008 MHC note reveals a diagnosis of anxiety disorder, with a history of depression and drug seeking. In March 2012, a VA psychiatric examination of the Veteran was conducted. The examiner reviewed the evidence of record and noted that primary thrust of the recent medical documentation was that the Veteran continued to seek increased medication such as Aprazolam and Xanax. At this examination the Veteran denied a history of head injury prior to or subsequent to service, asserting that the only head injury he ever sustained was during service. The examiner reviewed the evidence of record including the service treatment records documenting the head injury during service and the diagnoses of personality disorder during service. The Veteran reported a fair mood, with depression at the end of the month when he gets low on funds. He is "hard-put to describe psychiatric symptoms. He says that he gets nervous when people threaten him (a perfectly reasonable phenomenon). . . . He continually states that he gets nervous but cannot give an indication of what he is nervous about and cannot describe it." Mental status examination revealed a flat affect, euthymic mood, and tangential and circumstantial speech, but no clear evidence of psychosis. Significant psychological testing could not be completed. The examiner indicated that the Veteran was "quite vague and unable to specify symptoms. He does claim depression with inconsistent frequency. He does indicate when he does not have his Alprazolam, he becomes irritable and much less calm. He cannot specify any dynamics of anxiety." The examiner indicated that the Veteran's descriptions were so vague that a diagnosis of "mood disorder NOS. The dominant diagnosis that seems to appear in his record over and over again is anxiety disorder NOS although there are diagnoses on his remote problem list of major depression with and without psychosis. His general behavior seems to be longstanding enough to indicate some kind of Cluster B personality disorder, most likely one with mixed passive-aggressive and antisocial features." The examiner stated that there is "no evidence-based reason to attribute either a mood disorder or a personality disorder to the head blow" during service. Accordingly, the examiner found it was "less likely than not that a clear connection can be made with an appalling amount of speculation between the head blow sustained in the military and current discerned psychiatric diagnoses." In April 2012, a VA examiner reviewed the record and the March 2012 examination report and stated "it is less likely than not that [the Veteran's] mental health diagnoses were incurred in or a result of his tenure in the military." In December 2012, the most recent VA examination of the Veteran was conducted. The examiner reviewed all the evidence of record. The examiner specifically noted that the medical documentation of the Veteran's in-service head injury was that he did not lose consciousness. However, at the examination the Veteran reported that he "woke up in the snow and then passed out again." The examiner specifically considered the diagnosis of anxiety neurosis on January 8, 1968 separation examination report and indicated that the evidence of the behavior exhibited during service was best captured by the diagnosis of Antisocial Personality Disorder and not by any Anxiety Disorder. Evidence for his [Antisocial Personality Disorder] can be found in multiple arrests, deception of others, disregard for the rights of others and this behavior starting before he was 18. More recently this behavior appears to have manifested in his drug-seeking behaviors in his efforts to be prescribed higher levels of alprazolam than his providers feel is warranted. When asked today about anxiety, his main stressor is his relationship with his wife. He denies any clinically significant depressive [symptoms]. There is no clear connection between the [Veteran's] assault while he was in the Army in [January] 1968 and any current psychological condition including PTSD, Depression, or any other Anxiety Disorder. Again, he is more characterized by a [diagnosis] of [Antisocial Personality Disorder], which pre-dates his military service. The current psychiatric disabilities are variously diagnosed as anxiety disorder and/or depression. After a full longitudinal review of all the evidence of record, the most recent VA examination report calls in to question whether these diagnoses are even accurate or warranted. Nevertheless, with diagnosis of depression and anxiety disorder of record during the appeal period, there is evidence of a current psychiatric disability. The January 8, 1967 separation examination report indicates a diagnosis of anxiety neurosis, while indicating a normal psychiatric clinical evaluation on the same record. The service treatment records are otherwise void of any rational or evidence to support this diagnosis. The evaluation of the VA examiner in December 2012 also indicates that this diagnosis is incorrect and unsupported by the evidence of record, and that the proper diagnosis of the Veteran's behavioral problems during service is a personality disorder. The service treatment records indicate that the Veteran had a head injury during service. The Veteran has a current psychiatric disability variously diagnosed as anxiety disorder and/or depression. However, there is no credible evidence linking the current psychiatric disability to service. All of the medical opinions of record indicate that any current psychiatric disability is not causally linked to the Veteran's military service, to the head injury during military service, or the single notation of anxiety neurosis during service. The service treatment records also reveal diagnoses of personality disorder on psychiatric examination reports dated in October 1967 and January 1968. The diagnosis of personality disorder is supported by the findings and rationale on these examination reports and the VA examiner who conducted the December 2012 examination indicates that these diagnoses are accurate based upon the evidence of record. The evidence of record establishes continued diagnoses of personality disorder, most recently confirmed on the December 2012 VA examination. A personality disorder, however, is not a disability within the meaning of applicable legislation for VA benefits. See 38 C.F.R. § 3.303(c). Accordingly, service connection for a personality disorder, variously diagnosed, must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service connection on the basis of continuity of symptomatology can only be established for certain chronic diseases, to include psychosis. Walker v. Shinseki, No. 2011-7184, WL 628429 (C.A.Fed., Feb. 21, 2013); 38 C.F.R. § 3.309(a). There is no evidence of psychosis during the Veteran's military service or currently. 38 C.F.R. § 3.384 (2012). Accordingly, service connection cannot be established on this basis. Walker v. Shinseki, No. 2011-7184, WL 628429 (C.A.Fed., Feb. 21, 2013). Moreover, there is no evidence of psychosis within the first post-service year. Accordingly, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307, 3.309(a). The Veteran has also contended that his psychiatric disability is due to his headaches and tinnitus. Service connection for headaches, tinnitus, or any other disorder is not in effect, and therefore, service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. At his hearing before the Board in December 2009, the Veteran raised the issue of entitlement to service connection for PTSD, contending that, at the time of the in-service head injury, he feared for his life. The Veteran's claim for service connection for a psychiatric disorder must necessarily include any other psychiatric disorder shown by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). The record shows that the Veteran has been treated and evaluated for psychiatric problems since at least 1984. Numerous physicians and other examiners have considered the issue and were cognizant of the Veteran's head injury in service. But no examiner has diagnosed PTSD or that PTSD is related to his military service. Accordingly, there is no medical evidence that the Veteran currently has PTSD related to his military service, service connection for PTSD must also be denied. The preponderance of the evidence is against the claim of entitlement to service connection of a psychiatric disorder, and therefore, the benefit of the doubt doctrine is not for application. Accordingly, service connection for a psychiatric disorder is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disability is denied. REMAND A December 2012 rating decision denied entitlement to a waiver of recovery of an overpayment of nonservice-connected pension benefits in the calculated amount of $3,296.00. In January 2012 the Veteran filed a timely notice of disagreement with respect to this determination. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the Veteran must be provided a statement of the case that addresses the issue of entitlement to a waiver of recovery of an overpayment of nonservice-connected pension benefits in the calculated amount of $3,296.00. The Veteran must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issue to secure appellate review by this Board. Accordingly, the case is remanded for the following action: The RO must issue a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to waiver of recovery of an overpayment of nonservice-connected pension benefits in the calculated amount of $3,296.00. The Veteran and his representative are reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal to the December 2012 waiver decision must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects the appeal as to this issue, the case must be returned to the Board for appellate review No action is required by the Veteran until he receives further notice; however, the Veteran may present additional evidence or argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs