Citation Nr: 1315212 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 06-34 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and a schizoaffective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1979 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. This matter was previously before the Board in January 2010, April 2010, and August 2012 at which time it was remanded for additional development. It is now returned to the Board. 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). The Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence demonstrates that the Veteran has been diagnosed as having several acquired psychiatric disabilities other than PTSD, to include schizoaffective disorder, depression, alcohol abuse, and cocaine dependence. Thus, the claim of service connection for PTSD has been restated as shown on the title page of this decision. In accordance with Clemons, the Board finds that in any claim for service connection for a mental disorder the Board must consider any mental disorder that is reasonably raised by the record. 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. FINDINGS OF FACT 1. The Veteran refused to report for a VA examination to determine whether he had an acquired psychiatric disorder, to include PTSD and a schizoaffective disorder that was related to his military service. He was notified that he needed to report but refused to report for the examination. 2. The Veteran has a current diagnosis of PTSD. 3. The Veteran's PTSD cannot be attributed to his military service in the absence of corroborable in-service stressful experiences because the claimant did not engage in combat with the enemy and his stressors did not involve fear of hostile military or terrorist activity. 4. The claimed in-service stressful experiences have not been corroborated by service records, or by other credible supporting evidence, and the Veteran has not provided sufficient information for VA to attempt to independently corroborate any such in-service stressor event. 5. There is no competent medical evidence that an acquired psychiatric disorder, excluding PTSD, was manifested in service, or that a psychosis was manifested within one year thereafter; nor is there competent evidence that any currently diagnosed psychiatric disorder is causally or etiologically related to service in any way. 6. The Veteran is not shown to have an acquired psychiatric disorder, to include PTSD and a schizoaffective disorder as a result of his period of active service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, depression, and a schizoaffective disorder, was not incurred in or aggravated by active service, nor may a psychosis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 5103A, 5107(b) (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 Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA 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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in April 2005, March 2006, April 2010, and April 2011 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. A review of the claims file reflects that it was rebuilt by the RO in or about December 2004. When a claims file has been lost, there is a heightened duty to assist the claimant in developing the claim and to explain the decision thereon. Russo v. Brown, 9 Vet. App. 46 (1996); Ussery v. Brown, 8 Vet. App. 64 (1995). In addition, the Board observes that there are certain procedures which are to be followed when a claims file is lost, and in rebuilding it if it cannot be found. All attempts to secure the Veteran's service treatment records (STRs) were noted in the claims file. These included a May 2000 PIES request for service medical records. A response noted that the STRs had been sent in September 2000. Letters were sent to the Veteran in December 2004 and April 2005 asking him to submit any records in his possession. He did not respond. The RO requested that the Veteran provide more detail regarding his alleged stressors in several letters, as well as in examination interviews. He has provided vague statements to his therapists and examiners which have been submitted to the RO. The Veteran was unable to provide any corroborable stressor information. He only could state that he was incarcerated during service, saw sexual attacks on other men and witnessed the murder of his roommate by his wife who then committed suicide. He offered no further details as to names, dates, or places, and no additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in August 2011. The Board determined this examination to be inadequate and remanded the appeal in August 2012 to request an addendum opinion from the August 2011 VA examiner. Actions requested in the August 2012 remand have not been undertaken. These actions included providing a medical opinion as to whether the Veteran's diagnosed schizoaffective disorder may have been the result of a documented MVA in August 1983 during service. In addition the VA examiner who examined the Veteran in August 2011 was asked to reconcile her findings that the Veteran did not currently meet the criteria for PTSD. In a memorandum of contact dated in February 2013, it was noted by the VA examiner that the requested medical opinions could not be provided without a re-examination of the Veteran; however, he had refused to be examined at that location. In an attempt to reschedule the VA examination a December 2012 letter was sent to the Veteran. The Veteran did not respond to this letter. The most recent letters from the RO have been unanswered. The Veteran refused to cooperate with the testing required for his acquired psychiatric disability. Thus, no diagnoses or opinions could be rendered for his claim for service connection for an acquired psychiatric disability. The Veteran has not shown or otherwise alleged good cause for his failure to report to his VA examinations, or to respond to attempts to schedule them. A letter was sent to the Veteran in October 2012 at his last known address notifying him that the Appeals Management Center was developing additional evidence concerning his appeal and that his appeal was returned to the VAMC for a medical opinion. The letter was returned as undeliverable. The claims file demonstrates a history of unsuccessful attempts to contact the Veteran. VA has made adequate attempts to contact the Veteran at his most recent address and has made additional attempts to obtain forwarding information. Ultimately the Veteran bears the onus of updating his mailing address with the VA when he moves. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is a two-way street). Thus, because the Veteran refused to appear for a scheduled VA examination, and later failed to respond to the RO's efforts at again scheduling a VA examination for him, the Board finds that the claim may be decided based on the medical evidence of record. 38 C.F.R. § 3.655 (2012); Kowalski v. Nicholson, 19 Vet.App. 171, 178 (2005). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). For the showing of chronic disease in service, such as a psychosis, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain chronic diseases, such as psychoses, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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. Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, then the requirement for corroborating the stressor is eliminated. 38 C.F.R. § 3.304(f) (a) (as amended 75 Fed. Reg. 39843 (effective July 12, 2010)). The evidence does not support a finding that the Veteran participated in combat during active service. With regard to the question of whether the Veteran engaged in combat, the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a Veteran has participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Mere service in a combat area or combat zone does not in itself lead to the conclusion that an individual engaged in combat. VAOPGCPREC 12-99 (October 18, 1999). Background The Veteran alleges that he has an acquired psychiatric disorder, described as PTSD, as a result of being incarcerated during service. He stated that, while he was in jail, he was exposed to violence and assaults on other men; he witnessed the murder of his roommate by his wife who then committed suicide; and, he developed an acquired psychiatric disorder in part as the result of an in-service motor vehicle accident. As noted in the introduction the service treatment records are not available. In December 2011, the Veteran submitted a service treatment record dated in August 1983 which notes treatment from a motor vehicle accident (MVA). Service personnel records reveal that the Veteran was convicted of shoplifting and sentenced to a period of civilian confinement in the Thomasville State Prison, Georgia. Subsequent to discharge from prison he was separated from service. There are extensive VAMC treatment records from approximately 2000 to the present time. These indicate treatment for chronic homelessness, alcohol abuse, cocaine dependence, depression, schizoaffective disorder, and PTSD. In April 2011 VAMC psychological screening test, the Veteran was not to exhibit moderately severe symptoms of depression as well as PTSD as a result of childhood sexual trauma. He was currently incarcerated but was applying to be admitted into a VA drug treatment program so as to be released early from prison. A private record received in May 2005 from Steve A. Castellon, Ph.D., noted the Veteran had evidence of emotional numbing and hyper arousal consistent with a diagnosis of PTSD. He noted that the Veteran did not have a history of psychiatric hospitalization. He indicated, however, that the Veteran reported that while he was in prison, he thought he was treated and diagnosed as having "PTSD and poly something and depression." It was noted that he was currently enrolled in a program for "patients with psychotic disorders and substance use disorders." He noted the Veteran had a very spotty occupational history often as a result of psychiatric and substance problems. He had multiple stints in jail, almost always drug related. The diagnosis was PTSD chronic; mood disorder, NOS; and cocaine dependence. In a May 2005 stressor statement the Veteran reported as a stressor a motor vehicle accident in service. The vehicle reportedly turned over. He stated that the accident was investigated and that they made him pay for the vehicle. The Veteran noted that he went to prison in the military for "something I didn't do." While in prison, he stated, he saw fights and sex acts done to others. He reported that he saw his roommate's ex-wife shoot him and then turn the gun on herself. In an August 2011 VA examination, the VA examiner noted the Veteran's reported incarceration for misconduct and subsequent psychiatric symptomatology. After examination of the Veteran, review of his claims folder, and consideration of the Veteran's medical history to include the in-service incarceration, the VA examiner diagnosed schizoaffective disorder, depressive type; and cocaine dependence, in early sustained remission. The examiner noted that the Veteran had been incarcerated from October 2010 until August 2011 and sustained remission was a result of his controlled environment. The examiner noted that the Veteran did not meet the criteria for a diagnosis of PTSD. His current symptomatology was all attributed to a schizoaffective disorder as he had not used crack cocaine in over 10 months. In addition, the examiner found no evidence of traumatic brain injury. After a review of extensive treatment records from the VAMC, the examiner concluded that "it is less likely than not that the [V]eteran's diagnosed psychiatric disorder is related causally to his military service." The VA examiner's rationale was based on her finding that the Veteran did not receive any mental health treatment in service. The Veteran began abusing crack cocaine following service. By his report he began having auditory hallucinations in 2006. It was likely that he experienced symptoms of depression prior to having auditory hallucinations. Based on an interview with the Veteran, the examiner diagnosed schizoaffective disorder and cocaine abuse in early sustained remission. She noted that despite the fact that he experienced his military discharge as humiliation, there was no clear indication that symptoms of depression or other mental disorders were present during military service. The Board remanded the claim in August 2012 to request the August 2011 VA examiner to provide an opinion as to whether the Veteran's diagnosed schizoaffective disorder was related to the documented in-service motor vehicle injury as the Veteran currently contends. Moreover, the Board observed that the VA examiner declined to diagnose PTSD. Notably, the Board observed that a VA mental health examination conducted in January 2005 documented a diagnosis of PTSD which appeared to be based in part on the Veteran's reported stressor. Although the VA examiner addressed the findings of a VA mental health examination dated in April 2005 noting a diagnosis of PTSD, she did not address the January 2005 diagnosis of PTSD when indicating that the Veteran does not currently suffer from PTSD. In a telephone contact memorandum in February 2013, the examiner noted that she could not provide the requested opinion without first reevaluating the Veteran. The RO was informed that the Veteran refused an examination at that location. Further a letter was sent to the Veteran in December 2012 to attempt to schedule an examination. The Veteran did not respond to the letter. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder including PTSD, depression, and a schizoaffective disorder. As noted in the introduction, the service treatment records are unavailable and a formal finding was made by the RO to this effect in April 2005. The personnel records do contain evidence of a motor vehicle accident during service in which the Veteran was injured. The Veteran's service records reflect that he did not serve during a period of war. The records reveal extensive disciplinary actions taken. It also includes a civilian court sentence for shoplifting, incarceration, and his subsequent discharge from service. The records contain extensive and duplicate private and VA medical treatment records from approximately 2000 to the present time. The Veteran has asserted that he has PTSD that is related to vague descriptions of several traumatic events during service including his incarceration (arrest and conviction by a civilian court for shoplifting); witnessing sexual assaults on other men in prison; and witnessing his roommate being murdered by his ex-wife who then committed suicide. He did not give any details about the alleged events. He failed to submit any verifiable stressor information after numerous requests for stressor information. As the Veteran did not engaged in combat, his unsupported assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory requirement for "credible supporting evidence" means that "the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). Without a verifiable in-service stressor, service connection may not be granted for PTSD. Therefore, after thorough review and consideration of the evidence of record, the Board finds that a preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Regarding the issue of service connection for an acquired psychiatric disorder, other than PTSD, the Board acknowledges again that the service treatment records are entirely silent as to any acquired psychiatric disorder. Likewise, although the VA attempted to schedule the Veteran for a VA examination regarding his acquired psychiatric disorders, he refused to be examined or to respond to VA's attempts to schedule him for examination. There are no records of any treatment for any acquired psychiatric disorder post service until approximately 2000 or 14 years after separation from service. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board acknowledges that the Veteran currently is diagnosed as having various acquired psychiatric disorders. None of the Veteran's post-service VA and private treating physicians has related any acquired psychiatric disorders to active service or any incident of service. The Board has weighed the Veteran's statements as to his having had symptoms since service and finds his current recollections and statements made in connection with this claim for VA compensation benefits to be of lesser probative value than the contemporaneous findings, and the absence of complaints or treatment for many years after service. It is especially probative that none of the Veteran's treating physicians have provided nexus opinions relating any diagnosis of an acquired psychiatric disorder to the Veteran's period of service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of service connection. The Board has considered the Veteran's own contentions with regard to his belief that his current acquired psychiatric disorder is etiologically related to his active service. Some disabilities are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, the Veteran is not competent to offer an opinion that requires specialized training, such as the clinical etiology of a medical disorder. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Jandreau, 492 F. 3d at 1372. The Board finds that the Veteran is competent to present testimony regarding the details of his service and his recollections concerning his symptoms. He is not competent, however, to establish a specialized medical determination such as the specific etiology of his various acquired psychiatric disorders first diagnosed approximately in 2000. Additionally, there is no evidence of symptoms of a psychosis within one year of service. The first evidence of any treatment for any acquired psychiatric disorder was in a 2000 VAMC treatment program application, which is 14 years after service. Therefore, the Board finds that the Veteran did not manifest a psychosis to a compensable degree within one year of active service, and service connection is not warranted on a presumptive basis. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Thus, on the basis of all the evidence of record, the Board finds that the most probative evidence demonstrates that the Veteran's acquired psychiatric disorders, other than PTSD, are not attributable to his active service. Even considering the Veteran's lay statements with regard to the matters he is competent to address, the most probative evidence weighs against the claim. Again, the Veteran was afforded the opportunity of a second VA examination to address this contention, but he refused to report for the examination and did not respond to VA's attempt to reschedule the examination. His claim must therefore be rated on the evidence of record, which fails to establish any relationship between the Veteran's current acquired psychiatric disorder and service. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 49. ORDER Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and a schizoaffective disorder is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs