Citation Nr: 1323795	
Decision Date: 07/25/13    Archive Date: 08/06/13

DOCKET NO.  06-36 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho



THE ISSUE

Entitlement to service connection for a psychiatric disability (claimed to have resulted from ingestion of hallucinogens and to be manifested by brain seizure, hallucinations, flashbacks, dizzy spells and memory loss).



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

D. Schechner, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1969 to November 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Boise, Idaho RO.  The Veteran requested a hearing before a hearing officer at the RO, and such was scheduled to be held in January 2007; he later cancelled his hearing request.  In October 2010, the Board reopened the previously denied claim based on the receipt of new and material evidence and remanded the matter for further development and de novo review.  In February 2012 and December 2012, the Board remanded the matter again.


FINDING OF FACT

A chronic psychiatric disability was not manifested in service; a psychosis was not manifested within one year after the veteran's separation from service; and no diagnosed psychiatric disability is shown to be related to the Veteran's service.


CONCLUSION OF LAW

Service connection for a psychiatric disability is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 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 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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 the 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). 

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  November 2004, November 2010, and December 2010 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  The November and December 2010 letters also informed him of disability rating and effective date criteria.  He has had ample opportunity to respond/supplement the record and has not alleged that notice was less than adequate. 

The Veteran's service treatment records (STRs) are associated with his claims file, and pertinent postservice treatment records have been secured.  The RO arranged for VA examinations in June and July 2005.  As will be discussed in greater detail below, the Board finds these examinations and opinions to be adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
  
Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge.  38 C.F.R. § 3.303(b).  Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Certain chronic disabilities (to include psychosis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for psychosis).  38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Veteran's STRs show that the Veteran was hospitalized for drug ingestion, possible LSD.  The narrative summary for this admission indicates that he was hospitalized while on leave the previous month while acting bizarrely and hallucinating; he indicated that he had accepted a drink of wine from a "hippie type" in a park and approximately one hour later he began to "see things".  The treating psychiatrist believed that the Veteran remitted psychiatrically following a course of treatment and he was found fit for full duty.  The diagnosis was acute psychotic episode, secondary to ingestion of hallucinogens, currently in remission.  It was noted that the Veteran had applied, and was accepted, for a hardship discharge on the basis of his wife's emotional problems.  On November 1970 service separation examination, a psychiatric evaluation was normal.  The STRs are otherwise silent for any complaints, findings, treatment, or diagnosis of a psychiatric disability.  

A January 1973 rating decision denied the Veteran's claim of service connection for ingestion of hallucinogens; it was noted that his psychiatric condition was normal at discharge from service.

After the Veteran's separation from service in 1970, the first medical evidence of mental health difficulties was in 2004, or 34 years after separation, when the provisional diagnoses included organic mental disorder, drug induced; and mood disorder, not otherwise specified, with depression and some symptoms of possible bipolar disorder type II.  

On November 2005 neuropsychological evaluation, the Veteran reported symptoms of impaired concentration and memory, confusion, visual hallucinations, brief spatial disorientation, dizziness, and strange body sensations.  His psychological symptoms included mood swings, depression, paranoia, and inability to complete projects.  The examiner noted a history of a motorcycle accident many years earlier resulting in a spine fracture; the Veteran was wearing a helmet and did not recall loss of consciousness.  The Veteran also reported a past history of two years of alcohol abuse about 15 years earlier, and marijuana use mostly on the weekends over the previous 5 years.  Following testing, the exam results were noted to reflect mild brain dysfunction with primary compromise of the left frontal and left temporal lobes.  Given the available history, the evaluator opined that the Veteran's motorcycle accident is the most likely underlying cause, opining that substance abuse generally produces more diffuse damage, thus past alcohol and drug abuse was not likely a significant contributing factor.  [A copy of the accident report from May 1976 is included in the claims file.]

Later treatment records include assessments of organic mental disorder, drug induced; a mood disorder not otherwise specified; and mild brain dysfunction.

On June 2005 VA psychiatric examination, the Veteran reported that he was home on leave in October 1970 when he was given some wine by an individual in a local park.  He stated that he drank the wine and began having hallucinations.  He was hospitalized and described having hallucinations; during the course of the hospitalization, he reportedly had flashbacks, delusions, and hallucinations that decreased over a period of several days.  He was discharged with a diagnosis of probable LSD intoxication.  He was then admitted to the naval hospital with an admission diagnosis of drug ingestion, possible LSD, with complaints of mildly loose associations, visual distortion, and hallucinations; he was treated with psychotherapy and Thorazine, to which he responded well, and he was discharged.  The examiner at that time felt that the Veteran had a total remission and was fit for full duty; the diagnosis was acute psychotic episode secondary to ingestion of hallucinogen, currently in remission.  On the Veteran's discharge physical examination psychiatric and neurological evaluations were normal.  He claimed having difficulties ever since, with occasional confusion and dizziness.  He reported that he did not seek treatment until about 10 years earlier when he reported that he began seeing a naturopath.  He had been seeking VA treatment intermittently since at least 1979 for other problems, although he did not complain about these psychiatric symptoms or seek care until recently.  The examiner noted a February 2001 treatment record in which he complained of "getting off balance and feeling that his head shoots into the air", and an August 2001 record in which he complained of some forgetfulness of unknown origin.  There were no further complaints until August 2004 when he reported flashbacks, a rush sensation, stuttering, and eye twitching intermittently since 1970, with additional complaints of anxiety and memory problems.  On examination, he reported having "seizures", confusion, dizziness, and poor memory; he reported being unable to hold a job since 1970, usually leaving a job after six months because he "loses interest".  He admitted to smoking marijuana on weekends.

Following a mental status examination, the VA examiner opined that there did not appear to be any clear cut Axis I diagnosis related to the Veteran's reports of LSD ingestion.  The examiner noted that, although the Veteran was hospitalized in 1970 for psychosis and possible drug ingestion, he had no intervening care or treatment until the past year.  The examiner noted that there was no documentation of what, if any, drug was ingested, other than the Veteran's self report.  The examiner noted that the Veteran's separation examination included a totally normal psychiatric and neurological examination.  The examiner found no evidence to support the claim that a one time ingestion of an unknown substance in 1970 has any causative relationship with the Veteran's symptoms.  The examiner noted that the Veteran also smokes marijuana and has been taking treatments from a naturopath, both of which could potentially contribute to his current symptoms.

On July 2005 VA neurological examination, the examiner noted the Veteran's history of hospitalization in 1970, and further noted an August 2001 treatment record with complaints of forgetfulness and poor reading comprehension.  The examiner opined that there was a question mark as to whether that was early dementia and consideration was given to referring him for neuropsychological testing and considering a CT scan.  A June 2005 EEG was normal.  The Veteran reported subjective seizure complains and was referred for neurologic evaluation in July 2005.  On examination, the Veteran reported having full-fledged seizures with his hands flying back and forth, not accompanied by loss of consciousness.  He reported that these symptoms had been going on for 6 to 7 years, several times per week.  He reported having hallucinations that began about 10 years prior.  Following a physical examination, the assessment was subjective complaints of hallucinations, flashbacks, memory loss, and seizures with an essentially normal workup including a normal EG.  The examiner noted that the Veteran was concurrently treated for a mood disorder which quite possibly could be the etiology of some of the symptoms.  The examiner opined that, regarding whether or not the symptoms are related to the improbable ingestion of LSD in 1970, the examiner had difficulty finding a direct causal link.  The examiner noted that, in general, flashbacks tend to decrease over time instead of worsen, and most of the symptoms, specifically the self-described seizure activity, had worsened in the past 10 years. The examiner noted that long term psychiatric consequences of LSD ingestion do tend to be related to increased amount of hallucinogen and use of other drugs; the examiner noted that the Veteran's marijuana use while consistent had been relatively mild over the years and that in itself may be contributing to his current symptoms as well.  The examiner opined that it is less likely than not that the Veteran's current symptoms are related to past ingestion in 1970.

In October 2010, the Board reopened the previously denied claim of service connection for a psychiatric disability and remanded the matter to obtain outstanding private treatment records.  The Board remanded the matter again in February 2012 and December 2012, also to obtain the still-outstanding records.

The medical evidence indicates that the Veteran sustained a second back injury in March 2011 after falling down an elevator shaft eight feet and landing on his back, hitting his head.

Additional VA and private treatment records through April 2013 include assessments of alcohol abuse, mood disorder, organic brain syndrome, dizziness and giddiness, and other malaise and fatigue, with no further opinions regarding etiology.

A chronic acquired psychiatric disability was not noted in service or clinically noted post-service prior to 2004.  The acute symptoms noted in service when the Veteran ingested a hallucinogen resolved, and were not noted on service separation examination.  Consequently, service connection for a psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted.  See 38 C.F.R. § 3.303(a)(b).  As a psychosis was not manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 do not apply. 

The Board finds that the June and July 2005 VA examiners' reports concluding that the Veteran does not have a current psychiatric or neurological disability related to service warrant substantial probative weight, as they reflect consideration of the findings and statements made by the Veteran throughout the pendency of this claim, and explain why the complaints and findings do not support a nexus between any diagnosis of a psychiatric disability and the Veteran's service.  

The Board finds that the service and postservice treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a current psychiatric disability related to service.  Highly probative medical evidence (2005 VA neurological and psychiatric opinions that explain rationale and cite to clinical data) weighs heavily against a finding that any current psychiatric disability is related to the Veteran's service (to include as due to ingestion of hallucinogens therein).  

Regarding the Veteran's own opinion that he has a psychiatric disability that is due to his service, he is a layperson (with no demonstrated or alleged expertise in determining a medical nexus); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion.   Therefore, his opinion in this matter has no probative value.  

The Board recognizes that 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, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007).  That is, competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

Here, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion regarding a psychiatric diagnosis (and its relationship to a known event in service).  A mental disability is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise.  Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372, 1377.  The etiology of a psychiatric disease is a matter of medical complexity.  The Veteran is a layperson and does not cite to any supporting medical opinion or treatise evidence.  His opinion in this matter has no probative value..  

Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for a variously diagnosed psychiatric disability, and the appeal in the matter must be denied.


ORDER

Service connection for a psychiatric disability is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs