Citation Nr: 1317998 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 06-00 400A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression and anxiety. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and J.H. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from January 1973 to October 1973, and from November 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois (RO). FINDING OF FACT The Veteran's currently diagnosed psychiatric disorders, to include depression and anxiety, were not manifested during her military service and are not otherwise attributable to her military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disorder, to include depression and anxiety, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 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 RO's October 2004 letter advised the Veteran of the elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In March 2006, a letter provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. 473 (2006). Accordingly, with these letters, the RO effectively satisfied the notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. Records from the Social Security Administration have also been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided the Veteran with VA examinations to determine the etiology of her psychiatric disorders. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The October 2012 opinion was adequate, as it was based upon a complete review of the evidence of record, and consideration of the Veteran's lay statements. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board finds that there has been substantial compliance with its October 2012 remand as the RO provided an adequate VA opinion. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. In general, a Veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The medical evidence of record also shows current diagnoses of posttraumatic stress disorder (PTSD). However, entitlement to service connection for PTSD was denied by the RO in a July 2007 rating decision. There is no evidence that the Veteran appealed this rating decision; thus, that issue is not before the Board for consideration. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Additionally, in October 2012 the Board found that no new and material evidence had been received to reopen a claim of entitlement to service connection for a personality disorder. Thus the Board will not address that issue further. The service treatment records show that at service entrance examination in December 1972 during her first period of military service, the Veteran denied a history of trouble sleeping, depression, or excessive worry or nervous trouble. The psychiatric evaluation was normal. In June 1973, the Veteran ingested 30 to 35 Excedrin tablets. At a psychiatry consultation, she reported having a number of personal problems, homesickness, loneliness, curtailment of social activities, and "gentleman problems," which she indicated caused her to do what she did. She denied having any serious problems adjusting to the military. On examination, she was alert and in no apparent distress. The finding was acute situational reaction with paranoid ideations. In July 1973, she reported that she had no desire to live. A depressive state was noted. At service separation in September 1973, a history of situational reaction and paranoid ideations was noted. The psychiatric evaluation was normal. At the entrance examination to her second period of service in October 1974, the Veteran denied a history of trouble sleeping, depression, or excessive worry or nervous trouble. The psychiatric evaluation was normal. In January 1975, on mental health evaluation, the Veteran demonstrated a very hostile attitude towards authority and was more bound to her ideas than to directions or orders given to her. It was stated that she was manipulative and untrustworthy. In January 1975, the Veteran was seen in the mental health clinic for extreme resentment toward authority. The provisional diagnosis was anaclitic depression as manifested by impulsiveness. In a February 1975 note, an examiner agreed with the finding that the Veteran had a severe personality disorder, diagnosed as cyclothymic personality with impulsive and histrionic features. In an April 1975 letter from the Chief of the outpatient mental health clinic, it was noted that the Veteran had cyclothymic personality with impulsive and histrionic features, manifested by frequent unpredictable mood swings, poor judgment, poor impulse control, episodic depression, and low self-esteem. It was reported that the original thought was to recommend her for separation, but then it was concluded that there was a reasonable possibility that she would be a productive member of the military. The examiner indicated that the Veteran was too unstable, especially with regard to her mood swings, to be good risk for a job described by the Group Flight Surgeon at McClellan AFB. In April 1975, the Veteran admitted to hyperventilation syndrome and nervousness, and that she is unsuited for a flying job. The examiner agreed and indicated that the Veteran had free floating anxiety syndrome and was not qualified for flying status. At her service separation in July 1975, she reported a history of frequent trouble sleeping, depression, and excessive worry. It was noted that in January 1975, she manifested a character and behavior disorder; severe cyclothymic personality, with impulsive histrionic features manifested by frequent unpredictable mood swings, poor judgment, poor impulse control, episodic depression, and low self esteem. It was reported that the Veteran stated that she had attempted suicide in 1973 by an Excedrin overdose. After service, VA records show that in August 1974, the Veteran was hospitalized for a second admission. It was noted that on admission in January 1973, the diagnosis was inadequate personality and accompanying depression. The finding was, personality disorder with a differential diagnosis of hysterical personality disorder versus anorexia nervosa. She was admitted again in October 1977 for abnormal eating problems, and bulimia and mixed personality disorder were diagnosed. Progress notes in November 1977 showed personality disorder and inadequate personality. In September 1978, her diagnosis was personality disorder, hysterical personality with many anti-social features and later that same month she was noted to have immature hysterical personality. Extensive records from the Social Security Administration show that the Veteran applied for benefits in 1977 and was granted benefits for anxiety, depression and bulimia. In January 1977, on a private evaluation, the Veteran underwent psychological testing. The tests were noted to suggest immaturity, difficulty in interpersonal relationships, and confusion in goal directed activity. Also in January 1977, she was admitted to a mental health center as a referral. The provisional diagnosis was hysterical personality. At discharge the diagnosis was schizophrenia, chronic undifferentiated. At a private evaluation in December 1984 the Veteran underwent testing. The examiner indicated that the personality/emotional area looked "quite shaky" and that the Veteran "might possess a chronic kind of maladjustment, perhaps tending toward a schizophrenic kind of thing." Private records show findings of cyclothymic disorder in October 1988, after treatment for drug abuse. An admission note indicated an impression of affective disorder, rule out atypical affective disorder, and disorder of impulse control. Private records show treatment in 1997 with diagnoses of generalized anxiety disorder, personality disorder, recurrent major depression, and dysthymic disorder. In 1999, 2000, and 2001, she was diagnosed with depression, major depression, and major depressive disorder. Private records from Dr. K. show that the Veteran was seen in September 2003. It was noted that she had been seen in 1989 for major depression and panic disorder without agoraphobia and history of alcohol dependence and bulimia nervosa. She was examined, and major depression, rule out bipolar disorder and panic disorder. Treatment continued into 2004 with findings of depression, and in October 2004, rule out bipolar was assessed. In a December 2004 statement, the Veteran's sister reported that the Veteran changed when she went into the military. It was noted that she had lost weight and looked unhappy. She reported that the Veteran stayed to herself when she came home, had no drive and had no permanent relationships. The Veteran was examined by VA in June 2005. The claims file was reviewed. Her history was documented. It was noted that she had been hospitalized in 1977 and that she had a history of depression and an eating disorder. The examiner noted that she was a recovering alcoholic and had a history of panic disorder. The Veteran was examined. The diagnosis was, depression, partial treatment response, alcohol dependence in remission, panic disorder without agoraphobia in remission and eating disorder. The examiner opined that after review of the claims file, current medical records and clinical interview, the current disorders of depression and eating disorder are "less likely as not" caused by or a result of experiences during her time in the military. In a December 2005 letter, a private examiner stated that the Veteran was in treatment for major depression, single episode, "rule out" bipolar disorder. The Veteran was examined by VA in August 2007. The examiner stated that review of the records from the early 1970's indicates a primary diagnosis of an Axis II personality disorder with an occasional mention of either an eating disorder or "accompanying depression." It was reported that the Veteran's "driving psychopathology" as of the early 1970s was documented as a personality disorder, at times referred to as cyclothymic personality disorder. The diagnosis was chronic depression/dysthymia; panic disorder, without agoraphobia; and eating disorder. The examiner stated that the Veteran had personality disorder. The examiner stated that the diagnosis of personality disorder in service and cyclothymic personality in 1975 was correct and that the current personality disorder was the same condition that was diagnosed as cyclothymic personality disorder in February 2005. The examiner stated that the Veteran's service medical record never clearly and consistently diagnosed an an independent Axis I diagnosis, such as major depression or dysthymic disorder, that was independent from her Axis II personality disorder when she was in service. The examiner found that the current Axis I disorders of chronic depression versus dysthymia; panic disorder, without agoraphobia; and eating disorder "more likely than not" were not caused by or as due to the Veteran's military service. It was found that those disorders were chronic in nature, and "more likely than not" post-dated the Veteran's military service and continued to the present, with the opinion that they were neither caused by nor permanently aggravated by the Veteran's time in the military. The examiner reiterated that the "driving psychopathology" was her Axis II personality disorder before, during, and after her time in the military. Private records show diagnoses of bipolar disorder, exacerbation of depression, and anxiety in 2007. In June 2010, the Veteran testified before the Board and gave testimony in support of her claim. She discussed her inservice treatment and her treatment after service. She testified as to why she believed her military experience caused her current disorders. The Veteran was examined by VA in October 2010. The examiner diagnosed depressive disorder, not otherwise specified; panic disorder, in full remission; and bulimia. The Axis II diagnosis was mixed personality disorder. The examiner found that a diagnosis of bipolar disorder was not warranted based on the Veteran's symptoms. The examiner stated that mixed personality disorder was diagnosed as there was significant evidence through the years of histrionic personality, borderline personality, and avoidant traits. It was opined that the diagnosis of personality disorder represented her difficulties in the military based on treatment records at that time, and subsequent description of behaviors and diagnoses. It was stated that there was no clear separate or independent Axis I diagnosis while in the service and that her pathology during that time was for a personality disorder. The examiner was "not able to definitively link the Veteran's depression, anxiety or eating disorder to her military experience" and concluded that it was "less likely than not that the Veteran's current diagnoses were caused by or aggravated by military experience." In October 2012, an addendum VA opinion was obtained. The examiner found that the claimed condition was "less likely than not" incurred in or caused by the claimed inservice illness. The examiner indicated that the Veteran had three psychiatric examinations related to her claim, and reiterated the findings in the 2007 VA examination and in the October 2010 VA examination. The examiner indicated that in summary the opinion continued that the inservice complaints and pathology shown during service were at "least as likely as not" encompassed in and best explained by the known diagnosis of personality disorder, which was not caused or aggravated by military service. It was stated that it had been opined that the Veteran's other conditions were "less likely as not" related military service. It was reported that the symptoms, behaviors, and diagnoses in service records were most consistent with an Axis II disorder and that the objective evidence in the service records supported this opinion. In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). The evidence of record clearly demonstrates inservice treatment for psychiatric complaints. Further, the record includes abundant evidence of psychiatric complaints thereafter. As such, the salient issue in this case is whether the Veteran's current psychiatric disorders are etiologically related to her active duty service, to include the instances of inservice treatment. Hickson, 12 Vet. App. at 253; see also Pond, 12 Vet App. at 346. The June 2005 VA examiner opined that after review of the claims file, current medical records and clinical interview, the current conditions of depression and eating disorder are less likely as not caused by or a result of experiences during her time in the military. The August 2007 VA examiner found that the current Axis I disorders of chronic depression versus dysthymia; panic disorder, without agoraphobia; and eating disorder were not "more likely than not" caused by or as due to the Veteran's time in the military. The October 2010 VA examiner did not link the Veteran's depression, anxiety, or eating disorder to her military experience and concluded that it was "less likely than not" that the Veteran's current diagnoses were caused by or aggravated by military experience. In October 2012, the October 2010 examiner indicated that the inservice complaints and pathology shown during service were at "least as likely as not" encompassed in and best explained by the known diagnosis of personality disorder, which was not caused or aggravated by military service. The examiner stated that this is why it has been opined that the Veteran's other conditions were "less likely as not" related military service. The examiner found that the symptoms, behaviors, and diagnoses in service records were most consistent with an Axis II disorder and that the objective evidence in the service records supported this opinion. In this, and in other cases, the Board may not base a decision on its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). There is no post-service medical evidence of record that associates the Veteran's current psychiatric disorders with her active duty service. The only competent etiological opinions of record are against the claim. The Veteran's inservice treatment has repeatedly been attributed to a personality disorder. These opinions were based on an examination of the Veteran, consideration of her statements, and a comprehensive review of the evidence of record. No medical professional, moreover, has ever linked a psychiatric diagnosis with the Veteran's military service. The contentions by the Veteran and her sister do not constitute competent evidence in support of her specific claim for service connection for a psychiatric disorder, to include depression and anxiety. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case of whether the Veteran developed a psychiatric disorder, to include depression and anxiety as a result of active duty falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a result, the assertions by the Veteran and her sister cannot constitute competent evidence of the etiology of her current psychiatric disorders. Accordingly, the preponderance of the evidence is against this claim, and there is no doubt to be resolved. Accordingly, service connection for a psychiatric disorder is not warranted. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a psychiatric disorder, to include depression and anxiety, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs