Citation Nr: 1324951 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-17 176A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served as a member of the United States Navy, with active service from December 1968 to July 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2005 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (the RO). The Veteran testified at a Travel Board hearing which was chaired by a Veterans Law Judge (VLJ) at the RO in April 2009. A transcript of the hearing has been associated with the Veteran's VA claims folder. The VLJ who conducted the April 2009 hearing is no longer employed by the Board. The Veteran was informed of this in a February 2011 Board letter and was provided the opportunity to exercise his right to testify at a new hearing before another VLJ. In a March 2011 response the Veteran requested another hearing. In February 2012, the Veteran subsequently withdrew that hearing request. 38 C.F.R. § 20.704(e) (2012). Accordingly, the request has been withdrawn. In December 2012, the Board denied the issue of entitlement to service connection for PTSD and remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD for an additional VA examination and opinion. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder due to or aggravated by active service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2005 and September 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The September 2007 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records and Social Security Administration (SSA) records have been associated with the claims file. All identified and available treatment records have been secured. While the Veteran has identified additional VA medical records dated in 1973 or 1974, the RO has determined that those records are unavailable and all efforts to obtain these records had been exhausted. In various letters, the Veteran and his representative were apprised as to the efforts made to obtain these records and their unavailability. The Board finds that additional efforts to obtain these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the Board notes that the Veteran was provided VA examinations in September 2009 and February 2013. The examiners determined that there was no current diagnosis of PTSD and the only diagnosable disorder was a personality disorder. As will be discussed in greater detail below, the examiners' opinions were based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and an objective psychiatric examination. The Board, therefore, finds the VA examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for an acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the September 2009 and February 2013 VA examinations, the offer of an additional Board hearing, association of VA treatment records dated from September 2007 to February 2012 within the electronic claims file (Virtual VA), and subsequent adjudication of the claim, the Board finds that there has been substantial compliance with its June 2009, April 2011, and December 2012 remand directives to the extent possible under the circumstances. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Claim for Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Personality disorders are not disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110, 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). a) Factual Background In this case, the Veteran contends that he has a psychiatric disorder due to his experiences in military service. The Veteran's service treatment records do not indicate any complaints, treatment, or diagnoses of PTSD or other acquired psychiatric disorder, including both his December 1968 entrance examination and July 1970 separation examination. In a June 1970 in-service psychiatry note, the Veteran was evaluated because he refused to obey orders as he wanted to apply for status as a conscientious objector. Upon examination, the diagnosis was hysterical personality. After service, a VA examination report dated in August 1982 included a normal psychiatric assessment. In February 2004, the Veteran reported feeling down, depressed, or hopeless on a depression screening; he was later found by a physician not to be depressed. A July 2004 VA progress note indicated a diagnosis of depressive disorder; another note dated the same day indicated a possible diagnosis of PTSD. A VA depression screening in December 2004 was normal. A March 2005 VA group psychotherapy note indicated a diagnosis of major depressive disorder, recurrent. During an April 2005 SSA evaluation, the Veteran reported chronic depression and back pain resulting from spinal injury a few years prior. He claimed that his problems with depression began in his early 20s when he had a "breakdown" and intensified following the onset of more severe back pain about two years ago. He reported outpatient psychiatric treatment at VAMC Louisville in 1973-1974 and Indianapolis from 2005 to present. After a mental health examination, the assessment was major depressive disorder, single episode, chronic, mild severity and cannabis abuse. VA progress notes dated from January 2005 to January 2006 include multiple diagnoses including major depressive disorder in March 2005, personality disorder with mixed features in April 2005, and adjustment disorder with mixed features in April 2005. In a January 2005 VA progress note, the Veteran reported he was "getting depressed and angry again" and required psychiatric evaluation. In a February 2005 VA progress note, the Veteran reported he had a "breakdown" when he came back from Vietnam and was seen once at the VA Medical Center (VAMC) Louisville in 1973. In a January 2006 VA outpatient discharge note, the Veteran reported he has experienced anger and depression since he came back from Vietnam. The Veteran was discharged from outpatient therapy due to non-compliance. The diagnoses were adjustment disorder, nicotine dependence, pain disorder associated with general medical condition, and rule out PTSD. A VA depression screening in December 2007 was negative. During a September 2009 VA examination, the examiner found the Veteran did not endorse any significant symptoms of mental illness. The symptoms which are noted, such as avoiding reminders of Vietnam, are not impairing function, per his report. He exhibited symptoms consistent with a cluster B personality disorders, specifically narcissistic and histrionic traits. The assessment was no diagnosis on Axis I and cluster B traits on Axis II. During a February 2013 VA examination, the examiner determined that the Veteran does not have PTSD, but carried a diagnosis of personality disorder not otherwise specified, cannabis dependence, and substance induced mood disorder. The examiner found that the Veteran's enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is attributable to his personality disorder. The Veteran's history of marijuana use beginning prior to service and on-going daily use is attributable to his diagnosis of cannabis dependence. His reported symptoms of mood lability are attributable to his daily use of marijuana and diagnosis of cannabis dependence. After a mental status evaluation, the examiner determined that the Veteran is not experiencing psychiatric disorders due to his active service. He also does not experience PTSD. The Veteran is experiencing a personality disorder with cluster B traits, which likely existed prior to his service and was described as "hysterical personality" during his active service. Additionally, the Veteran is experiencing cannabis dependence and substance induced mood disorder. The Veteran's post-service diagnoses of depression and adjustment disorder were likely the result of cannabis dependence/substance induced mood disorder and/or his personality disorder with cluster B traits. b) Analysis Initially, the Board notes that the Veteran was diagnosed during active service with a hysterical personality disorder and that the February 2013 VA examiner also diagnosed a personality disorder. However, to the extent that a hysterical personality disorder or any other personality disorder currently exists, service connection cannot be granted therefore. As noted above, personality disorders are considered to be congenital or developmental abnormalities and are not considered to be disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). In addition to the diagnosis of a personality disorder, the claims file also included diagnoses of depression and an adjustment disorder. Accordingly, the first element of service connection is met. Cuevas, 3 Vet. App. 542. However, evidence of a present condition is generally not dispositive of a claim for service connection, absent some competent linkage to military service. Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992). As stated previously, 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). The Board acknowledges that service connection may be possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. However, in this case, the evidence does not show the presence of a superimposed psychiatric disability during service. On the contrary, the earliest medical evidence of an acquired psychiatric disorder dates from July 2004, more than 30 years after discharge from service. Though the Veteran has reported multiple times of a "breakdown" after service, there is no objective evidence mental health treatment prior to July 2004. The passage of many years between discharge from active service and the medical documentation of a claim disability is evidence against a claim of service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board notes that there is no competent medical opinion supporting his contention of depression due to active duty. During an April 2005 SSA evaluation, the Veteran reported chronic depression resulting from spinal injury a few years prior and that his problems with depression started in his early 20s. At that time the Veteran made no reference to his military service or to any mental health problems related to service. Furthermore, the February 2013 VA examiner opinioned that the Veteran's post-service depression and adjustment disorder were not related to active service, but were the result of the Veteran's cannabis abuse. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). In this case, there is no dispute that Veteran is competent to describe symptoms related to a psychiatric disorder because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (stating that '[S]ometimes the layperson 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.'). To the extent that the Veteran contends that a medical relationship exists between his current disability and service, the Board again acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's psychiatric disorder and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Here, while the Veteran is competent to describe his in-service and current symptoms, the Board accords his statements regarding the etiology of his disability little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the Veteran has offered only conclusory statements regarding the relationship between service and his current disorder. Here, the Board finds that the Veteran does not have the requisite expertise to distinguish between psychiatric disorders or determine the etiology of any acquired psychiatric disorder. While he is capable of reporting symptoms, only a trained medical professional has the requisite expertise to render a diagnosis as to what psychiatric disability the Veteran currently suffers from and the etiology of that disorder. Therefore, the Board places greater weight on the February 2013 VA examiner's opinion as to the Veteran's current psychiatric disability and etiology of any present psychiatric disorder. Given the absence of credible evidence that the Veteran's had a chronic psychiatric disorder in service, the absence of any opinion that the Veteran's current disorders are related to service, and competent medical opinion that they are not likely related, the Board must find that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder on any theory of entitlement. Consequently, the claim must be denied. As the evidence in this case preponderates against the claim, the benefit-of-the-doubt rule does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs