Citation Nr: 1320958 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 07-19 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a mental disorder, to include schizoaffective disorder, bipolar affective disorder, and depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from September 1976 through September 1980. This matter comes before the Board of Veterans' Appeals (Board) from a March 2004 rating decision from the Regional Office (RO) of the Department of Veterans Affairs (VA) in Des Moines, Iowa, which found that new and material evidence had been submitted to reopen a claim of entitlement to service connection for a mental illness, to include depression. After reopening the claim and considering it on the merits, the RO denied service connection for a mental illness, to include depression. The record reflects that in October 2008, the Veteran was scheduled, but failed to report, for a videoconference hearing before a Veterans Law Judge. In a July 2011 decision, the Board reopened the issue on appeal and remanded the claim for further evidentiary development to include: advising the Veteran that he may provide lay statements in support of his claim; obtaining service personnel records; obtaining Social Security Administration disability records; and affording the Veteran a VA examination to assist in determining the probable etiology of his mental disorder. These actions were accomplished, and the claim was readjudicated in a July 2012 supplemental statement of the case. For this reason, the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with). Subsequent to the issuance of the July 2012 Statement of the Case, the Veteran submitted an additional statements in July 2012, for which a waiver of initial RO consideration was provided in June 2013 from the Veteran's representative. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. The Veteran did not engage in combat with the enemy. 3. The Veteran has a current diagnosis of schizoaffective disorder, bipolar affective disorder, and depression. 4. The Veteran had a period of absence without official leave (AWOL) during service and was diagnosed with adjustment reaction to adult life and possible development of alcoholism. 5. The Veteran's current mental disorders are not related to service. CONCLUSION OF LAW The criteria for service connection for a mental disorder, to include schizoaffective disorder, bipolar affective disorder, and depression have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An August 2003 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. In a March 2006 letter, the RO informed the Veteran of initial disability rating and effective date criteria. Pursuant to the July 2011 Board Remand directives, the Veteran was sent notice on October 2011 that he could provide lay statements in support of his claim for service connection. The Veteran has had ample opportunity to respond and supplement the record. With regard to the duty to assist, service treatment records, service personnel records, VA treatment records, private treatment records, Social Security Administration disability records, and the Veteran's statements have been obtained and associated with the claims file. Further, the RO arranged for VA examinations in January 1996, May 2006, March 2007, and March 2012. For reasons discussed in detail below, the Board finds the VA examinations to be adequate. The opinions were provided by qualified medical professionals and were predicated on a full reading of all available records. The examiners also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted 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). The condition of the claimed mental disorders, to include schizoaffective disorder, bipolar affective disorder, and depression is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for a Mental Disorder The Veteran contends that his current mental disorder is related to service. He reported that after returning stateside from Okinawa, he suffered from depression which resulted in multiple attempts at suicide where he tried to hang himself and, on another occasion, ingested Brasso (a chemical designed to remove tarnish from metals) and then went to the emergency room for treatment. He reports that after being released from the emergency room he went AWOL and then returned to base and completed his enlistment. According to the Veteran, his currently diagnosed mental disorders had their onset in service. At the outset, the Veteran does not allege, and a review of his official military documentation contained in his claims file does not otherwise indicate, that he engaged in combat against enemy forces as contemplated by VA regulations. His DD Form 214 does not reflect that he received any decorations or medals indicative of involvement in combat and his military occupational specialty was administrative clerk. For these reasons, the Board finds that the Veteran did not "engage in combat" with the enemy during service. 38 U.S.C.A. § 1154(b) (West 2002), 38 C.F.R. § 3.304(d). Next, the Board finds that the Veteran has a current diagnosis of bipolar disorder, schizoaffective disorder, and depression. See March 2012 VA examination, March 2007 VA examination, and March 1993 VA Medical Center discharge summary. The evidence of records demonstrates that the Veteran was referred for psychiatric treatment on one occasion in April 1979 during service. During this treatment session, it was noted that the Veteran had personal problems, especially family problems, and that the Veteran had become more depressed after returning stateside from Okinawa finding that things were going badly at home. He was drinking excessively and was diagnosed with alcohol abuse and "adjustment reaction to adult life." There was no depressive diagnosis, but it was noted that the Veteran was eating and sleeping poorly and had mood problems. The Veteran specifically denied suicidal thoughts. No medications were provided and there were no follow-up treatment notes of record. In the September 1980 service separation examination, the Veteran did not claim to have any psychiatric problems and none were noted on clinical evaluation. For the reasons discussed in detail below, the Board finds that the weight of the competent and probative evidence of record is against a finding that the Veteran's currently diagnosed mental disorders are related to service, to include his period of AWOL and the April 1979 treatment for depression and diagnosis of adjustment reaction to adult life. In this regard, the Board finds that the Veteran's statements regarding in-service depression and suicide attempts have been inconsistent and contradictory to the medical and lay evidence of record and, therefore, are not credible. The evidence of record includes a September 2005 statement where the Veteran reported that after returning from Okinawa he tried to commit suicide by hanging himself, but he was unsuccessful. Later he purportedly drank Brasso and then went to the emergency room. According to the Veteran, upon release from the hospital he went AWOL and returned to his mother's house. In a January 1984 Trinity Hospital Admission Report, the Veteran was admitted for threatening his mother. During the evaluation, the Veteran's mother stated that the Veteran was in the service for four years and she believed that he got along well with others except for one time when he went AWOL. At that time, she reported that the Veteran was stationed in the southern United States and became very frightened of the Ku Klux Klan. He returned home to his mother, but was later reinstated. She denied having knowledge of the Veteran's psychotic manner prior to 1984, four years after service separation. Despite the Veteran's September 2005 contention that he returned home after attempting suicide in 1979, the Veteran's mother was not aware of any psychiatric symptoms, including the Veteran's purported attempt at suicide. The Board finds that this evidence weighs against the Veteran's credibility. In a March 1993 VA Medical Center discharge summary, the Veteran reported that in 1979 he tried to hang himself. However, the Veteran did not report drinking Brasso and being admitted to the emergency room. This statement is inconsistent with the Veteran's September 2005 statement discussed above and, therefore, weighs against his credibility. In a January 1994 psychiatric evaluation from the Mental Health Institute, it was noted that records revealed that the Veteran had been treated for psychotic depression for the past 10 years (i.e., beginning in 1984). During the evaluation, the Veteran reported feeling depressed when he was 25 years old, in approximately 1981 and after service separation. The Veteran admitted to a history of suicidal ideation and a suicide attempt approximately six months prior (i.e., in 1993). Specifically, the Veteran reported that he "wanted to put a plastic bag over my head." Although the Veteran's service was noted, he did not report the alleged suicide attempts and depression in service in 1979. It was also noted that the Veteran went AWOL "for reasons that are not clear." The Board finds that the Veteran's lack of reporting the alleged in-service suicide attempts during the January 1994 evaluation weighs strongly against his credibility. The Board finds that it would be reasonable to assume that the Veteran, having already reported one suicide attempt to the January 1994 psychiatrist, would have also disclosed the purported in-service suicide attempts at this time. In a January 1996 VA examination report, the Veteran stated that he was stationed at Okinawa for two years and admitted to heavy drinking at that time. He reported that he drank as a form of self-medication for minimal symptoms of depression. Upon his return stateside, the Veteran reported that he became depressed and suicidal and on one occasion over-dosed on Brasso. The Veteran did not report attempting to hang himself or being admitted to the emergency room for treatment of the Brasso over-dose. This evidence demonstrates another inconsistency in the Veteran's reported in-service history and, as such, weighs against the Veteran's credibility. Similarly, in a September 2002 History and Physical Examination report from the Iowa Veterans Home, the Veteran identified episodic depression as being his most troublesome part of his illness. During these depressed episodes, the Veteran stated that he would become reclusive and stay in his home. He reported suicidal ideation on several occasions, but specifically denied suicide attempts. Notably, the Veteran did not relate his depression to service and did not mention the purported suicide attempts in 1979. The Board finds that this medical evidence weighs against the Veteran's credibility and weighs against a finding that his current mental disorders are related to service. In a May 2006 VA examination report, the Veteran stated that his in-service symptoms of depression in April 1979 had nothing to do with family problems. This statement is in direct contradiction with the April 1979 in-service treatment record where the Veteran reported personal problems, especially family problems. The Board finds that statements made while seeking treatment tend to be more credible than statements made while seeking increased monetary benefits. See Fed.R.Evid. 803(4) (generally finding reliable statements for the purposes of medical diagnosis or treatment); Rucker, 10 Vet. App. at 73 ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Further, the May 2006 VA examiner noted that the Veteran was persistent in his claim that he was suicidal in April 1979, in that he made several suicide attempts, including one involving ingestion of Brasso, which the examiner noted should have been retrievable from his records, but had not been found. The examiner stated that there were some contradictions and inconsistencies in his account, directly going against the service treatment records, and the VA examiner stated that he did not find the Veteran's claim credible. Noting the absence of records pertaining to the purported suicide attempt and the absence of a psychotic episode during the first year after discharge, it was the examiner's opinion that the Veteran's schizoaffective disorder did not arise until well after his discharge from service. The Board finds that the May 2006 VA medical opinion weighs against the Veteran's claim that his mental disorder is related to service. In a March 2007 VA examination, the Veteran reported three alleged 1979 suicide attempts, two by hanging and one by consuming Brasso. He stated that he drank the Brasso and then went to the emergency room. When asked by the VA examiner if his stomach had been pumped after consuming Brasso, the Veteran stated "no." The examiner opined that it was less likely than not that the Veteran's schizoaffective disorder manifested itself while he was in service. The examiner reasoned that the Veteran was treated for an adjustment disorder and substance abuse at that time and that he developed more significant mental disorder problems subsequently. In this regard, the examiner noted that the Veteran was first hospitalized in 1984, four years after service separation. The Board finds that the March 2007 VA medical opinion weighs against a finding of a nexus to service. In the most recent March 2012 VA examination report, the VA psychologist reviewed the claims file, to include a detailed discussion on some of the evidence noted above. The examiner stated that the Veteran had documented treatment for severe mental problems since 1984, four years after service separation. He also noted that the Veteran's statements had been inconsistent. The examiner noted the Veteran's period of AWOL during service, but stated that he returned to duty and earned an honorable discharge, serving an additional 1.5 years. The examiner opined that the Veteran's mental disorders were less likely than not incurred in or caused by service. In support of this opinion, the examiner noted the following factors which he found to weigh against active duty onset: completion of enlistment; absence of mental disorder symptoms at service separation examination; completion of college degree in accounting after service separation; absence of documented treatment immediately after service separation; mother's 1984 statement where she denied having knowledge of the Veteran's psychotic manner prior to 1984; and inconsistent and contradictory statements by the Veteran with regard to history of symptoms and treatment. The Board finds the March 2012 VA medical opinion to be highly probative as to a lack of nexus to service. The examiner reviewed the claims file, discussed the evidence in detail, and provided an opinion based on a clear rationale supported by the evidence of record. See Prejean, 13 Vet. App. at 448-9. Upon review of all the evidence of record, both lay and medical, the Board finds that, despite the Veteran's reported symptoms of depression and a diagnosis of an adjustment reaction to adult life in service, the weight of the competent and probative evidence of record demonstrates that the Veteran's currently diagnosed mental disorders are not etiologically related to service. The Board has specifically considered the Veteran's contentions that his mental disorders had their onset in service; however, as discussed in detail above, the Board finds that the Veteran's statements regarding in-service symptoms and treatment are not credible. Further, despite efforts to verify the Veteran's purported in-service suicide attempts and emergency room visit, service treatment records and service personnel records do not confirm this contention. Notably, the Veteran has only reported in-service suicide attempts to VA medical personnel. See March 1993 VA Medical Center discharge summary, January 1996 VA examination, May 2006 VA examination, March 2007 VA examination, and March 2012 VA examination. In contrast, when reporting his mental health history to non-VA medical professionals, the Veteran has either explicitly denied suicide attempts or has reported suicide attempts after service separation. See January 1984 Trinity Hospital record, January 1994 psychiatric evaluation from the Mental Health Institute, and September 2002 History and Physical Examination report from the Iowa Veterans Home. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991) (interest may affect the credibility of testimony). For these reasons, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a mental disorder, to include schizoaffective disorder, bipolar affective disorder, and depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a mental disorder, to include schizoaffective disorder, bipolar affective disorder, and depression is denied. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs