Citation Nr: 1324341 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-20 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder, (PTSD). 2. Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at an RO formal hearing in April 2007. A transcript of those proceedings has been associated with the Veteran's claims file. In March 2011, the Board determined that new and material evidence sufficient to reopen the Veteran's service connection claim for an acquired psychiatric disorder had been received. In that same decision, the Board remanded the claims on appeal. In this decision, the Board is adjudicating the claim of entitlement to service connection for an acquired psychiatric disorder, but must again remand the Veteran's service connection claim for a bilateral foot disorder to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. The credible evidence of record indicates the Veteran has been diagnosed with depression, polysubstance dependence disorder, and antisocial personality disorder. He has not received a diagnosis of PTSD at any point during the pendency of the appeal. 2. A personality disorder is not a disease or injury for which VA compensation benefits may be awarded. 3. An acquired psychiatric disorder was not present until many years after service, and there is no competent evidence that any such disorder is related military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this decision, letters dated in March and June 2006 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection for an acquired psychiatric disorder, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records relevant to this claim, service personnel records, and VA treatment records and examination reports. Additionally, the prior March 2011 remand instructions were substantially complied with concerning the claim for service connection for an acquired psychiatric disorder. Instructions pertinent to the claim being decided included obtaining additional VA treatment records and scheduling the Veteran for an appropriate VA examination concerning his claim. In response, the RO obtained current VA treatment records through March 2011, which have been associated with the Veteran's claims file. The Veteran was also provided a VA psychiatric examination in May 2011. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was afforded a hearing before a Decision Review Officers (DRO). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the DRO who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. During the hearing, the DRO specifically clarified the issue on appeal. Additionally, throughout the hearing, the DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. The hearing focused on the elements necessary to substantiate the claim and testimony relevant to those elements was provided. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the April 2007 DRO hearing. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway; Dingess; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran asserts he has a psychiatric disorder as a result of the traumatic events that occurred while he was in the military. Establishing 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). Service connection for PTSD, in particular, requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). However, as discussed below, since the Veteran does not have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), any further discussion of these provisions is unnecessary. Personality disorders are not diseases or injuries under VA regulations and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c). Nevertheless, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2012); Carpenter v. Brown, 8 Vet. App, 240 (1995); Beno v. Principi, 3 Vet. App. 439 (1992). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran's service treatment records failed to reflect any reference to any psychiatric complaints or disorders. His service personnel records reflected his assignments to Saudi Arabia and Germany, and listed his military occupational specialty as a supply clerk. In his statements and hearing testimony, the Veteran provided stressor statements asserting that his psychiatric symptoms began in service and were caused by his stressful experiences during service, including gathering dead bodies, providing aid for injured children, seeing boys who were unwilling to fight being tortured, and learning that his ex-wife had miscarried their twin babies. A letter submitted by the Veteran's ex-wife chronicles her recollection of the stressful experiences that the Veteran reported to her were occurring during service, including the miscarriage of their twins, and the psychological changes she witnessed in him both during service and after his discharge. A letter from the Veteran's friend reflects her observation of the Veteran's current psychological symptoms, including experiencing nightmares and depression. The Veteran first presented for psychiatric treatment in January 1993. However, the VA treating physician determined the Veteran did not suffer from a psychiatric disorder, including PTSD. However, a July 1993 VA mental disorders examination report suggested the Veteran may have PTSD. The report notes the Veteran's recitation of several in-service stressors, including his involvement in fire fights, his building being hit by debris from a scud missile, seeing a child with an arm that had been blown off by an explosive, and witnessing/hearing of boys being shot because they refused to fight. The examiner remarked the Veteran "appears to satisfy the criteria needed for a diagnosis of [PTSD]. No subsequent medical record, however, reflects a diagnosis of PTSD. The Veteran was first diagnosed with a psychiatric disorder in January 2005 when he was diagnosed with depression, not otherwise specified. The diagnosis of depression was confirmed in VA treatment records dating through March 2011. The Veteran's VA treatment records also list a history substance dependence. As stated, however, these records do not provide a diagnosis of PTSD at any point during the pendency of this appeal. These records also do not include medical opinions linking any specific psychiatric disorder to the Veteran's military experiences. In March 2011, the Board remanded this appeal to have the Veteran undergo a VA psychiatric examination. At the May 2011 VA psychiatric examination, the Veteran asserted that his psychiatric disorder was due to exposure to stressors in service, and he has suffered from psychiatric disorders since service. The examiner provided diagnoses of polysubstance dependence disorder and anti-social personality disorder. Notably, the examiner did not provide diagnoses for either PTSD or depression. The examiner opined that the diagnosed disorders were not caused by the Veteran's military service. Further, the examiner determined there were no other mental disorders caused by the Veteran's military service. On review of the record, the Board finds that the preponderance of the evidence is against a finding that any acquired psychiatric disorder was incurred in service. As an initial matter, there is no diagnosis of PTSD that conforms to DSM-IV criteria. In the absence of that, there can be no valid claim for service connection for that disability. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, service connection is not warranted for PTSD. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In regards to the remaining diagnosed disorders (depression, polysubstance dependence disorder, and antisocial personality disorder), the first element of service connection - medical evidence of a claimed disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this case, the Board notes at the outset that personality disorders are deemed to be congenital or developmental abnormalities and are not considered disabilities for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Thus, service connection for antisocial personality disorder cannot be considered. Furthermore, no compensation shall be paid if the disability is a result of a veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §1131. Service connection is not precluded if alcohol abuse is secondary to a service-connected disability. Even if a veteran has a service-connected disability, however, service connection would be precluded for the alcohol or drug abuse disability if it is due to willful action rather than the result of the service-connected disability. Allen v. Principi, 237 F.3d 1368, 1376, 1378 (Fed. Cir. 2001). Of the remaining diagnoses (depression and polysubstance dependence disorder), there is no evidence that the Veteran was treated for either condition in service. Moreover, following service there is no clinical evidence of any treatment or other psychiatric complaints until January 2005. Even when the Veteran underwent psychiatric evaluation in May 2011, there has been no finding that the Veteran's psychiatric conditions resulted from any incident or disease occurring in service. On review of this and the remainder of the medical records on file, the preponderance of the competent evidence is against a finding that an acquired psychiatric disorder is related to service. The only VA examination medical opinion on this matter is ultimately against a finding supportive of the Veteran's claim. In fact, the May 2011 VA examiner ultimately concluded that these conditions were not caused by the Veteran's military service. The issue of the etiology of the Veteran's diagnosed acquired psychiatric disorders is beyond the competency of the Veteran as a lay person because it requires medical knowledge and training. In this case, the medical evidence as discussed above does not link any diagnosed psychiatric disorder to service or to a service-connected disability. The Board does not question the Veteran's sincerity that he believes he has such psychiatric disorders that resulted from service. As a lay person, however, he is not competent to establish a medical diagnosis or show a medical etiology merely by his own assertions as such matters require medical expertise. He is not professionally qualified to offer a diagnosis or suggest a possible medical etiology. In light of the foregoing, because the preponderance of the evidence is against the claim, service connection must be denied for an acquired psychiatric disorder. ORDER The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. REMAND In May 2011, in compliance with the Board's prior March 2011 remand directives, the Veteran underwent a VA examination to determine the nature and etiology of his bilateral foot disorder. During the examination, the Veteran contended he was treated for dehydration and hypothermia secondary to cold exposure while stationed in Germany, and it appears current findings were considered consistent with this history. Records of such a cold injury in service should be sought. Accordingly, the case is REMANDED for the following action: 1. The RO or AMC should contact the National Personnel Records Center (NPRC) or any other appropriate agency and request that it conduct a search for any in-patient/clinical records related to the Veteran's treatment for dehydration and/ or hypothermia while stationed in Germany, (February 1989 to December 1990). All development efforts and any negative response(s) should in writing and associated with the claims file. 2. The RO or AMC should also obtain any additional VA treatment records not currently associated with the Veteran's claims file. 3. After conducting any additional development deemed necessary, including obtaining a clarifying medical opinion, readjudicate the claim for service connection for a bilateral foot disorder with consideration of all evidence of record. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his representative a supplemental statement of case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs