Citation Nr: 1321658 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 08-37 983 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 20, 1976 to June 29, 1976, and from March 23, 1977 to April 5, 1977. He was discharged for fraudulent enlistment following this brief period in 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision, by the Togus, Maine RO. In February 2011, the Board remanded the case for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in August 2012. In October 2012, the Board again remanded the case for evidentiary development. The Appeals Management Center (AMC) issued an SSOC in May 2013. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Review of the Virtual VA (VVA) paperless claims processing system reflects that VA/CAPRI records current through August 2012 are in the VVA file. The August 2012 SSOC reflects consideration of these records. (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002).) FINDING OF FACT A psychiatric disorder was not manifested during service, and is not attributable to the Veteran's military service. CONCLUSION OF LAW The Veteran does not have a psychiatric disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of a letter dated in May 2007 from the RO to the Veteran, which was issued prior to the RO decision in December 2007. Additional letters were issued in February 2011, January 2013, and April 2013. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claim decided herein has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested. The Veteran has been afforded VA examinations on the issue decided. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, examined the Veteran, and provided explanation for their conclusions. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Background The Veteran had active service from February 20, 1976 to June 29, 1976; the service treatment reports (STRs) are completely silent with respect to any complaints, findings or diagnoses of a psychiatric disorder. A VA progress note, dated in May 2006, indicates that the Veteran was seen for a medication evaluation; he was given an assessment of substance abuse/related mood disorder. In a statement in support of claim (VA Form 21-4138), received in February 2007, the Veteran indicated that he was seeking service connection for a psychiatric disorder to include schizophrenia. The Veteran maintained that he had had a mental disorder since his discharge from active duty. Submitted in support of the Veteran's claim were VA progress notes dated from February 2006 to May 2007. A February 2006 treatment note reflects diagnoses of opioid dependence, alcohol dependence, cocaine dependence, and psychotic disorder not otherwise specified (NOS). A psychiatry note dated in March 2007 indicates that the Veteran was seen for a routine follow-up evaluation. At that time, he reported that Seroquel controls his auditory hallucinations fairly well, but there were times when the voices get worse and he increased his dosage. The Veteran stated that the voices do not control his behavior, and he is otherwise functioning well. He was sleeping well most nights and working part time. The assessment was psychotic disorder NOS, improved; and opiate dependence. Of record is a statement from the Veteran's uncle, K. S., dated in July 2007, indicating that the Veteran did not have psychiatric problems prior to military service. He reported receiving a letter from the Veteran while in basic training where he talked about hearing voices and described some behavior different from anything he experienced prior to service. K. S. noted that the Veteran came back to his home after service in June 1976; at that time, he witnessed the Veteran responding to what he said were voices talking to him. K. S. stated the Veteran's behavior concerned him, so he recommended that he seek treatment. He noted that the Veteran has had those problems since he was discharged from service and he continues to have psychiatric problems. The Veteran was afforded a VA examination in September 2007. At that time, he denied feeling depressed; he denied crying spells, as well as feelings of helplessness or hopelessness. The Veteran reported that he attempted suicide three or four times in the past, but he denied suicidal and homicidal ideations currently. The Veteran reported that he heard voices since he had pneumonia while in the military. He admitted that he started drinking alcohol when he was a teenager; the last time he drank was eight months ago. He also reported that he began using drugs after service. Following a mental status examination, the examiner reported diagnoses of polysubstance dependence in early full remission, opiate dependence, and psychotic disorder due to substance abuse. The examiner stated that the Veteran did not meet the full criteria for schizophrenia. The examiner further stated that the Veteran's psychotic symptoms appear to be the result of his substance abuse and the Veteran appeared to be fabricating the information, as he had had a history of antisocial personality traits. A fax cover sheet from the Social Security Administration (SSA), dated in March 2008, indicates that SSA was unable to locate any medical records pertaining to the Veteran. In a statement in June 2009, the Veteran maintained that he started hearing voices while in basic training in 1976; he started hearing the voices while being treated for pneumonia. The Veteran indicated that he was seen by a doctor in service and he reported hearing the voices. The Veteran stated that he called his uncle when he started hearing the voices. The Veteran argued that the voices were not due to his use of drugs or alcohol because he did not start using drugs until 1979. Received in June 2011 were VA progress notes dated from March 2004 through May 2011. These records show that the Veteran received ongoing clinical attention and treatment for substance abuse and related mood disorder; his treatment included participation in a Methadone maintenance program. The Veteran was afforded a VA examination in June 2011 pursuant to the Board's remand. At that time, the Veteran reported that when he was in training at Fort Knox, his CO threw a grenade into the hole he and another soldier were sitting in. The Veteran also reported that, during service, he fell ill with pneumonia with elevated fever, which triggered psychotic symptoms. He reported being placed into an ice bath to bring his temperature down; and, after he came out of the ice bath, he started having auditory hallucinations. The Veteran indicated that he was scarred to tell anyone about his symptoms for fear that he would be committed. He stated that he finally went to see the station psychiatrist and was subsequently discharged. The Veteran reported that he had command-type hallucinations telling him to kill others; he was placed on Thorazine and discharged. Following a mental status examination, the pertinent diagnoses were psychotic disorder not otherwise specified (NOS), opiate abuse and dependency, cocaine abuse in full remission, and alcohol abuse in full remission. The examiner stated that, after a review of the available claims file and CPRS records and statements written by the Veteran, "there is no evidence documented supporting any psychiatric symptoms, diagnoses or treatment thereof during the time of the Veteran's military service of [February 20, 1976 to June 29, 1976]." The Veteran was afforded another VA examination in May 2013. At that time, the examiner noted that the enlistment physical in February 1976 was negative for any history of drugs, alcohol, or homosexual behavior. Examination with normal clinical evaluation and no defects were noted. On the occasion of his discharge examination in March 1977, it was noted that "there has been no physical changes since his last physical." The examiner noted that his medical opinion was based upon review of the claims folder, the STRs, the VA electronic medical records accessed via CAPRI, the Veteran's pertinent mental examinations, and his lay statements. The examiner stated that it was his opinion that the Veteran's claimed mental disorder, currently diagnosed as psychotic disorder, NOS, opiate dependence on treatment with Methadone, cocaine abuse in full remission, and alcohol abuse in full remission, was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran entered service without providing medical history of car accident and intermittent severe headaches with associated blackouts at times, visual changes, staring spells with diagnostic impression based upon history of examination by neurology of temporal lobe epilepsy, severe headaches with blackout spells. His clinical examination was normal. The examiner further noted that there are no medical progress notes or consultations or personnel record entries providing evidence of patient complaint or evaluations related to the Veteran having a mental disorder while on active duty. However mental status examination by neurology described him as alert and cooperative. He had several-day hospitalizations for upper respiratory illness, including high fever with no evidence of mental aberration. The Veteran had disciplinary issues, violation of UCMJ in his personnel record, but no proceedings related to mental disorder. The examiner stated that he could find no basis for concluding that the Veteran's military service was related to his mental disorders. The examiner took note of the findings of the September 2007 VA examination as well as the June 2011 VA examination. The examiner stated that the Veteran had had a difficult time since his military service, compounded by mental illness, including drug and alcohol dependence, but with normal examination by a neurologist and no behavioral medical referral from his hospitalization for an upper respiratory infection. The examiner concluded that he could not relate the Veteran's mental disorders to his military service despite his contentions that he experienced psychiatric symptoms during service and continued to experience said symptoms after service. III. Analysis Service connection may be awarded for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. 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"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). In addition, the law provides that, where a veteran served ninety days or more of qualifying service and a psychosis becomes manifest to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). A veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board notes that the Veteran has been diagnosed with a psychotic disorder; however, after review of the evidentiary record, the Board finds that service connection is not warranted. In this regard, the STRs are negative for any findings of a psychiatric disorder or related symptoms. In addition, his post-service medical records do not reflect any documentation of psychiatric disorder until May 2006, more than 29 years following his discharge from service. In summary, there is a remarkable lack of evidence demonstrating any complaint or finding of a psychiatric disorder during the period from service discharge in 1977 until 2006. Moreover, the record does not include any evidence of a relationship between a current psychiatric disorder and the Veteran's active service other than by his own report. Significantly, following the VA examination in May 2013, the examiner opined that the Veteran's mental disorder was less likely than not incurred in or caused by the claimed inservice injury, event, or illness. The examiner also noted that there are no medical progress notes or consultations or personnel record entries providing evidence of patient complaint or evaluations related to the Veteran having a mental disorder while on active duty. The examiner stated that he could find no basis for concluding that the Veteran's military service was related to his mental disorders. The examiner stated that the Veteran has had a difficult time since his military service, compounded by mental illness, including drug and alcohol dependence, but with normal examination by a neurologist and no behavioral medical referral from his hospitalization for an upper respiratory infection. Significantly, it was noted that despite several-day hospitalizations in service for other disability, there was no suggestion that there was any mental problem. The examiner concluded that he could not relate the Veteran's mental disorders to his military service despite his contentions that he experienced psychiatric symptoms during service and continued to experience said symptoms after service. It is also noteworthy that, in September 2007, a VA examiner opined that the Veteran's psychotic symptoms appeared to be the result of his substance abuse. Moreover, the Veteran has not alleged, and the record does not otherwise show, that he sought post-service treatment for mental health problems until several years after leaving the military. In fact, the Veteran stated that he first sought treatment for his mental disorder in 2001, more than 24 years after service. Furthermore, for the reasons that follow, the competent evidence of record does not show that psychosis was demonstrated to a compensable degree within one year of separation. Thus, presumptive service connection for a psychosis is not warranted. See 38 C.F.R. §§3.307, 3.309 (2012). The Board acknowledges that the Veteran is competent to testify as to the presence of post-service mental health symptoms, which are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (Fed. Cir. 2007). However, to the extent that he relates his current mental health problems to service, his assertions are not probative. As a lay person, he has not been shown to have the clinical expertise to opine as to medical etiology or to render medical opinions. Accordingly, his assertions as to medical causation and etiology, absent corroboration by objective medical evidence and opinions, lack sufficient probative value to establish a nexus between current psychiatric problems and the Veteran's time in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board). Given the examiner's opinion, the absence of complaint or treatment until many years after service, and the absence of any credible evidence showing continuity of symptomatology since service, the Board finds that the evidence weighs against the Veteran's claim. Statements from the Veteran and his uncle are not credible given that the Veteran was in fact seen in service for other problems, and while he was observed for several days, there was no suggestion that he was having the sort of problems the Veteran reported experiencing. That sort of evidence, considered along with evidence showing that the Veteran did not seek treatment for so many years after service despite having problems that he now claims were quite significant even when he was in service, leads the Board to conclude that the Veteran did not in fact experience the problems he says he did during service. In short, an acquired psychiatric disorder is not traceable to disease or injury incurred in or aggravated by service, and there is no evidence of a nexus between the post-service diagnosis and active service. Additionally, there is no suggestion of any manifestation within the one-year presumption period following separation from service. As such, the Veteran's claim for service connection for an acquired psychiatric disorder must be denied. There is no doubt of material fact to be resolved in the Veteran's favor. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001) (benefit-of-the-doubt rule does not apply when preponderance of evidence is against claim). ORDER Service connection for a psychiatric disorder is denied. _______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs