Citation Nr: 1319314 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 05-02 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active military service from June 1978 to December 1981. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran appealed, and in August 2007, the Board denied the claim. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In September 2008, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's August 2007 decision. That same month, the Court issued an Order vacating the August 2007 Board decision. In February 2009, and December 2012, the Board remanded the claim for additional development. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder that was caused by his service. CONCLUSION OF LAW An acquired psychiatric disorder was not caused by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for an acquired psychiatric disorder. He essentially asserts that he had anxiety while being treated for hepatitis A during service, and that he became chronically anxious and worried that he might develop chronic sequelae secondary to hepatitis infection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Personality disorders are not compensable diseases or injuries within the meaning of veterans' benefits law. 38 C.F.R. §§ 3.303(c), 4.9 (2012); Winn v. Brown, 8 Vet. App. 510, 516 (1996); Beno v. Principi, 3 Vet. App. 439 (1992). Compensation is not payable for a disability that is a result of the appellant's own alcohol or drug abuse. See 38 U.S.C.A. §§ 105, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(n), 3.301(c) (2012); Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351; see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). Given the foregoing, the term "acquired psychiatric disorder" is not intended to include a personality disorder, or alcohol or substance abuse. The Veteran's service treatment show that he was diagnosed with viral hepatitis A, Australian antigen negative, hospitalized from January 8, 1979 to January 31, 1979, and subsequently placed on convalescence leave from January 31, 1979 to February 5, 1979. A "Medical Condition - Physical Profile Record" completed by a physician, dated February 15, 1978, indicates that the Veteran was recovering from hepatitis and that a numerical designation of 1 was assigned the category on the Veteran's physical profile (PULHES) for his psychiatric health. The number 1 indicates that an individual possesses a high level of medical fitness and, consequently is medically fit for any military assignment. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). A June 1980 report contains a diagnosis of "improper use of opiates." The Veteran's service records include records of a December 1981 Special Court Martial, which indicates that the Veteran was separated from service after he was determined to be in possession of marijuana, a syringe, and a needle. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1982 and 2013. This evidence includes VA progress notes which show that in October 1988, the Veteran was diagnosed with anxiety. In November 1988, the Veteran was noted to have a history of I.V. (intravenous) heroin dependence, and cocaine abuse. The Veteran reported that he was HIV (human immunodeficiency virus) positive. He complained of episodes of anxiety, and a one-year history of insomnia, and a two-week history of auditory hallucinations. He stated that he was confused and anxious due to multiple medical problems and being unemployed. He reported being treated by a physician one year before, and being given valium and Xanax, which helped with his anxiety. There were assessments of heroin dependence, valium dependence, rule out panic attacks, and substance abuse. The Veteran subsequently received ongoing treatment for substance abuse and psychiatric symptoms, with diagnoses that included anxiety disorder, substance abuse disorder, heroin dependence, cocaine abuse, opioid dependence; he received Axis II diagnoses that included antisocial personality disorder. In addition, a May 1990 report contains a diagnosis of adjustment disorder secondary to HIV. The VA reports indicate an ongoing use of methadone, and a November 2009 report notes a 17-year history of methadone use. A VA examination report, dated in April 2009, shows that after a review of the Veteran's claims file and interview with the Veteran, the examiner stated that the Veteran's condition, generalized anxiety disorder, was not caused by or a result of military service, especially his diagnosis or treatment for hepatitis A. The examiner explained that hepatitis A is a water-borne hepatitis with no residual liver damage or long-term consequences, and that it is a self-limited infection that confers antibody protection after it. The examiner noted that the Veteran used alcohol and marijuana prior to military service, both of which were associated with symptoms such as tachycardia, dry mouth, increased appetite, sweating, hand tremor, anxiety, insomnia, agitation, and grand mal seizures in severe cases. In October 2010, the Board found that the April 2009 opinion was not adequate and remanded the case for additional development to include affording the VA an additional VA examination. The Board directed that the VA examiner should identify all acquired psychiatric disorders and offer an opinion as to whether it was at least as likely as not that any such disorder was related to the Veteran's military service including his diagnosis and treatment for hepatitis A during service. In August 2011, the Veteran underwent VA examination. The examination report shows that, after review of the claims file and interview with the Veteran, the examiner diagnosed the Veteran as having opioid dependence in agonist therapy, and depressive disorder NOS. The examiner noted that the diagnoses were two separate and distinct entities with no relationship to each other. The examiner also provided an opinion that the Veteran's neuropsychiatric disorder was not caused by or a result of his military service. The examiner explained that there was no evidence of psychiatric complaints, psychiatric findings, or psychiatric treatment prior to the military service, or during the military service; that the veteran was diagnosed and treated for hepatitis A during his military service but the condition resolved without sequelae; and that the Veteran did not seek psychiatric care after that episode. The examiner noted that on the separation examination, the Veteran gave no history of psychiatric complaint and was clinically evaluated as psychiatrically normal; and that there was no evidence of psychiatric complaints, findings, or treatment within one year after discharge from military service. The examiner stated that the Veteran sought psychiatric care in 1994, thirteen years after his military discharge due to opioid dependence, "a condition that bears no relationship whatsoever to veteran's military service in terms of anatomy, pathophysiolo ... etiology." The examiner noted that a temporal relationship between the Veteran's neuropsychiatric disorder and the Veteran's military service was not established, and that the Veteran had a history of multiple physical conditions that played a significant component in the Veteran's psychosocial functioning. In December 2011, the Board requested that a psychiatrist provide an advisory medical opinion. Specifically, the Board directed that the psychiatrist identify all psychiatric disorders and provide an opinion as to whether it was at least as likely as not that any such disorder was related to the Veteran's military service, to include his diagnosis of hepatitis A during service. The Board specifically requested that in offering such opinion, the psychiatrist consider whether such diagnosis and treatment resulted in an acquired psychiatric disorder. In addition, the Board directed that the psychiatrist indicate if the Veteran had a psychosis within one year of his service discharge in December 1981. In March 2012, the Board received a medical opinion which indicated that the Veteran was diagnosed as having generalized anxiety disorder, opioid dependence, and depressive disorder NOS. In addition, the psychiatrist noted that after a review of the medical records, there was no record of findings, symptoms, complaints, or diagnoses attributable to an anxiety disorder while the Veteran was in the military and that the post-service medical records were negative for any evidence or diagnosis of an anxiety disorder until many years after separation from military. The psychiatrist also noted that there was no evidence that the Veteran was diagnosed with opioid dependence or a depressive disorder while in the military. The psychiatrist opined that there could be found no causal relationship with the Veteran's acute medical illness in the military (hepatitis A) and his diagnoses of generalized anxiety disorder in 2009, opioid dependence in 2011, or depressive disorder, NOS, in 2011. The psychiatrist indicated that it was highly unlikely that the Veteran's acute illness (hepatitis A) in the military directly caused his later diagnoses of generalized anxiety disorder, opioid dependence, or depressive disorder, NOS. The psychiatrist again noted that there was no evidence that the Veteran had a psychosis within one year of his service discharge in December 1981. In May 2012, the Board requested that the psychiatrist who rendered the March 2012 medical opinion provide an addendum opinion explaining the basis of why he did not find that any of the listed diagnoses were at least as likely as not related to the Veteran's period of active service other than the absence of documented complaints during service or for many years after service. In July 2012, the psychiatrist provided an addendum opinion which states: In my opinion, there was found no causal relationship with his acute medical illness and his clinical diagnoses. Considering the entire records including absence of evidence from the record, the veteran's lay statements of continuing relevant symptoms since service, the veteran's psychiatric diagnoses likely caused by biological/genetic factors, as well as environmental factors not related to his military service. It is my opinion, more likely than not, that there could be found no causal relationship with the veteran's acute medical illness and his psychiatric diagnoses. In December 2012, the Board stated that it found that each of the medical opinions above was still inadequate for adjudication purposes, and directed that another opinion be obtained. A VA disability benefits questionnaire (DBQ), dated in March 2013, shows that the examiner indicated that the Veteran's claims file had been reviewed. The diagnoses were substance-induced mood disorder, opiod dependence in early full remission agonist therapy, and cocaine abuse. The examiner indicated that the claimed condition was less likely than not (less than a 50 percent probability) incurred in or caused by the Veteran's service. The examiner explained the following: after a careful review of the Veteran's C-file and medical records, that there is no evidence of psychiatric complaints, psychiatric findings, or psychiatric treatment prior to military service. The Veteran was diagnosed and treated for Hepatitis A during his military service and no evidence of psychiatric follow-up treatment intervention was found. An evaluation note, dated in 1980, established documentation of Veteran's opiod dependence condition as a mental condition. Diagnoses of "improper use of opiates" were also documented. No other neuropsychiatric condition or medical issues were documented. After a longitudinal review of the medical evidence, it is evident that the mental deterioration suffered by the Veteran has been mostly on account of his drug use and dependence. The condition of substance-induced mood disorder overshadows any other possible mental disorder at present. The Board finds that the claim must be denied. The Veteran was not treated for psychiatric symptoms, or diagnosed with an acquired psychiatric disorder, during service. There are indications of drug abuse. The earliest post-service medical evidence of an acquired psychiatric disorder is dated in 1988. This is about seven years after service. The Veteran has not asserted that he has had an ongoing continuity of symptoms since his service, and in any event, he is not shown to have been diagnosed with a psychosis, which is the only acquired psychiatric disorder listed at 38 C.F.R. § 3.309(a) (2012), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, there is no competent medical evidence to show that the Veteran has an acquired psychiatric condition that is related to his service. In this regard, the only competent opinions of record all weigh against the claim. In particular, the March 2013 opinion is considered to be highly probative evidence against the claim, as it is shown to have been based on a review of the Veteran's medical records, and it is accompanied by a sufficient rationale. See Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With respect to the Veteran's own contentions, 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 (Fed. Cir. 2007). In this case, the issue on appeal is based on the contention that an acquired psychiatric disorder was caused by service that ended in 1981. 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, whether an acquired psychiatric disorder is related to service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Veteran was not treated for psychiatric symptoms during service. The post-service medical records do not show any relevant treatment or diagnoses prior to 1988. There is no competent evidence of a nexus between an acquired psychiatric disorder and the Veteran's service, and a VA opinion has recently been obtained that weighs against the claim. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contention to the effect that he has the claimed condition that is related to his service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in July 2004, and November 2010. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's service treatment records and reports, and his VA and non-VA medical records. The Veteran has been afforded examinations, and etiological opinions have been obtained. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). In December 2012, the Board most recently remanded this claim. The Board directed that an effort be made to obtain VA treatment records for psychiatric hospitalizations from January 1987 to December 1990. In March 2013, reports from the San Juan VA Medical Center were obtained, dated between 1988 and 1991. In this regard, these reports were not of record at the time of the Veteran's 2013 VA examination. However, these records merely show treatment for, and diagnoses of, acquired psychiatric disorders that are duplicative of those that were of record at the time of the March 2013 examination, i.e., substance abuse-related Axis I diagnoses (a number of these reports are discussed, supra). They also do not contain an etiological opinion which weighs in favor of the claim. The Board further notes that this evidence was considered by the RO in its April 2013 supplemental statement of the case. Therefore, additional development is not warranted. See 38 C.F.R. § 3.159(d) (2012). In its remand, the Board also directed that the Veteran be afforded a VA psychiatric examination, and that an etiological opinion be obtained. In March 2013, this was done. Under the circumstances, the Board finds that there has been substantial compliance with the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The claim for service connection for an acquired psychiatric disorder is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs