Citation Nr: 1324910 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-08 984 ) 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. REPRESENTATION Veteran represented by: John V. Tucker, Attorney at Law ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran had active duty service from May 1987 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for anxiety and depression. The Board observes that the February 2011 statement of the case and April 2012 supplemental statement of the case recharacterized the issue as bipolar disorder (claimed as anxiety disorder with depression). Additionally, the private and VA medical evidence of record reflects various mental health diagnoses, including but not limited to posttraumatic stress disorder (PTSD), bipolar II disorder, depression, major depressive disorder, cyclothymia/dysthymia, and anxiety. The United States Court of Appeals for Veterans Claims (Court) directs the Board to consider all acquired psychiatric disorders that are reasonably encompassed by the evidence of record, including the Veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). As such, the issue on appeal has been recharacterized, as stated above, to encompass all currently diagnosed acquired psychiatric disorders. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a June 2008 letter, sent prior to the initial unfavorable decision issued in January 2009, advised the Veteran of the evidence and information necessary to substantiate her service connection claim as well as her and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised her of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. VA also satisfied its duty to assist the Veteran in the development of her claim. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, and providing an examination when warranted. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159. In this regard, the Veteran's service treatment records, post-service VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. The Veteran was also afforded a VA examination in January 2011 with respect to the issue decided herein. The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as they are predicated on an interview with the Veteran; a review of the record, to include her service treatment records; and a mental examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to undertake to comply with the provisions of 38 U.S.C.A. § 5103, 5013A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of her claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 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 psychosis, 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. According to 38 C.F.R. § 3.384, the term "psychosis" includes a brief psychotic disorder; delusional disorder; psychotic disorder due to general medical condition; psychotic disorder, not otherwise specified (NOS); schizoaffective disorder; schizophrenia; schizophreniform disorder; shared psychotic disorder; and substance-induced psychotic disorder. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection based on continuity of symptomatology only pertains to "chronic" diseases under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this regard, the clinical record in this case does not indicate that the Veteran's psychiatric problems encompass a psychosis and, therefore, the provisions regarding entitlement to presumptive service connection, to include by way of continuity of symptomatology, are inapplicable. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran sought service connection for anxiety disorder with depression according to her June 2008 claim, and further explained in a July 2008 statement that she suffered from those conditions while in service in Europe, but did not receive any help for them. She indicated that she received a Chapter 13 discharge from military service for unsatisfactory performance when she sought help, and she did not discover that she had bipolar disorder until 2000, which was 11 years after her service ended. The Veteran further explained in March 2011 statements that her symptoms first began to manifest while she served in Europe where her reports to her chain of command were routinely dismissed, ignored, or punished. She stated that she was unaware of her initial depression and anxiety diagnoses in service until she saw her military records. Therefore, the Veteran claims that service connection for her acquired psychiatric disorder, variously diagnosed, is warranted. The Veteran's service treatment records include an enlistment report of medical history from February 1987 where no psychological complaints were indicated by the Veteran, and the examiner found the Veteran psychiatrically normal on clinical evaluation. In November 1988, the Veteran complained of nausea for two days, which was noted to have possibly been due to emotions as she was upset regarding her brother, car, and PCS (permanent change of station). The records include a list of "Temporary (Minor) Problems" where stress and anxiety were noted on one date in April 1989. Also in April 1989, the Veteran was referred to psychiatry. It was noted that she had an inability to cope with the sarcasm and indifference towards her. Anxiety levels were raised in prior visits and, at such time, she was tearful and drained. The provisional diagnosis was adjustment difficulty with anxiety and depression. Following a consultation, the Chief of Mental Health Clinical Services (MHCS) ultimately provided a final diagnosis of occupational problem and recommended that the Veteran seek an administrative discharge. It was observed that she had difficulty in adjustment to the Army in the United States and Germany. In the Veteran's Chapter 13 discharge examination in September 1989, she indicated that she had depression or excessive worry. A history of depression was noted. However, she was psychiatrically normal on clinical evaluation and no psychiatric diagnosis was noted on the report of medical examination. Post-service private treatment records include many documents for treatment unrelated to the Veteran's psychiatric disorder. However, a February 2008 psychiatric evaluation from a county mental health provider includes a diagnosis of bipolar II disorder, PTSD, and cannabis abuse. The rest of the county mental health provider's records include one progress note and a list of no-shows for appointments. A SSA consultative psychological examiner indicated in May 2008 that the Veteran had bipolar II disorder based on her review of the evidence received in connection with the Veteran's Social Security claim. VA treatment records include a psychiatric initial assessment in December 2008 for a chief complaint of depression for 6 months, irritability, and weight gain. The Veteran was diagnosed with cyclothymia/dysthymia , rule out bipolar disorder. The VA treatment records also indicate that the Veteran had a break in treatment for the 9 months prior to May 2010. In May 2010, the Veteran was diagnosed with depression. She was variously diagnosed with depression, cyclothymia/dysthymia, major depressive disorder between May 2010 and April 2012. The Veteran was afforded a VA examination in January 2011 to clarify her diagnosis, and determine whether her current acquired psychiatric disorder was related to service. The VA examiner obtained a history, conducted an examination, reviewed the file and medical records, and diagnosed the Veteran with bipolar II disorder. The VA examiner opined and reasoned that the Veteran's current condition was not caused by or a result of the in-service complaints or the same as the diagnosis in service or a progression of the diagnosis in service. In this regard, he found that there was no objective medical evidence to support such as relationship in that the diagnosis generated by the Chief of MHCS during service was Occupational Problem and there is no evidence of an Axis I diagnosis of anxiety, depression, or bipolar II disorder. The examiner further found that there was no objective medical evidence of a chronic condition that developed within close proximity to her discharge of a mental disorder. Rather, he determined, it was more likely that, with her history of family psychiatric disorder and her reported history of childhood emotional and sexual abuse, that her disorder is unrelated to the service and would have manifested itself despite her service experience. As an initial matter, the Board finds that the Veteran has a current diagnosis of an acquired psychiatric disorder. In this regard, such has been variously diagnosed, to include PTSD, depression, major depressive disorder, cyclothymia/dysthymia, and anxiety; however, regardless of the diagnosis, the Board finds that the probative evidence shows that such is unrelated to her military service, to include her in-service psychiatric complaints and treatment. In this regard, the Board assigns great probative weight to the VA examiner's opinion that the Veteran's current psychiatric condition is not caused by or a result of the in-service complaints, the same as the diagnosis in service, or a progression of the diagnosis in service. The VA examiner highlighted the final diagnosis in service, i.e., occupational problem, and notes that there were no other Axis I diagnoses. The VA examiner also considered the Veteran's complete clinical picture in the rationale to support the ultimate finding that the current condition is not caused by, a result of, or a progression of the occupational problem diagnosed in service. Thus, the VA examiner's opinion is the most probative since the Veteran's record was reviewed, and the report contains clear conclusions with supporting data, with a reasoned medical explanation connecting the two. Nieves-Rodriguez, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21Vet. App. 120, 124 (2007). The Board has also considered the Veteran's statements and lay statements from her mother, brother, and former husband that she incurred an acquired psychiatric disorder in service. The Veteran attributes her current psychiatric symptoms to her experiences in service in Germany as detailed above. The lay statements from the Veteran's mother, brother, and former husband submitted in March 2011 described her behavior and affect according to their observations of her during and after service. The Veteran's mother indicated that the Veteran would call home crying and complaining of sadness when she was transferred to Germany, and her mother would spend hours on the phone with her trying to convince her not to take her own life. The Veteran's mother stated that the Veteran gained significant weight while in Germany, going from a size 10 to a size 20. The Veteran's brother stated that the Veteran was positive when she first joined the Army, but later seemed tearful and melancholy when she would call home after her transfer to Germany. He stated that the Veteran did not display symptoms of clinical depression until she was in the Army, stationed in Germany, and diagnosed by Army doctors. The Veteran's former husband stated that he met the Veteran after she returned from Germany, and she told him how she sought help repeatedly through her chain of command but was mistreated and misunderstood. Since competent testimony is limited to that which the witness has actually observed, and is within the realm of his personal knowledge, the Veteran and her family members are generally competent to testify as to their observations regarding her behavior. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Generally, "lay testimony is not competent to prove that which would require specialized knowledge or training. Layno, 6 Vet. App. at 470. However, these lay statements could be sufficient to serve as the required nexus for the Veteran's claim, depending on the facts and circumstances of the claim. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). This is a case where many other factors and circumstances of the Veteran's life, including her childhood emotional and sexual abuse, continuing family difficulties, and underlying physical health problems also have a bearing on the cause of the Veteran's current psychiatric symptoms, as noted and considered by the VA examiner. As such, this is a case where the medical issue is beyond the competence of a layperson. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In addition, the Veteran, her mother, her brother, and her former husband have not demonstrated that they have the training and experience required to identify the etiology of psychiatric conditions, so they are laypersons in this respect. Thus, the Board finds that the Veteran's and her family members' opinions are not entitled to evidentiary weight as they are not competent to provide the opinion in this medically complex case. Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, based on the competent and highly probative VA examiner's opinion, the Board finds that service connection is not warranted for the Veteran's acquired psychiatric disorder. In reaching this decision, the Board considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is thus inapplicable in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs