Citation Nr: 1315730 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-12 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a psychiatric disorder (to include adjustment disorder, depressive disorder, amnestic disorder, anxiety and posttraumatic stress disorder (PTSD)). 2. Entitlement to service connection for a psychiatric disorder (to include adjustment disorder, depressive disorder, amnestic disorder, anxiety and posttraumatic stress disorder (PTSD)). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from April 1958 to February 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Board denied service connection for a psychiatric disorder in a February 2003 decision. The Veteran did not appeal that decision nor has he requested reconsideration of that decision. 2. Some of the new evidence submitted subsequent to February 2003 in support of the Veteran's claim for service connection for a psychiatric disorder is material. 3. The Veteran's current psychiatric disorder, which has been related to his original undesirable discharge from active military service, is the result of his own willful misconduct and, therefore, is not considered to have been incurred or aggravated in the line of duty. CONCLUSIONS OF LAW 1. The February 2003 Board decision that denied the service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012).- 2. New and material evidence has been received, and the Veteran's claim for service connection for a psychiatric disorder is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. A psychiatric disorder was not incurred in or aggravated in the line of duty during service. 38 U.S.C.A. §§ 105, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.01, 3.102, 3.159, 3.301, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case or Supplemental Statement of the Case. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a new and material evidence claim, the notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to substantiate the underlying claim of service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, VA satisfied its duty to notify by means of letters dated in March 2007, April 2007, May 2007 and October 2007 from the RO to the Veteran, which were issued prior to the RO decision issued in December 2007. These letters informed the Veteran of what evidence was required to substantiate the underlying claim for service connection, and of the Veteran's and VA's respective duties for obtaining evidence. The letters also explained the criteria for new and material evidence and set forth the basis of the last final denial and the evidence needed to be submitted, as required under Kent. The Board finds, therefore, that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional information and evidence, and he has done so evidencing his actual knowledge of the need to submit information and evidence to support his claim. All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. Generally the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. When a claim is one to reopen a finally decided claim, however, VA is not obligated to provide a medical examination or obtain a medical opinion until new and material evidence has been received. See 38 C.F.R. § 3.159(c)(4)(iii). In the present case, VA examination was provided to the Veteran in July 2007. Accordingly, the Board finds that VA has satisfied its duties to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding the questions addressed herein for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Claim to Reopen In February 2003, the Board denied the Veteran's claim for service connection for a psychiatric disorder. This decision became final on the date it was issued (i.e., on February 23, 2007). The Veteran has not appealed it to the Court of Appeals for Veterans Claims (Court) and the Chairman of the Board has not ordered reconsideration of this decision to date. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. The Board's decision is, therefore, final. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). With claims to reopen filed on or after August 29, 2001, such as this one, "new" evidence is defined as evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final rating decision, February 2003 in the present case, is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In addition, the Court has held that, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. New evidence received since February 2003 consists of the Veteran's statements, VA treatment records, and the report of a July 2007 VA examination. The Veteran submitted a statement in February 2007 in which he set forth events from service that he had not previously provided, including incidents during service where he says he was mistreated or unfairly punished by those higher in rank. He stated that this treatment was so severe that he got to a point where he was not going to take it anymore. He also described the events that surrounded his undesirable discharge from service. He stated that his undesirable discharge from service has been like a "rock on his head" since then and that it prevented him from obtaining employment when he first got out of service. The Veteran made other statements to the extent that he was depressed in service, that authority figures did not accept him due to his physical size (6 feet, 6 inches tall) and so he was always singled out "as an example of how the 'big' man could be taken down," and that he was always punished even though others did the same thing without any negative results. VA treatment records show the Veteran now has a diagnosis of PTSD, dysthymic disorder (dysthymia) and/or dysphoria. Previous treatment records considered showed diagnoses of adjustment disorder, dysthymic disorder and amnestic disorder. Furthermore, as a result of the VA examination conducted in July 2007, the Veteran was diagnosed to have PTSD due to traumatic events during his military service and dysthymia. The examiner opined that the Veteran's current psychiatric disorders of PTSD and dysthymia are caused by his other than honorable discharge conditions from service. The Board finds that the above evidence is new in that it was not previously of record. Furthermore, this evidence is material in that it relates to events that were incurred in service, as well as indicates a causal link between the Veteran's current psychiatric disorders and his military service. Consequently, the Board finds that new and material evidence has been submitted that is sufficient to reopen the Veteran's claim for service connection for a psychiatric disorder. The Board notes that the RO reopened the Veteran's claim based upon the above evidence of record. Consequently, the prejudice safeguards set forth in Bernard v. Brown, 4 Vet. App. 384 (1993), do not come into play in the present case. As there are no due process considerations and the record is adequate for adjudication purposes, the Board finds that it may proceed to adjudicate the merits of the Veteran's claim. III. Service Connection for Psychiatric Disorder Service connection means that the facts 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. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that 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 v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Initially, the Board notes that the Veteran has been diagnosed over the years to have various psychiatric diagnoses to include adjustment disorder, dysthymic disorder, major depressive disorder, amnestic disorder, dysphoria, and PTSD. None of these disorders are considered psychotic disorders under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.384. Consequently, direct service connection pursuant to 38 C.F.R. § 3.303(b) and presumptive service connection pursuant to 38 C.F.R. § 3.307(a) and 3.309(a) are not warranted. Thus, entitlement to service connection can only be established under the provisions of 38 C.F.R. § 3.303(a). As previously indicated, the Board denied service connection for a psychiatric disorder in a February 2003 decision. At that time, the Veteran essentially argued that his disciplinary and performance problems during service were indicative of a mental problem such as depression, even if a psychiatric disorder was not medically recognized or diagnosed until many years after service. In his present claim, the Veteran asserts that his present psychiatric problems arise from his undesirable discharge from service and the circumstances leading up to it (i.e., mistreatment during service). The Veteran served on active duty in the Marine Corps from April 1958 to February 1960. His service medical records show no complaints of, treatment for or a diagnosis of an acquired psychiatric disorder, and the February 1960 service separation examination did not note any finding of a psychiatric abnormality. Post-service, there are no medical records of psychiatric problems for many years after service. The earliest medical evidence that the Veteran had any psychiatric problem is from 1990. Beginning in 1990, private treatment records note that the Veteran was having problems with irritability, difficulties sleeping, loss of interest in activities and seeming tired all the time. It was thought he had mild depression, and he was started on Prozac. It does not appear, however, that he received any psychotherapy at that time. Subsequent private treatment records noted his continued use of Prozac. (See e.g., private treatment records from March 1991, April 1992 and November 1993.) In February 1998, the Veteran was hospitalized for approximately five weeks at a VA facility after an incident at work in which he had a physical altercation with two of his supervisors. He had worked at the company as a warehouseman for about 15 years, and because of the incident he lost his job and assault charges were pending. He reported he did not remember hitting his supervisors. A history of temper dyscontrol was noted. The Veteran reported that he had been treated with Prozac for three years but had no other psychiatric treatment. During this VA hospitalization, the Veteran received psychiatric treatment, and final diagnoses included adjustment disorder with mixed disturbance of conduct and emotions, depressive disorder, and amnestic disorder. In June 1998, the Veteran was awarded Social Security Administration (SSA) disability benefits. The SSA found that the disabilities entitling him to such benefits were a mood disorder and a personality disorder. It was noted the Veteran last worked and became disabled in February 1998. A June 1998 SSA psychiatric evaluation led to diagnoses of major depression (single episode) and a personality disorder. At this evaluation, the Veteran dated the onset of his psychiatric problems to be in approximately 1990. He reported the physical altercation at work in February 1998 with subsequent loss of his employment and hospitalization at VA. Although the Veteran described several previous fights while in service, he did not indicate having any depressive or anxiety symptoms while in service or until many years after service. The Veteran was again hospitalized in June and September of 1998 for depression with suicidal ideation. It was noted that he was not able to obtain outpatient psychiatric follow up due to the loss of medical insurance. Discharge diagnosis at that time was dysthymic disorder. Thereafter, the Veteran received mental health treatment at the VA Medical Center in Ashville, North Carolina. In April 2001, the Veteran was again hospitalized for treatment of major depression with suicidal ideation with plan. He endorsed symptoms of three weeks duration of worsening insomnia, low mood, anhedonia, tearfulness, feelings of guilt and suicidality (intermittent). He also endorsed chronic PTSD symptoms of hyper-vigilance, arousal startle, numbing, and re-experiencing via intrusive thoughts of past maltreatment (beatings by father) and adolescent maltreatment (beatings while in the marines at age 17), and adult difficulties with affect regulation and anger management. Discharge diagnoses included major depressive disorder and organic brain syndrome, and rule out anxiety disorder with depressed mood and PTSD. Subsequent VA treatment records show a diagnosis of dysthymic disorder (dysthymia) and an intermittent diagnosis of PTSD. The most current treatment records from 2009 show the Veteran's psychiatric disorder has been diagnosed as recurrent dysphoria. In February 2007, the Veteran filed a claim for service connection for non-combat related PTSD. At that time, the Veteran submitted a statement in which he set forth events that occurred during his service that he stated demonstrate that he was singled out for special unfavorable treatment. He also describes the events surrounding his original undesirable discharge from service. In May 2007, the Veteran submitted a statement in which he requested that his claim for non-combat related PTSD be canceled and changed to anxiety-depression caused by the stressful incident leading to his release from service under less than honorable conditions. He stated that his release from service under other than honorable conditions put him in a very bad situation in his community, with his family and in trying to locate employment. The Veteran underwent VA examination in July 2007. He reported serving in the Marines aboard the USS Saratoga and being stationed in the Mediterranean during his entire term of service. He was discharged under less than honorable conditions, but in 1977 this was changed to under honorable conditions. The Veteran reported that he had been having difficulties with anxiety and depression ever since this discharge situation. He stated that he had wanted to make the Marine Corps his career; however, he had difficulties. He reported he often felt belittled and put down by his superiors. He stated he was made to do extra chores that were demeaning. He stated that authority figures did not respect him due to his physical size, that he was singled out as an example of how the "big man" could be punished. He related he felt that he was punished while others were let off. He also reported seeing other soldiers being abused. He stated he was told he was an embarrassment to the Marine Corps. He reported that one time he rebelled when he was told to get up in the middle of the night and get dressed. He also stated he received a summary court martial, and that this incident occurred when he and his fellow Marines were coming back to the ship. He related that they were acting like they were fighting, but he was charged with fighting and resisting arrest and received 30 days in the brig. He also reported that, in 1959, he received a head injury which occurred during a big barroom brawl with Marines and soldiers during which he was hit by a heavy object. He stated that the whole group of Marines was apparently arrested. He reported being very traumatized by the conditions of his discharge. He left in tears when he was told that he was discharged under less than honorable conditions. He felt that this discharge took his life and he has had problems with depression and anxiety ever since. He reported he has been bitter about the situation and felt worthless, hopeless and ashamed. He stated he had never felt so little in his life than when he was discharged. He kept fighting for appeal and finally in March 1977 his discharge was changed to "under honorable conditions." He stated that this helped; however, he still cannot get over the situation. Rather, he has over the years had ongoing problems with depression, feeling worthless, hopeless, and ashamed. He has had ongoing intrusive memories of the conditions of his discharge and continued to be focused on getting the situation corrected. He related he has had nightmares of being in the military. He has felt that his future was destroyed by the discharge conditions. He had difficulty sleeping and had been hypervigilant. Any time he would apply for jobs, he was always worrying about his discharge being found out. He reported difficulties concentrating, temper problems, and tolerating any stress. Based upon the Veteran's reported history, a review of some of the records in the claims file, and a mental status examination, the examiner diagnosed the Veteran to have PTSD on the basis that he was exposed to traumatic events during his military service involving threat to physical integrity of self and responses of intense helplessness. Subsequent symptoms include recurrent intrusive memories, nightmares, markedly diminished participation in activities, feelings of detachment, sense of foreshortened future, insomnia, irritability and anger, difficulty concentrating and hypervigilance. She also diagnosed him to have dysthymia characterized by chronic depression, feelings of worthlessness, helplessness, poor concentration, thoughts of death, insomnia and fatigue. In responding to the question of whether the Veteran's current mental conditions which he claims as anxiety and depression are caused by his other than honorable discharge from the service, the examiner answered, "Yes." She stated that the Veteran's current conditions of anxiety and depression which are diagnosed as PTSD and dysthymia are caused by his other than honorable conditions discharge from the service. Her reasoning was that the Veteran's report and medical records from the Asheville VA indicated that his mental symptoms developed as a result of his discharge conditions. Notwithstanding the positive medical opinion provided by the July 2007 VA examiner, the Board finds that service connection for the Veteran's current psychiatric disorders is not warranted based upon the theory that they are due to his less than honorable conditions discharge from service because such discharge was the result of the Veteran's willful misconduct. Consequently, his psychiatric disabilities cannot be determined to have been in the line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. 38 C.F.R. § 3.1(n). It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probably consequences. 38 C.F.R. § 3.1(n)(1). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(3). In the present case, the Veteran's service records demonstrate he entered into active duty on April 7, 1958. On June 30, 1958, the Veteran was awarded a waiver of the presumption of fraudulent entry for his failure to reveal at the time of his enlistment that he had been arrested in January 1958 for felonious assault. A Police Record Check indicates the Veteran was charged with felonious assault on January 17, 1958, but that the charge was reduced to disorderly conduct and he was fined $59.25. The Veteran underwent basic recruit training, infantry combat training and Sea School/Sea Pool training until March 4, 1959. On March 5, 1959, he reported for duty on the USS Saratoga. On April 10, 1959, the Veteran received a nonjudicial punishment (NJP) of three month suspended reduction in rank by the commanding officer for violation of Article 105 of the Uniform Code of Military Justice (UCMJ). On April 19, 1959, the Veteran again received a NJP for violation of Article 92 of the UCMJ (Failure to Obey Order of Regulation) and was awarded seven days confinement. On April 30, 1959, the Veteran received a third NJP for violation of Article 91 of the UCMJ (Insubordinate Conduct Toward a Warrant Officer, Noncommissioned Officer, or Petty Officer) and was again awarded seven days in confinement. On July 18, 1959, the Veteran received a fourth NJP for again violating Article 92 of the UCMJ. At this time, his punishment was a reduction in rank to Private. On December 3, 1959, the Veteran received a fifth NJP for again violating Article 91 and also violating Article 117 (Provoking Speeches or Gestures) of the UCMJ and was awarded three days of confinement on bread and water. On January 9, 1960, the Veteran underwent a Summary Court Martial. The memorandum of this indicates the Veteran was charged with two offenses. The first was for violation of Article 116 of the UCMJ (Riot or Breach of Peace) in that, at the Fleet Landing, Cannes, France, on or about 0030 hours, December 26, 1959, he participated in a breach of peace by wrongfully engaging in a fist fight with Private V.P.B. The second offense was for violation of Article 128 (Assault) in that, on or about 0115 hours, December 26, 1959, he unlawfully struck an Airman, U.S. Navy, in the head and body with his fists and by kicking him in the ribs with his feet. He was found guilty of each charge, except for the part of the second charge stating that he kicked the Airman in the ribs with his feet. He was sentenced to confinement for a period of 30 days. His records show, however, that he was actually only confined for 25 days. On January 5, 1960, the Veteran's commanding officer recommended the Veteran be administratively discharged in accordance with paragraphs 10277.2b and 10277.3 of the Marine Corps Manual. The basis for the recommendation was the Veteran's frequent involvement in situations that reflected unfavorably on the Marine Corps, both ashore and afloat and that he had to be continually admonished for minor infractions of regulations by both officers and non-commissioned officers. In addition, he had been awarded a Summary Court-Martial for fighting, resisting arrest, and assault. On January 15, 1960, a discharge by reason of unfitness in accordance with paragraph 10227.2b of the Marine Corps Manual was approved. The Veteran was discharged on February 18, 1960. His original DD 214 demonstrates his character of discharge was "Conditions Other Than Honorable." The Veteran's records shows that he almost immediately sought review of his discharge by the Navy Discharge Review Board. The Review of Discharge form of record demonstrates that the Veteran requested an Honorable discharge. He maintained that "he was young, inexperienced and states that his trouble was due to his drinking, fighting, and disobeying orders." After reviewing the Veteran's service, including the offenses listed above, the Review Board determined that the Veteran's service record shows that he had committed numerous offenses, one necessitating trial by court-martial, and had thereby, in the opinion of his commanding officer, proved himself unfit for retention in the naval service. Thus, it was the decision of the Board that the character of the discharge originally issued was proper and that no change, correction, or modification be made in the Undesirable Discharge. The review having been performed in November 1961 was approved by the Director, Navy Council of Personnel Boards in January 1962. In 1977, the Veteran again sought an upgrade of the character of his discharge. By decision issued in March 1977, the Board of Correction of Naval Records issued a decision finding that corrective action was warranted and that the awarding of an undesirable discharge was overly harsh and severe. It therefore corrected the Veteran's naval record to show that, on February 18, 1960, the Veteran was issued a general discharge (i.e., other than honorable), by reason of misconduct, versus the undesirable discharge actually issued on that date. Initially, the Board notes that, because of the upgrade of the Veteran's discharge from conditions other than honorable to under honorable conditions in 1977, his discharge is not a total bar to receipt of VA benefits. See Administrative Decision dated in March 1982. Based upon these records, however, the Board finds that the evidence is clear that the Veteran's discharge, despite the upgrade, was still the result of willful misconduct. The Veteran had five NJPs from April to December of 1959, three of which were in April alone. Furthermore, significantly, the first NJP was after only five weeks of the Veteran's assignment to the USS Saratoga, much earlier than the Veteran appears to indicate. Furthermore, four of these NJPs were clearly for willful misconduct in that they were for violations of Articles 91 and 92 of the UCMJ. In other words, they were for disobeying an order or regulation and for insubordination. In addition, three of these NJPs resulted in punishment involving confinement, which indicates the seriousness of the offense. See Article 15, Subsection (b)(2) of the UCMJ. Finally, the Veteran was court-martialed for the last offenses involving a breach of peach for getting into a fist fight and for assault for hitting with his fists an Airman (which also appears to have involved resisting arrest). It was not until these last offenses, which occurred at the end of December 1959, that the Veteran's commanding officer sought to have him administratively discharged because of his misconduct. The Board acknowledges the Veteran has submitted statements in conjunction with his current claim with regard to him being mistreated and singled out for unnecessary punishment while aboard the USS Saratoga. It appears by making such statements that the Veteran seeks to mitigate or excuse his misconduct in service because of this alleged mistreatment. The Board is not persuaded for the following reasons. First, the Board notes that the Veteran stated that his non-commissioned officers (NCOs) got to sending their shoes to him by another marine for him to shine them and he admitted that he would send word back "to polish their own dam (sic) shoes;" or they would send him their coffee cups to clean, and he would refuse. (See page 3 of his February 2007 statement.) He even admitted that "I got to a point where I wasn't going to take it anymore." (See page 4 of his February 2007 statement.) Thus, by his own words, the Veteran admits to willful misconduct in service (i.e., insubordination and disobeying orders). Secondly, the Veteran's current statements as to the what happened in service and seemingly the reasons for his behavior in service are inconsistent with the statement he made within a year after his discharge in an attempt to upgrade his character of discharge. In 1961, before the Navy Discharge Review Board, the Veteran excused his in-service misconduct on the ground that he was "young, inexperienced" and that "his trouble was due to his drinking, fighting, and disobeying orders." This statement demonstrates that the Veteran admitted to willful misconduct (i.e., fighting and disobeying orders). The Board finds the 1961 statement to carry more probative weight than his current statements because it is more contemporaneous to the events that occurred during the Veteran's service and led to his undesirable discharge. In contrast, his current statements were made 37 plus years later and in conjunction with him seeking monetary benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (The Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Thirdly, the Board finds the Veteran's attempt statements are an attempt to mitigate or excuse his misconduct in service at this time; however, there is no indication that the Veteran appealed any of the NJPs or the Summary Court-Martial he received while in service despite his right to do so. Article 15, Subsection (e), of the UCMJ provides that "[a] person punished under this article who considers his punishment unjust or disproportionate to the offense may, through proper channels, appeal to the next superior authority." Moreover the Veteran has not stated that he appealed any of the NJPs he received or the Summary Court-Martial. Nor has he stated that he reported any mistreatment by his NCOs to his commanding officer or any higher officer. He has only stated that he spoke with his commanding officer only about two incidents - one that was not directly related to him (the beating up of a fellow marine by an NCO) or another that was not only directed at him (NCO tore up clothing the Veteran and others left on their bunks during a call to Honor Guard). Clearly the most pertinent time to have raised any mitigating circumstances would have been at the time he was in service, not almost 40 years later. His silence when he had a right to speak is negative evidence against his present claim. Furthermore, the Veteran made no mention of any mistreatment or unfair punishment in service in conjunction with his previous claim for service connection, which was denied by the Board in February 2003. The Veteran's silence, while otherwise actively seeking compensation, is negative evidence against his present claim. In addition, the Veteran claims that his Record of Service, which shows his conduct and proficiency evaluations, demonstrates how he was treated. He points to the July 1959 reduction in his evaluations scores to support this contention. The Record of Service shows that the Veteran was started serving aboard the USS Saratoga on March 5, 1959. Prior to that time, the Veteran was essentially in training at various facilities. His evaluation scores for conduct and proficiency prior to March 1959 were 3.3 or higher. The first evaluation after the Veteran was aboard the USS Saratoga was conducted on July 31, 1959, and his scores were 1.0 for conduct and 1.9 for proficiency. Despite the Veteran's argument, however, the Board notes that by the time of this evaluation the Veteran already had four NJPs against him - his last one just on July 18th for violating Article 92 (disobeying an order or regulation) again. Consequently, the Board does not agree with the Veteran that the reduction in his evaluation scores demonstrates the way he was treated but rather is a reflection of his persistent misconduct for which he had received four NJPs. Furthermore, unlike the Veteran's claim that his behavioral problems began once he went aboard the USS Saratoga, the service records demonstrate that he had behavioral problems before he even entered service. The service records clearly demonstrate that a background check of the Veteran showed that he was arrested in January 1958 (just three months prior to his entry into active duty) for felonious assault. Furthermore, he failed to report such arrest on his enlistment application although required to do so and despite signing a statement indicating that he had been cautioned to answer truthfully and that any false statement detected subsequent to enlistment will be processed as a fraud against the Government and may result in his discharge under other than honorable conditions. He was give a waiver of the presumption of fraudulent entry most likely because the charge of felonious assault was plead down to disorderly conduct (i.e., from a felony to a misdemeanor). However, this evidence shows that the Veteran had a history of violent behavior prior to entering into service, and a history of dishonesty. Finally, the Board finds that the Veteran's report at the July 2007 VA examination as to the events surrounding the incidents that led to the summary court-martial in January 1960 are not consistent with the evidence of what happened in the service records. At the VA examination, the Veteran reported that he and his fellow Marines were coming back to the ship and were acting like they were fighting. For this, he was arrested and received 30 days in the brig. The report of the summary court-martial shows that, on December 26, 1959, the Veteran wrongfully engaged in a fist fight with another Private at 0030 hours (for which he was charged with breach of peace) and that he unlawfully struck an Airman in the head and body with his fists at 0115 hours (45 minutes later) for which he was charged with assault. The commanding officer's recommendation for administrative discharge indicates the Veteran was pending charges for "fighting, resisting arrest and assault." The Veteran himself has stated that he was charged with resisting arrest. As the report of the summary court-martial does not specifically state a charge of resisting arrest, the Board can only conclude that the assault on the Airman that occurred at 0115 hours was when the Veteran resisted arrest. The Board does not find the Veteran's report to the VA examiner to make sense when considering it in light of the contemporaneous service records. First, the Veteran has never indicated that anyone else was arrested and punished for this play fighting. The Board questions why the entire group was not arrested and charged like the Veteran because he has not reported that anyone else from the group was disciplined. Also, the Board does not understand why, if they were just play fighting, the Veteran did not raise that as a defense against the summary court-martial and that the charge against him was not dismissed or reduced. More importantly, why did he not appeal the summary court-martial based upon that mitigating factor. In addition, if he was arrested for play fighting while coming on board the ship at 0030, then the Board questions why was he was not arrested until 45 minutes later. Based upon the Veteran's report of the incident, it would seem that his arrest would have been made at the time that the play fight was taking place. Finally, if the Veteran was only play fighting, then it seems unlikely that he would have resisted arrest and assaulted the arresting Airman. Based upon the foregoing, the Board finds that the Veteran's current report of being the recipient of mistreatment and unfair punishment in service lacks probative value to support his claim. Moreover, the Board does not find, at this time, his statements to be sufficient to mitigate or excuse his misconduct in service given that he did not raise those arguments at the time. Rather the Board finds the service records (to include the post service reports of the discharge review boards), which were made more contemporaneous to his service, to be the more probative and persuasive evidence as to whether the Veteran's conduct in service constituted willful misconduct. Those records clearly show the Veteran had a pattern of willful misconduct in that he had multiple violations of Articles 91 and 92 of the UCMJ and also underwent a Summary Court-Martial for fighting, resisting arrest and assault. In addition, although the Veteran's character of discharge was upgraded in 1977, the decision of the Board of Corrections of Naval Records clearly indicates that the Veteran's discharge was still a result of his misconduct. Consequently, notwithstanding the Veteran's statements and the positive opinion given by the VA examiner relating his current psychiatric disorders to his original undesirable discharge from service, the Board finds that the preponderance of the evidence establishes that the Veteran's discharge was a result of his own willful misconduct in service. Hence, service connection for the Veteran's current psychiatric disorders is not warranted because they are the result of his willful misconduct in service that led to his original undesirable discharge from service. Therefore, his current psychiatric disorders cannot be found to have been incurred in the line of duty. See 38 C.F.R. § 3.301. Finally, the Board notes that the evidence fails to demonstrate that the Veteran's current psychiatric disorders are otherwise related to his active military service. Although the Veteran has made statements to the affect that he was depressed in service due to the mistreatment he received, the evidence demonstrates that the Veteran had no treatment for any type of psychiatric disorder in service or for many years after service. In fact, he received no treatment until 1990, 30 years after his discharge from service, and then that was only for "mild depression." He was placed on an anti-depressant but otherwise had no other psychiatric treatment for this. Furthermore, there was no report in the medical records of any symptoms being related to his treatment in service until his hospitalization in 2001. (The Board acknowledges that at the SSA psychiatric evaluation in June 1998, the Veteran reported having been beaten in service at the age of 17; however, there is no evidence of record to support such a contention and the Veteran has never made that allegation directly to VA in support of his claim.) Consequently, the veteran's allegations as to continuity of symptomatology, standing alone, are not plausible in light of the absence of continuous symptomatology in the medical evidence of record. See McManaway v. West, 13 Vet. App. 60, 66-67 (1999). Service incurrence may also be rebutted by the absence of medical treatment for the claimed condition for many years after service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000). Based upon the foregoing, the Board finds that the preponderance of the evidence is against finding that service connection for a psychiatric disorder is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a psychiatric disorder (to include adjustment disorder, depressive disorder, amnestic disorder, anxiety and posttraumatic stress disorder (PTSD)) is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs