Citation Nr: 1312776 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 05-03 478A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty from November 1962 to December 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, wherein the RO denied reopening service connection for amblyopia and denied service connection for a an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran timely appealed the RO's August 2004 rating action to the Board. Jurisdiction of the claims file currently resides with the RO in Cleveland, Ohio. In January 2006, the Veteran provided testimony before a Decision Review Officer concerning the appealed claims at the RO in Cleveland, Ohio. A copy of the hearing transcript has been associated with the claims file. The service connection for acquired psychiatric disorder claim at issue was previously remanded by the Board in February 2009 for further evidentiary and procedural development. This was accomplished, and in a July 2011 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD, and denied reopening service connection for amblyopia. Before the United States Court of Appeals for Veterans Claims (Court), the Veteran and representative expressly abandoned the appeal on the issue of reopening service connection for amblyopia. The Veteran appealed to the Court the Board's July 2011 decision on the issue of service connection for a psychiatric disorder. In a May 2012 Order, the Court granted a May 2012 Joint Motion for Partial Remand (JMR), which was adopted by Court order of the Clerk of Court without review by a Judge of the Court, vacated the Board's July 2011 decision as to the issue of service connection for a psychiatric disorder, and remanded the claim to the Board for readjudication in accordance with the JMR. The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. Symptoms of a psychiatric disorder were not chronic in service. 3. Symptoms of a psychiatric disorder have not been continuous since service separation. 4. The post-service symptoms diagnosed as cocaine dependence and alcohol dependence are not related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in June 2004 and July 2004, to the Veteran. These letters explained the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records and a report of private and VA post-service treatment and evaluation, as well as the Veteran's own statements in support of his claim. Correspondence from the SSA indicated that there are no records for the Veteran pertaining to any disability claim. The Veteran has not been examined by VA in connection with his claim for service connection of an acquired psychiatric disorder but, as will be explained below, the evidence does not demonstrate injury, disease, or event of psychiatric disorder during service; therefore, no examination or nexus opinion is required, and any opinion would be speculative, as there is no injury, disease, or event during service to which such currently diagnosed psychiatric disorder could be related. For this reason, a remand to provide the Veteran with a medical examination and/or obtain a medical opinion is not required with respect to the claim for service connection for an acquired psychiatric disorder. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required). The JMR also indicated the Board should obtain all potentially relevant VA treatment records or explain why such efforts were not warranted. Considering the language and context of the Veteran's statements at the hearing, and other medical histories of record, the Board finds the Veteran did not in fact receive treatment at the VAMC in 1972, and no mental health treatment records were created in 1972 at the Cleveland VAMC. The JMR agreement submitted to the Court is based on the mistaken assumption that the Veteran testified at the DRO hearing that he was "first diagnosed with mental health issues in 2002" - which tacitly implies a possibility of earlier mental health treatment that did not result in a "diagnosis." The Veteran's testimony at the DRO hearing that was that he was first "treated" for a mental problem in 2002, not that he was first diagnosed in 2002. The Veteran's response to the DRO's question of "when were you first treated for a mental problem?" was "2002." (See hearing transcript p.11) This distinction between diagnosis and treatment evident in the plain reading of the Veteran's testimony is important because it reflects that not even the Veteran has indicated now or at the DRO hearing that VA treatment records were created in 1972 at the Cleveland VAMC, such that only misreading of the Veteran's testimony could suggest otherwise. The JMR indicates that the Veteran "first attempted to seek treatment" at the VA Hospital in Cleveland on several occasions in 1972, but only speculates, contrary to the Veteran's testimony, as to whether there was any treatment. According to the Veteran's actual testimony, he was turned away from the VAMC in 1972. The Veteran stated at the January 2006 hearing before a Decision Review Officer at the RO that he "went to" the Cleveland VA Medical Center (VAMC) in 1972, but "they wouldn't talk to me" and that "nobody wanted to talk to me" (See hearing transcript p.12), which clearly evidences no mental health treatment was provided to the Veteran in 1972. The Veteran's testimony further indicates that he did not receive VA "treatment" for his psychiatric disorder until 2002, which logically precludes the possibility of "treatment" prior to 2002. (see hearing transcript, p. 11). Consistent with the Veteran's testimony at the January 2006 hearing that he did not receive mental health treatment from VA in 1972, or at any time prior to 2002, is the history the Veteran recently provided to a private psychologist in February 2013. To this private psychologist the Veteran reported that, when he went to the VA hospital in 1972, it was for headaches, and "they would not treat him," so he further withheld information until 2004. Such evidence further demonstrates that the Veteran did not in fact receive VA treatment, including for mental health complaints, at the Cleveland VAMC in1972, so no treatment records were in fact created, and there are no VA mental health treatment records to try to obtain. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim for an acquired psychiatric disorder. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran has been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claimed disabilities. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Paranoid schizophrenia is a psychosis listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to that disability. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis of Service Connection for Psychiatric Disorder The Veteran contends that his claimed psychiatric disorder is not due to combat experiences, but is due to mental abuse and racial discrimination suffered in service. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. The Board also finds that there is no objective evidence that the Veteran "engaged in combat with the enemy." For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of the evidence, the Board also finds that the evidence shows no in-service injury or disease, including no diagnosis of a psychiatric disorder in service, and that symptoms of a psychiatric disorder were not chronic in service. The Veteran's service records are negative for any complaints or treatment for a psychiatric disorder. The evidence in this case includes the November 1964 service separation examination report, which includes a summary of the Veteran's significant in-service medical history, including the Report of Medical History on which the Veteran checked the block to indicate "no depression or excessive worry." The November 1964 service separation examiner's review of the history is negative for any reports of symptoms of a psychiatric disorder. The November 1964 service separation clinical findings by the examiner revealed no psychiatric disorder symptoms. Neither the Veteran's history, separation examiner's summary of history, nor clinical examination at service separation reflect any reported history of psychiatric disorder in service, or complaints, treatment, or diagnosis of a psychiatric disorder either during service or at service separation in November 1964. The Board next finds that the weight of the evidence demonstrates that symptoms of a psychiatric disorder have not been continuous since service separation in November 1964. The Veteran first filed a claim for service connection for an acquired psychiatric disorder in March 2004, over 40 years after leaving service. The evidence shows that the Veteran's current psychiatric disorder first manifested many years after service in 2004, notably over 40 years after service discharge, when he was seen for help with cocaine and alcohol addiction. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In May 2004, the Veteran reported a history of alcohol and cocaine use, reporting that he began using cocaine in 2003, which was about 39 years after service separation in 1964. The Veteran reported that he decided to seek help for his drug/alcohol dependency, stating that the abuse was affecting his life and that he had increased anger and frustration. In August 2007, the Veteran was diagnosed with alcohol and cocaine dependence. As the statements regarding onset of post-service drug abuse and addiction beginning years after service separation were made to VA physicians in May 2004 and August 2007 during the course of treatment, they are afforded greater probative weight than those statements made in conjunction with the March 2004 claim for VA disability compensation benefits submitted by the Veteran contending that his symptoms either began in service or were aggravated during service. Such statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. In weighing credibility, which the Board finds to be the key issue in this case, 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, supra. The Board has also considered the statements of the Veteran's sister, attesting that the Veteran has a history of psychiatric symptoms since his service; however, the Board finds that the recent assertions of the Veteran's sister regarding a psychiatric disorder in service are not credible because her report is inconsistent with the more contemporaneous service treatment record evidence, including the Veteran's own reported histories and the findings during service, is inconsistent with the absence of complaints or treatment after service and the Veteran's own histories made for treatment purposes prior to filing his 2004 claim for VA compensation, and is inconsistent with the Veteran's own reported histories when seeking treatment in the intervening years. See Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). The Veteran made no claims of racism or mistreatment while he was in service, and there was no evidence of complaints of or treatment for psychiatric symptoms in service. Likewise, the Veteran testified that he did not seek treatment for psychiatric symptoms in 2002, and VA treatment records do not show such treatment until 2004. Prior to the 2004 claim for benefits, it is significant that the Veteran did not make any assertions of chronic psychiatric symptoms in service or continuous symptoms since service regarding the claimed psychiatric disorder, and he did not assert a link between his service and his symptoms or assert an in-service onset at that time. The Veteran's current assertions of racism and mistreatment in service are also extremely vague, entirely lacking in any indicia of reliability. In the context of no chronic symptoms seen in the service treatment records, negative post-service treatment records, negative post-service evidence of psychiatric symptoms until years after service, such vague assertions made pursuant to VA disability compensation first made years into the claim for service connection, are not credible. Lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Such evidence weighs against findings of chronic symptoms of an acquired psychiatric disorder in service or continuous symptoms since service. There is additionally no competent evidence of a relationship between the Veteran's current psychiatric disorders and his military service. For reasons explained below, the February 2013 private psychologist's opinion is based on several inaccurate factual assumptions that render the purported opinion of no probative value. The Board finds that the weight of the lay and medical evidence of record reflects that the Veteran's claimed acquired psychiatric disorder had post-service onset and is not related to the Veteran's active service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Medical evidence is not limited to that which is provided by doctors. Cox v. Nicholson, 20 Vet. App. 563 (2007). However, the probative value of a medical opinion is also based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). The Board notes, however, that the absence of claims file review does not necessarily render an examination inadequate or reduce the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008); Snuffer v. Gober, 10 Vet. App. 400 (1997). The weight of the competent evidence of record demonstrates that the Veteran's claimed acquired psychiatric disability of paranoid schizophrenia is not related to his service. The Board finds that the February 2013 psychological report by E. E. M., Ed. D. is of no probative value because it was based on an inaccurate factual history that included several inaccurate factual assumptions. The Veteran's assertions that he was drafted into service against his will while underage, forced to service under the wrong last name treatment, and ignored when he tried to correct the errors, are not substantiated by the evidence; there is no birth certificate showing a different name or birth date of record, and the Veteran's available service personnel records do not show that he raised any such complaints during his service. Similarly, the Veteran's assertions that he was subjected to racism and other mistreatment are unsubstantiated and inconsistent with the statements of the Veteran's sister, which, notably, do not mention that the Veteran reported any mistreatment (other than the deserved opprobrium because of his own actions of going AWOL) or racism. To the contrary, the sister's letter reflects that the Veteran's family encouraged him to return to military service. As indicated, the assertions of mistreatment and racism are vague and unsubstantiated, and are inconsistent with the evidence that is of record, which shows the Veteran's actions in going AWOL. The service personnel records and service treatment records do not demonstrate that he was subjected to adverse actions other than those taken in response to his own misconduct (such as going AWOL). The Board also points out that the Veteran has not provided specifics as to the nature of such racism and mistreatment so that his assertions could be assessed for factual plausibility. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). Similarly, the psychologist in February 2013 did not consider the Veteran's history of post-service onset of drug and alcohol abuse, which is a factual omission that further undermines any probative value of the purported opinion. For example, a May 2004 VA treatment record reported the Veteran sought treatment for cocaine and alcohol addiction, August 2007 records show a diagnosis of cocaine and alcohol dependence, and more recently an August 2010 VA treatment record notes the Veteran had a history of cannabis abuse and cocaine and alcohol dependence, for which he was receiving group counseling. Additionally, the February 2013 makes reference to in-service symptomatology, but as discussed earlier this recent history of symptoms in service is inconsistent with the more contemporaneous service treatment record evidence that demonstrates no related complaints or symptoms during service. Similarly, the private psychologist does not provide specificity as to the nature of such symptoms or otherwise provide a cogent rationale which links the Veteran's claimed acquired psychiatric disorder to his service. The private psychologist attempts to provide explanations for why there were no noted symptoms in service or for many years after service; however, such assumptions further support the fact of post-service onset of the Veteran's psychiatric disorder, and that he did not experience chronic in-service or continuous post-service psychiatric symptoms. The Board is not bound to accept medical opinions that are based on a history that is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for a psychiatric disorder, including for a psychosis of schizophrenia. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs