Citation Nr: 1318519 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-49 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include adjustment disorder and anxiety disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARING ON APPEAL Appellant and TU ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from August 1995 to February 1996, from December 1997 to December 2001, and from January 2005 to July 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, denied service connection for PTSD. The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) at the RO in October 2009. A transcript of this hearing has been associated with the Veteran's VA claims folder. The record reflects the Veteran also requested a hearing before a Veterans Law Judge (VLJ) of the Board, and that such a hearing was scheduled for September 2010. However, the Veteran failed to appear for this scheduled hearing. Consequently, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). This case was previously before the Board in June 2011 and September 2012. In June 2011, the case was remanded for consideration of revised regulatory provisions regarding claim for PTSD. Thereafter, in September 2012, the Board denied service connection for PTSD but remanded the claim of service connection for an acquired psychiatric disorder other than PTSD for further development to include a VA medical examination. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). However, the Veteran failed to report for the scheduled examination and efforts to contact him on the matter were unsuccessful. Therefore, the Board finds that this development has been completed to the extent permitted by the cooperation of the Veteran. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). All other development directed by the Board's remands in this case appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT The preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has an acquired psychiatric disorder as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for an acquired psychiatric disorder other than PTSD are not met, to include an adjustment disorder and an anxiety disorder. 38 U.S.C.A. §§ 105, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.326, 3.655 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The Court has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in August 2008, which is clearly prior to the March 2009 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in June 2011 and September 2012. This case was then readjudicated by a February 2013 Supplemental Statement of the Case. In pertinent part, these letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information used by VA to determine disability ratings and effective dates. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records to include electronic VA treatment records associated with the claim on the Virtual VA system. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, to include at the October 2009 DRO hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding records relating his current psychiatric disorder to active service. With respect to the aforementioned October 2009 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO asked questions to clarify the Veteran's contentions and treatment history, as well as in-service events. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the October 2009 hearing. The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and there is no prejudice in deciding the claim at this time. The Board also reiterates, as detailed in the Introduction, that his request for a hearing before a VLJ of the Board is deemed withdrawn. The Board further notes that the Veteran was accorded a VA medical examination June 2011 which, as detailed below, made relevant findings regarding the current appellate claim. As these findings were based upon both an examination of the Veteran and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds they are supported by an adequate foundation. No prejudice has been demonstrated with respect to this examination. The Board observes that it previously determined in September 2012 that a new VA examination was necessary to address the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD. In making this determination, the Board noted that that the June 2011 VA examiner's evaluation was primarily focused on PTSD, and given that the record also reflected diagnoses of adjustment disorder and anxiety disorder, a new examination was necessary to determine if these findings were related to service. However, a review of the record reflects that the Veteran failed to report for the scheduled examination, and that multiple efforts to contact him on the matter were unsuccessful. Therefore, the Board finds that the development conducted in this case, to include the June 2011 VA examination, is adequate based upon the cooperation of the Veteran. See Wood, supra. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The Veteran essentially contends that he has an acquired psychiatric disorder due to in-service stressors that occurred while stationed in Iraq during his active service, and provided details thereof in various statements, his October 2009 hearing, and the June 2011 VA examination. For example, at the June 2011 VA examination he reported that he served in Iraq from October 2005 to October 2006 with A Battery, 2nd of the 5th Field Artillery. He indicated that his duties included guard duty, cook, helping out with mail, driving a Palletized Load System (PLS) vehicle and serving as a mechanic. With respect to traumatic experiences he reported the following: (1) On one occasion, he and another specialist came under mortar attack while on guard duty but no one was injured or killed. There was no follow-up fire. (2) In another incident, he and another friend were driving separate vehicles, when his friend accidently rolled the truck over a concrete barrier. He reported that everyone was okay and there were no explosions or enemy fire. (3) In another incident, he and some others were on a mission driving PLS vehicles when the 3rd vehicle driven by his friend, T.B., was hit by an IED blast. The Veteran noticed that the tires were blown up and the gas tank was punctured but his friend was not injured. No one had been injured. With respect to this stressor, the examiner noted that in previous reports, it was indicated that T.B. had been injured in the blast. Therefore, the Veteran's report today that his friend had not been injured was in contrast to what he previously claimed. The Veteran did report that two people on his base were killed from a rocket attack but he did not have exposure to that event. He described receiving a small arms fire on only one occasion but he could not see where it was coming from and he did not get permission to fire. No one was injured. The Board also observes that the Veteran's service treatment records reflect, in pertinent part, that he indicated having problems sleeping since his return from overseas on an April 2006 Report of Medical History. Further, in an April 2007 report of mental status evaluation, he reported being depressed. The Board notes, however, that a specific diagnosis for psychiatric symptoms involves complex medical issues. In fact, the Veteran's symptoms have been attributed to various diagnoses including PTSD, adjustment disorder, and anxiety disorder. Further, as detailed below, certain diagnoses are precluded under the law from service connection (at least for compensation purposes). Therefore, the Board finds that competent medical evidence is required to both diagnose the Veteran's current psychiatric disorder and to determine whether any such diagnosis is etiologically linked to his military service. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions do not constitute competent medical evidence on this matter. 38 C.F.R. § 3.159(a)(1). In regard to the findings of PTSD in competent medical evidence on file, the Board reiterates that service connection has already been denied for PTSD in its September 2012 decision. The Board found that the most probative evidence indicates the Veteran does not suffer from PTSD. Therefore, service connection for that disability is no longer on appeal before the Board and is not for consideration at this time. Regarding service connection for an acquired psychiatric disorder other than PTSD, the Board again notes that the Veteran has been diagnosed with an adjustment disorder and an anxiety disorder. However, no competent medical evidence is of record which attributes these diagnoses to active service. Although the Board determined in September 2012 that an examination was necessary to determine whether the current diagnoses were related to service, as already noted the Veteran failed to report for the scheduled examination. Pursuant to 38 C.F.R. § 3.326(a) individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, as is the case here, the claim shall be rated based on the evidence of record. Here, the Board has determined that competent medical evidence is necessary to relate the etiology of the Veteran's current acquired psychiatric disorder to his active service, and no such evidence is of record. The Board further notes that the June 2011 VA examiner diagnosed the Veteran with cannabis abuse in early partial remission, unrelated to military service; and alcohol abuse, unrelated to military service. No other acquired psychiatric disorder was diagnosed on this examination. The examiner also provided an explanation as to why the Veteran did not satisfy the criteria for a diagnosis of PTSD. The examiner did acknowledge that the Veteran described some hyperarousal symptoms, such as difficulty sleeping, feeling on guard, and feeling anxious in crowds. However, the examiner stated that it appeared these symptoms may have predated the Veteran's military service in that he had a history of fighting with others and being involved in drug use and sales, with some potential conduct problems in childhood. The examiner stated that this may point to a personality pattern which would include irritable traits, making the Veteran's present irritability and hypervigilance pre-existing rather than related to any particular event in military service. The examiner also stated that the Veteran's military service did not seem to have exacerbated any of his previous personality traits or symptoms. Additionally, the June 2011 VA examiner noted that the Veteran continued to use alcohol at problematic levels and was only recently using cannabis at problematic levels. The examiner noted that alcohol and drug use certainly cause mood instability, anger, irritability, sleep difficulty, apathy, and depressed mood. Therefore, given that the Veteran was still using alcohol at problematic levels, his current report of some psychiatric symptoms appears to be in direct relation to his substance abuse. Further, the examiner stated that there did not appear to be a separate psychiatric diagnosis at this time that was unrelated to substance abuse. Here, the Board has already noted that the June 2011 VA examiner had an accurate understanding of the Veteran's medical history from review of the VA claims folder. Moreover, the examiner cited to relevant findings regarding this history in the examination report itself. Further, the examiner's opinion is supported by stated rationale with reference to relevant findings in the record. No competent medical opinion is of record which explicitly refutes the findings of this VA examiner. As the examiner's consideration was primarily focused on PTSD, the Board requested that an additional examination be scheduled on remand. However, the Veteran did not report for that examination. Thus, further in-depth consideration of his case for purposes of obtaining a nexus opinion could not be conducted. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. In reviewing the aforementioned June 2011 VA examiner's findings, the Board observes that to the extent the Veteran's symptoms have been attributed to a personality disorder, VA regulations mandate that personality disorders are not diseases or injuries for VA purposes and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). The Board also wishes to note that to the extent the Veteran's symptoms have been attributed to substance abuse problems, the law has consistently precluded payment of compensation for a disability that is a result of a Veteran's own alcohol or drug abuse is prohibited by law. 38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.301(d). In summary, the Board is required to adjudicate the Veteran's claim based upon the evidence of record pursuant to the requirements of 38 C.F.R. §§ 3.326 and 3.655. The Veteran has reported in-service stressors, symptoms such as sleep difficulty and depression are noted in his service treatment records, and he has been diagnosed with an acquired psychiatric disorder. However, the Board has determined that competent medical evidence is required to relate the current diagnoses to service, and no such supporting evidence is of record. Further, the June 2011 VA examiner indicated that the Veteran's current symptoms are actually due to a personality disorder and/or substance abuse, both of which are precluded by law from being service connected (at least for compensation purposes). For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding that the Veteran currently has an acquired psychiatric disorder as a result of his active service. No other basis for establishing service connection for the claimed disability is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefits sought on appeal with respect to this case must be denied. ORDER Service connection for an acquired psychiatric disorder other than PTSD, to include adjustment disorder and anxiety disorder, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs