Citation Nr: 1321775 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 07-08 566 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran had active service from June to August of 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's appeal stems from his claim seeking service connection for a "mental health" disorder. The Veteran has also filed a separate service connection claim for PTSD, which was adjudicated by an unappealed March 2008 rating decision. As such, the Veteran's claim on appeal has been phrased to reflect that PTSD is not within the scope of his current claim on appeal. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran's claim was previously remanded by the Board in October 2008 to afford the Veteran an opportunity to testify before the Board (although the Veteran's penal institution denied his request to participate in a hearing), in January 2010 to attempt to obtain the Veteran's psychiatric treatment records from his correctional facility and to procure a related medical opinion, and in October 2011 to attempt to obtain the Veteran's pre-service hospitalization records and to procure a medical opinion as to whether it is at least as likely as not that the behaviors that the Veteran exhibited during service were actually symptoms or early stages of his currently diagnosed psychiatric disorder. Because the benefit sought remains denied, the claim has been returned to the Board for further appellate review. FINDING OF FACT The most probative evidence fails to link the Veteran's current acquired psychiatric disorder to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's notice requirements were satisfied by a June 2005 letter, sent prior to the September 2005 initial adjudication of the claim, which advised the Veteran of the criteria for establishing service connection. In May 2006, prior to readjudicating the claim in the January 2007 statement of the case, the RO provided notice with respect to disability ratings and effective dates. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment and personnel records and records of his post-service private treatment. While the Veteran has provided some of his post-service treatment records from the Florida Department of Corrections, full records have not been obtained because the correctional facility has advised that payment for the copies of these records must be made before they can be provided to the VA. As VA cannot pay for these records, and as the Veteran is reportedly indigent and therefore unable to provide payment, such records have not been obtained. VA has taken such steps as are authorized to obtain such records, but it is ultimately the Veteran's responsibility to obtain records not in the custody of a Federal department or agency. VA has obtained two medical opinions from a VA psychologist regarding the Veteran's claimed acquired psychiatric disorder, in March 2011 and October 2012. The October 2012 opinion report is adequate because the psychologist based his opinions upon consideration of the Veteran's prior medical history, described the disabilities in sufficient detail so that the Board's evaluations of the claimed disabilities will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. The record reflects substantial compliance with the Board's prior remand instructions. In October 2008, the Board requested that the agency of original jurisdiction (AOJ) schedule the Veteran for a hearing at a local VA office before a Veterans Law Judge, if temporary release for that purpose were permitted by the State of Florida in accordance with the terms of the Veteran's incarceration. In response, the AOJ scheduled the Veteran for a hearing in February 2009, and provided him with notice thereof in a January 2009 letter. The Veteran subsequently responded that he would be unable to attend the hearing. In January 2010, the Board requested that the AOJ request copies of the Veteran's Department of Corrections psychiatric treatment records, and obtain a medical opinion. In response, the AOJ made two requests for those non-Federal records, as reflected in correspondence from VA to the Veteran dated May 2010; as discussed above, VA is unable to pay for those records, and the Veteran has not provided them. The AOJ obtained a VA medical opinion from a psychologist in March 2011; as explained below, the AOJ obtained a second VA medical opinion from that psychologist in October 2012. In October 2011, the Board requested that the AOJ request a release from the Veteran to authorize VA to obtain his pre-service hospitalization records related to his reported pre-service substance abuse and/or suicide attempt, and obtain a new medical opinion as to whether it is at least as likely as not that the behaviors that the Veteran exhibited during service were symptoms or early stages of his currently diagnosed psychiatric disorder. In response, the AOJ sent the Veteran three letters-in April, May, and July 2012-requesting his authorization to obtain his pre-service hospitalization records; the Veteran responded in a July 2012 letter that he declined to send the authorization form to VA. The AOJ obtained a second VA medical opinion from the psychologist in October 2012. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces, or if preexisting such service, was aggravated therein. Establishing direct 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). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated 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. However, this presumption is inapplicable in this case because the Veteran did not serve for at least 90 days. The Veteran contends that he developed his current acquired psychiatric disorder as the result of his in-service experiences. Specifically, he reports that as part of his training during his two months of service, he was educated about nuclear warfare systems and that he found this experience traumatizing, triggering his current psychiatric disorder. The Veteran posits that the exposure to this information and his perception that he would be engaging in nuclear warfare during service, coupled with his young age (17) at the time of his enlistment, resulted in his current psychiatric disorder. The Veteran's service treatment records reflect that no psychiatric abnormalities were noted on entrance to service and that in August 1980, the Veteran received disciplinary measures for his perceived lack of motivation, lack of respect for his superior officers, and inhalation of a boot dye (as an improvised recreational drug). At the time it was discovered that the Veteran was using this recreational drug, he reported heavy pre-service drug usage and a pre-service suicide attempt and related hospitalization. He also reported that he was experiencing flashback symptoms related to his pre-service drug usage. A related report completed by one of the Veteran's supervising officers notes that the Veteran was unsuitable for work in nuclear weapons systems. The Veteran was subsequently referred for mental health treatment, and he was diagnosed with an "inadequate personality" and recommended for discharge. The Veteran was discharged in August 1980 pursuant to the trainee discharge program, and related documents reflect that he was deemed to be mentally unstable and therefore unfit for service. The Veteran has been incarcerated on numerous occasions since his discharge from service, and according to the Florida Department of Corrections, he has received related medical treatment dating back to 1981. Among these submitted records is an April 2008 record reflecting the Veteran's treatment for self-inflicted injuries; consent forms reflecting the Veteran's consent to be administered psychiatric medications in May 2008 and August 2010; a February 2009 record reflecting that the Veteran has been enrolled in a mental health treatment program since June 2008; and a January 2010 treatment record. The January 2010 treatment record reflects a diagnosis of "SCPT" which the Board understands to mean, "schizophrenia, chronic paranoid type," with the treatment provider adding "etiology unknown but appears to have been triggered by his experiences as an adolescent, presumably after entering the military." In the VA psychologist's October 2012 medical opinion, he explained: The behavior the Veteran exhibited during service was less likely than not symptoms, or the early stages, of his currently diagnosed psychiatric disorder.... It is documented in the Veteran's service records that the Veteran reported having been addicted to drugs prior to his enlistment in the military. The behavior he exhibited during his approximately two months of military service, which, according to service records, consisted of sniffing black boot [dye], displaying a poor attitude toward authority figures, displaying an attitude of disrespect for corrective procedures, reporting flashbacks from his pre-enlistment PCP abuse (for which he was reportedly hospitalized), more likely than not reflected his diagnosed, pre-existing Personality Disorder, and less likely than not reflected symptoms or the early stages of his later diagnosis of Schizophrenia. Symptoms of Schizophrenia include, predominantly, hallucinations, delusions, and thought disorder, none of which were documented during his military service. The prodromal (i.e., early) phase of Schizophrenia consists of odd behavior and social withdrawal, which were not documented during the Veteran's military service. In other words, the behavior documented during the Veteran's military service is significantly more consistent with his reported pre-enlistment drug use (and Personality Disorder) than with symptoms or the early stages of Schizophrenia. The treatment note generated by the Florida Department of Corrections on January 22, 2010, is duly noted. However, the opinion offered by its author that "etiology unknown but appears to have been triggered by experiences in adolescence, presumably after entering the military" is merely speculative in nature (as indicated by the word "presumably"). [Parentheses in original.] The Board finds that the criteria for service connection for an acquired psychiatric disorder have not been met. The VA psychologist's October 2012 opinions constitute competent medical evidence because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, the Board finds that the VA psychologist's etiological opinions are credible based on their internal consistency and duty to provide truthful opinions. The Board further finds that the October 2012 VA psychologist's opinions are most probative because he considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's history shows that his behavior in service more likely than not reflected his diagnosed, pre-existing Personality Disorder, and less likely than not reflected symptoms or the early stages of his later diagnosis of Schizophrenia. With respect to the Veteran's diagnosed in-service Personality Disorder, the Board finds that personality disorders are not eligible for service connection, as they are not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Likewise, nothing shows this to have been subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. Consequently, service connection is not warranted for the Veteran's in-service Personality Disorder. The Board further finds that there is not clear and unmistakable evidence showing that the Veteran had an acquired psychiatric disorder (as distinct from a personality disorder) which existed prior to service. 38 C.F.R. §§ 3.304, 3.306. On this question, the Board finds that the October 2012 VA psychologist's reasoned opinion explaining why the Veteran's service treatment records more likely reveal evidence of personality disorder rather than symptoms or the early stages of Schizophrenia, is most probative. Because the Veteran's in-service behaviors reflected a personality disorder rather than an acquired psychiatric disorder, and because no psychiatric abnormalities were noted on entrance to service, the Board finds that the Veteran did not have an acquired psychiatric disorder which preexisted service. As such, the Board need not consider aggravation of same. The Board has considered the treatment note generated by the Florida Department of Corrections on January 22, 2010, diagnosing the Veteran with schizophrenia, chronic paranoid type, and adding, "etiology unknown but appears to have been triggered by his experiences as an adolescent, presumably after entering the military." The Board finds that the January 2010 clinician's opinion is speculative, based on his use of the terms "appears to have been" and "presumably." The October 2012 VA psychologist's determination that the January 2010 opinion is speculative is consistent with the Board's finding. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Morris v. West, 13 Vet. App. 94, 97 (1999); Bostain v. West, 11 Vet. App. 124, 127-28 (1998); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Warren v. Brown, 6 Vet. App. 4, 6 (1993). Consequently, the Board finds that the January 2010 opinion is less probative than the October 2012 VA psychologist's opinion to the contrary. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given). The Board further finds that the Veteran's own statements relating his current acquired psychiatric disorder to his service are not entitled to any probative weight because under the circumstances of this particular case he is not competent to opine on such complex medical disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved); Kahana v. Shinseki, 24 Vet. App. 428 (2011). Since the Veteran's acquired psychiatric disorders and their distinction from personality disorders involve complex medical and psychological questions and the interpretation of medical literature and testing, the Veteran is not competent to render a nexus opinion on those matters. Woehlaert, 21 Vet. App. at 462. Consequently, the Veteran's lay statements asserting a nexus do not constitute a competent medical nexus opinion. Moreover, even if the Veteran's lay nexus opinion were held competent in this case, the Board finds that its probative value is outweighed by the October 2012 VA psychologist's opinions based on his greater medical expertise and ability to interpret treatment records. The most probative evidence of record shows that the Veteran's acquired psychiatric disorder was not incurred in service. Accordingly, reasonable doubt does not apply, and the Veteran's appeal of the issue is denied. ORDER Service connection for an acquired psychiatric disorder other than PTSD is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs