Citation Nr: 1318568 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-16 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, include bipolar disorder, schizoaffective disorder, and a depressive disorder. ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1980. He served in the Virginia Army National Guard from June 1984 to June 1985 with three years of United States Army Reserve service between his period of active duty and his service with the Virginia Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision denying the Veteran's claim of entitlement to service connection for schizoaffective disorder. In July 2012, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) the Board reclassified the service-connection issue involving a psychiatric disorder as entitlement to service connection for an acquired psychiatric disorder, to include a bipolar disorder, schizoaffective disorder, and a depressive disorder. In July 2012, the Board remanded the claims of entitlement to service connection for a bilateral hearing loss disorder and an acquired psychiatric disorder to the Appeals Management Center (AMC) for further development. In January 2013, the AMC granted entitlement to service connection for bilateral hearing loss disorder effective January 9, 2008, and assigned a noncompensable (zero percent) disability rating that same date. The Veteran has not expressed disagreement with the assignment of the date of the grant of service connection or the disability rating. Therefore, no issue regarding bilateral hearing loss is in appellate status. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran has or has had bipolar disorder during the appellate term. 2. The preponderance of competent and credible evidence shows that a psychiatric disorder was not demonstrated in-service, that schizoaffective disorder was not compensably disabling within a year of separation from active duty, and that there is no nexus between either schizoaffective disorder or a depressive disorder and service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service, and psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2008 and August 2012 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided notice of how disability evaluations and effective dates are assigned in February 2008. This claim was most recently readjudicated in a supplemental statement of the case issued in January 2013. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO and the AMC obtained the Veteran's service and VA treatment records. The RO obtained private treatment records. The AMC afforded him a VA examination, pursuant to the remand. The report of the August 2012 VA examination reflects that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate mental status examination and interview, and rendered an appropriate diagnosis consistent with the remainder of the evidence of record. Pursuant to the remand, the VA examiner attempted to address whether the appellant has an acquired psychiatric disorder related to active service. The examiner indicated that he could not resolve this issue without resorting to mere speculation. In determining whether this medical opinion is adequate, the Board has considered the holding in Jones v. Shinseki, 23 Vet. App. 382 (2010), that, when a medical examiner concludes that he or she is unable to provide a nexus opinion without speculation, this alone does not make the medical opinion inadequate; but that a medical opinion with such language may be adequate if the examiner sufficiently explains the reasons for this inability. Id. at 389-90; see also Obert v. Brown, 5 Vet. App. 30, 33 (1993) (noting that speculative opinion is not legally sufficient to establish service connection). The examiner stated that the claimant refused to participate in the evaluation because he was a "military operative" and, thus, the evaluation would be detrimental to his career. The examiner added that the Veteran then stated he would participate no further and that after checking in regarding safety issues, he left the evaluation. The Veteran claimed in a March 2013 statement that he did not make any statement that he would not continue or participate further. The appellant added that he "clearly stated that [he was] not allowed to answer questioning" because to "to offer any explanations of prior US military [s]ervices .... would constitute a breach of [national] security." The claimant has presented no evidence beyond his assertions that discussing his service would be harmful to the national security interests of the United States. The Veteran's DD Form 214 shows that during active duty he was a cannon crewman and a physical activities specialist. The 2004 VA treatment records show that around February 2004 he began developing paranoid delusional thinking. In particular, the appellant developed beliefs that he was again in the military and on secret assignments, to include a sniper mission; that he had special information about past crimes, which he needed to tell the Federal Bureau of Investigation; and that he had been infected by the human immunodeficiency virus (HIV) by the military, which he felt the need to pass on to others. The Board notes that the Veteran's active duty ended in 1980 and that his National Guard service ended in 1985. Based on the appellant's discharge papers and the 2004 VA medical evidence, the Board does not find credible his explanation for his failure to cooperate with the examiner. VA's duty to assist the Veteran is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the appellant only in a passive role. If the claimant wants help, he cannot now passively wait when he has the ability - in this case the ability to provide information to the examiner - that is essential in rendering the medical opinion. Wood v. Derwinski, 1 Vet. App. 406 (1991). Although the examiner did not address whether the depressive disorder, which had been diagnosed since the Veteran filed his claim in January 2008, is related to active service, the examiner due to the appellant's lack of cooperation could not have rendered an opinion on the etiology of the depressive disorder for the same reasons that he could not render an opinion on the etiology of the diagnosed schizoaffective disorder. Therefore, no further development with regard to obtaining a medical opinion on either schizoaffective disorder or a depressive disorder is necessary. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to the Board's remand, VA readjudicated the claim. In light of that and the discussion of the post-remand examination above, VA complied with the directives of the July 2012 remand to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). In any event, although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of due process when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. Legal Criteria Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or active duty for training, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.1, 3.6; see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Board has reviewed all of the evidence of record, to include the VA and service treatment records and VA examination report. These records do not show that the Veteran currently has or has had bipolar disorder since he filed his claim in January 2008. Although VA treatment records reflect that bipolar disorder was diagnosed as recently as December 2004, VA treatment records from January 2008 to the present reflect that bipolar disorder has not been diagnosed. The August 2012 VA examiner did not diagnose bipolar disorder. There is no other medical evidence showing that a diagnosis of bipolar disorder has been rendered since January 2008. As for schizoaffective disorder and depressive disorder, the Board has reviewed the service, private, and VA treatment records and the VA examination report. The preponderance of competent and credible evidence shows that a psychiatric disorder was not demonstrated in-service, that schizoaffective disorder was not compensably disabling within a year of separation from active duty, and that there is no nexus between either schizoaffective disorder or a depressive disorder and service. Moreover, the Board finds the preponderance of the most probative and competent evidence shows that there is no continuity of psychiatric symptomatology since separation from active duty. The service treatment records show no diagnosis of a psychiatric disorder or complaints of psychiatric symptomatology. A psychotic disorder was first diagnosed in September 2004. At the time of that diagnosis, it was noted that the Veteran was completely asymptomatic from a psychiatric perspective until January 2003 following a myocardial infarction at which point he began depressed and remained depressed until February 2004. The treatment records reveal that around February 2004 he started to develop changes in his personality and behavior that are consistent with a severe mania associated with paranoid delusional thinking. The August 2012 VA examiner diagnosed schizoaffective disorder but indicated that that he could not resolve the issue of whether schizoaffective disorder is related to active service without resorting to mere speculation because the appellant refused to cooperate with the examiner as discussed in great detail above in the VCAA section of this decision. Again, although the examiner did not address whether the depressive disorder, which had been diagnosed since the Veteran filed his claim in January 2008, is related to active service, the examiner due to the appellant's lack of cooperation could not have rendered an opinion on the etiology of the depressive disorder for the same reasons that he could not render an opinion on the etiology of the diagnosed schizoaffective disorder. There is no medical evidence relating either the schizoaffective disorder or the depressive disorder to active service. As for continuity of symptomatology, while the Veteran claims that his psychiatric disorder is related to active service and thus suggests that he has had psychiatric symptomatology since active service, the Board finds that he is competent to report psychiatric symptomatology but that he is not credible. VA treatment records show that the Veteran did not have any psychiatric symptomatology until January following a myocardial infarction at which point he began depressed. Therefore, continuity of symptomatology is not shown. As to the Veteran's claim that his psychiatric disorder, regardless of when its symptomatology began, is related to active service, the Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, schizoaffective disorder and a depressive disorder fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board concludes that the preponderance of the evidence is against granting service connection for an acquired psychiatric disorder, include bipolar disorder, schizoaffective disorder, and a depressive disorder. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, include bipolar disorder, schizoaffective disorder, and a depressive disorder, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs