Citation Nr: 1311435 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 04-22 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disorder other than post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from January 1953 to January 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied service connection for PTSD. In June 2003, the Veteran testified at an RO formal hearing. A transcript of the hearing is in the Veteran's file. In January 2007 and November 2009, the Board remanded the Veteran's service connection claim, initially referred to as a service connection claim for PTSD, and subsequently rephrased as a service connection claim for a psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (instructing that service connection claims for PTSD should be construed broadly to encompass any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record). In May 2011, the Board denied service connection for PTSD, and remanded the claim of service connection for a psychiatric disorder other than PTSD for further development. In December 2011, the Board again remanded the Veteran's service connection claim for a psychiatric disorder other than PTSD. In September 2012, the Board determined that the medical opinions obtained pursuant to the prior remand directives were insufficient, as they were all predicated on an inaccurate psychiatric history. Specifically, the Board determined that a misfiled pre-induction medical examination report for another veteran had been erroneously associated with this Veteran's claims file, and thus all prior medical opinions had been predicated on the false premise that the Veteran had preexisting psychiatric symptoms noted on his induction examination. Accordingly, a new medical opinion, predicated on a factually accurate psychiatric history, was requested and obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). FINDINGS OF FACT The probative evidence fails to relate the Veteran's current psychiatric disorder, bipolar affective disorder, to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder other than PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA 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. Letters issued in May 2002 and February 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. See Shinseki v. Sanders, 556 U.S. 396 (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). The Veteran's available service treatment and personnel records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). The Veteran has been afforded two VA psychiatric examinations during the pendency of this claim, and a medical opinion predicated on an accurate psychiatric history was obtained in October 2012. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The psychiatric examinations are sufficient, in that they reflect a diagnosis of bipolar disorder, which is consistent with the diagnosis provided by his treatment providers. The October 2012 medical opinion is sufficient as it is unequivocal, based on a thorough and accurate review of the Veteran's claims file and psychiatric history, and supported by a detailed rationale. 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 Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); Dingess/Hartman, 19 Vet. App. at 486. Service Connection The Veteran contends that he developed his current psychiatric disorder as the result of his in-service experiences, namely an in-service assault. Establishing direct 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) (table). The Veteran was assessed as psychiatrically normal during his pre-induction and separation medical examinations, and he has not reported seeking any psychiatric treatment or voicing any related complaints during service. Rather, he reports that his psychiatric disorder stems from an in-service assault by five fellow service members, resulting in a broken nose, and that these service members subsequently harassed him until his transfer to another assignment. The Veteran's service treatment records include his treatment for a nose fracture in October 1953, and his personnel records reflect a unit transfer in January 1954, thereby corroborating some of the aspects of his report of an in-service assault and subsequent transfer. However, his personnel records do not reflect that the Veteran had any related behavioral problems at this time, as he received evaluations stating that he demonstrated excellent character and efficiency during his assignments to both units. After service, the Veteran was hospitalized for depression from October 1966 to January 1967 after a suicide attempt, at which time he reported a lifelong history of unhappiness and maladjustment, which he attributed to being the child of alcoholic parents. The Veteran sought VA pension benefits in November 1966 during this hospitalization, citing his nervous condition with onset in 1965 as the disabling condition qualifying him for benefits. Subsequent treatment records reflect the Veteran's psychiatric hospitalizations in 1987, 1988, 1989, 1990, 1991 for depression, although the Veteran was reporting some manic episodes during this time. During this treatment, the Veteran characterized his depression as a life-long problem, relating the development of his depression to being the child of alcoholic parents, his psychiatric exacerbations to the dissolution of his marriage, and his current depression to his estrangement from his son and related feelings of parental failure. At no time when receiving this treatment, nor when undergoing VA psychiatric examinations in 1991 and 1994, did he attribute his psychiatric symptoms or the onset of his psychiatric disorder to service. In 1997, his psychiatric disorder diagnosis changed from a depressive disorder to bipolar affective disorder, and subsequent treatment records through 2012 continue to reflect this diagnosis. Treatment records from 2001 first reflect the Veteran's report that his in-service experiences played a role in his psychiatric history, and the Veteran filed his service connection claim for PTSD in 2002. The Veteran underwent VA psychiatric examinations in 2007 and 2011 conjunction with his claim, during which he was diagnosed with bipolar affective disorder. In October 2012, a VA examiner who conducted the Veteran's 2011 VA psychiatric examination was advised of the Veteran's correct psychiatric history (namely that he was assessed as psychiatrically sound during his pre-induction medical examination) and re-familiarized herself with the Veteran's claims file. Thereafter, she opined that it was less likely than not that the Veteran's currently-diagnosed bipolar affective disorder was incurred in or caused by service. In support of this opinion, the examiner cited the lack of any indication in the Veteran's service records that he exhibited a psychological impairment during service, citing his favorable performance reviews that followed his claimed in-service assault and resulting fractured nose. The examiner cited the lapse of over 10 years between the Veteran's discharge from service and his first psychiatric treatment in 1966, as well as the Veteran's own reports over the years attributing his psychiatric problems to various nonservice-related stressors. She noted that he attributed his 1966 suicide attempt to the end of a romantic relationship and his subsequent psychiatric problems to impaired family relationships, including his divorce and strained relationship with his son. The examiner concluded that this psychiatric history, as chronicled in the Veteran's treatment records, did not support a finding of a relationship between the Veteran's current psychiatric disorder and service. Indeed, the treatment records do not support a chronology indicating the onset of a psychiatric disorder during service. While the evidence supports the Veteran's contention that he was assaulted during service and subsequently transferred to another unit, the record does not suggest that this in-service event triggered a psychiatric disorder. The Veteran's service treatment and personnel records fail to record any psychiatric symptoms during service, but rather indicate excellent psychosocial functioning. Further weighing against the claim is the fact that the Veteran's first psychiatric treatment after service was in 1966, more than a decade after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (holding that service connection may be rebutted by the absence of medical treatment for the claimed condition for many years after service). At the time of this 1966 treatment, the Veteran did not attribute his psychiatric symptoms to service, nor did he make such an assertion until approximately 2001, approximately one year prior to filing the instant claim for benefits. The Veteran is competent to report the onset of his psychiatric symptoms, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran is not competent, however, to relate his current psychiatric disorder, bipolar affective disorder, to service, as such is a matter requiring related medical expertise, which the Veteran does not claim to possess. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). The Veteran's opinion regarding the etiology of his psychiatric disorder is of no probative value. Conversely, the VA medical opinion obtained in October 2012 is afforded great probative value, as it was rendered by a qualified medical professional, and is unequivocal, based on an accurate and thorough review of the Veteran's psychiatric history, and supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, the opinion provider must be fully informed of the pertinent factual premises, provide a fully articulated opinion, and provide a supportive reasoned analysis). As the more probative evidence reflects that the Veteran's current psychiatric disorder, bipolar affective disorder, is unrelated to service, the preponderance of the evidence is against the claim for service connection for a psychiatric disorder other than PTSD; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a psychiatric disorder other than post-traumatic stress disorder (PTSD) is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs