Citation Nr: 1325619 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-13 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from September 1950 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a March 2013 decision, the Board denied entitlement to service connection for PTSD and remanded the issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD, for additional development. The case has now been returned to the Board for review. Subsequent to the most recent supplemental statement of the case, additional evidence has been received. The Veteran has submitted a written waiver of initial RO consideration of the evidence. This evidence thus is accepted for inclusion in the record on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT An acquired psychiatric disability, other than PTSD, did not manifest in service and psychosis was not manifest within one year thereafter, and the most persuasive and credible evidence of record shows that the Veteran's psychiatric disability was not causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability, other than PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). The April 2005, July 2005, and March 2006 letters cumulatively satisfied the duty to notify provisions. In addition, the March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the March 2006 letter was sent after the initial adjudication of the Veteran's claim. However, the Veteran's claim was readjudicated by the January 2011 supplemental statement of the case. Therefore, any defect in the timing of the notice of this information was harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In addition, following the Board's August 2011 remand, updated VA medical treatment records were obtained and considered by the RO in the July 2012 supplemental statement of the case. The record shows that the Veteran has received Social Security's Supplemental Security Income from 1996, which would indicate that he was likely receiving age-related benefits as he was approximately 65 years old at the time. The Social Security Administration (SSA) inquiry also indicated that the Veteran's disability had its onset in 1980. Any records associated with the Veteran's receipt of Social Security benefits beginning in 1980 would not to his claim for service connection for a psychiatric disability because the Veteran stated that he did not receive mental health treatment prior to 2000. The Board therefore concludes that additional action with regard to any such records is not required. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). VA examinations were provided in October 2005, June 2010, December 2011, and April 2013. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The October 2005 and June 2010 VA examination reports are adequate in terms of the diagnoses and findings provided; however, the examiners did not provide opinions regarding the etiology of the Veteran's psychiatric disability. In the March 2013 remand, the Board requested that another VA examination be provided. The Board found the December 2011 VA examination report and opinion to be adequate with respect to the diagnosis of schizophrenia; however, the evidence of record included other diagnoses that were not addressed. The April 2013 VA examiner reviewed all of the evidence of record, examined the Veteran, and ultimately provided the diagnosis of schizophrenia. The examiner provided a negative nexus opinion as to whether any psychiatric disability was related to active service and provided a well reasoned rationale for the opinion. Therefore, the examination was adequate and the Board's remand directive was substantially completed. See Stegall, id.; see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand is not required under Stegall where there was substantial compliance with remand directives). There is no indication in the record that any additional evidence, relevant to the issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Veteran appeared at a local hearing before a Decision Review Officer (DRO) in December 2007. 38 C.F.R. § 3.103(c)(2) (2012) requires that the DRO who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the DRO asked questions to ascertain the extent of any in-service event or injury and whether any current psychiatric disability is related to service. To the extent that there is any defect with the hearing, the Veteran has demonstrated actual knowledge with respect to the issue on appeal and the evidence to substantiate his claim. He submitted private medical records and noted that he did not seek psychiatric treatment until the 2000s. He obtained a private medical opinion with respect to the etiology of his claimed psychiatric disability and provided contentions with respect to the relationship between his psychiatric disability and active service. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and to the extent that the DRO did not expressly state the elements of the claims that were lacking to substantiate the claim of entitlement to service connection for an acquired psychiatric disability, such error is harmless as his representative stated what had to be shown and both the Veteran and representative demonstrated actual knowledge of what was needed to prove the claim. Service Connection Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for psychosis may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under VA law and regulations, a personality disorder is not a disability under the law, it is considered a constitutional or developmental abnormality; and as such, it may not be service-connected. See 38 C.F.R. §§ 3.303(c) (congenital or developmental defects, such as personality disorders and mental deficiency, are not diseases or injuries within the meaning of applicable legislation); 4.127. Evidence of additional disability resulting from a mental disorder that is superimposed upon a congenital or developmental defect such as a personality disorder during service may be service-connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The service treatment records are absent for any notations or documentation related to a psychiatric disability. The July 1954 separation report of medical examination shows that the Veteran's psychiatric condition was clinically evaluated as normal. The report noted abnormalities consisting of a deviated septum to the left, scars, and defective vision. The medical evidence shows that the Veteran did not seek psychiatric treatment until the 2000s, many years after his separation from active service. The Board does note that private medical records dated in the 1990s describe the Veteran as "unusual" and "bizarre." The private medical records also characterize the Veteran as a poor historian. A February 1994 record noted that the Veteran never functioned well and had menial jobs. The June 1997 private medical record noted that the Veteran never had a steady job. In various statements from the Veteran, he explained that he believed his psychiatric disability was related to his period of active service. He stated that his mother and brother said that he was more anxious after service than he was before service. He stated that he first began to experience seeing visions and hearing voices years after his separation from active service in 1963. He has stated that he experienced stressors during active service, to include the threat of a Typhoon and an incident in which he was almost hit by a Corsair plane. In other statements, the Veteran stated that he had near death experiences when he was a missionary in Africa, that he traveled the world, and lived in Hawaii. He reported that he worked as a teacher; however, other medical records indicate that the Veteran never had a steady job. He reported numerous experiences to which he related his psychiatric disability to include Typhoon incident and Corsair plane accident during active service. He also listed numerous traumatic experiences after service to include dealings with the mafia in Hollywood, an accident on the Los Angeles freeway, and being under house arrest in Baghdad, Iraq. He reported that he had agitated and disorganized behavior, impulsivity, aggression, fear, helplessness, numbing of general responsiveness, nightmares, and paranoia, anxiety, depression, extra sensitivity, hostility, impaired relationships, from 1951 to the present. He stated that he did not hear voices or experience visions until 1963. The September 2001 VA treatment record reveals that the Veteran had no psychiatric history and that he began to hear voices in 1963, years after his separation from active service. The subsequent VA treatment records show diagnoses of schizotypal personality disorder, schizophrenia, anxiety disorder, and depression. The Veteran was provided a VA examination in October 2005. The Veteran stated that he had stressors consisting of when the tail hook of a plane which was landing broke. He also said that he was involved in a very large typhoon in the South China Sea and believed he would not get out of it. With respect to the history of his present illness, the Veteran stated that he requested a psychiatric evaluation in September 2001 because he believed that there was something wrong with him. The examiner noted that the Veteran has been diagnosed with schizotypal personality treats and schizophrenia. It was noted that the Veteran experienced hallucinations, anxiety, and depression. The Veteran stated that he lived all over the world including, but not limited to Alaska, the Middle East, St. Thomas, Europe, and Hawaii. The examiner indicated that some of the Veteran's historical account may not be accurate. The Veteran also reported that he earned a bachelor's degree and a master's degree in Education in 1989 from Northern Arizona University. He also stated that he was a missionary in Africa and taught kindergarten through junior college in Hawaii, California, and Arizona. Again, the examiner noted that the Veteran's historical account may be inaccurate. The diagnoses were listed as Anxiety disorder, not otherwise specified on Axis I and Schizotypal personality disorder on Axis II. The examiner noted that the Veteran did appear to be quite anxious and it was likely that his anxiety increased as a result of the death of his parents and the recent rejection by his only surviving sibling. The examiner opined that it was likely that the Veteran has had schizotypal symptoms since he was a child because throughout his life, by his own report, he has been unable to get along socially. The actual psychotic aspect of his personality disorder may have appeared at a later date. In a December 2007 letter, the Veteran's private psychologist, Dr. W.P. Bedell, stated that he saw the Veteran for psychological counseling off and on for the past year, most intensely for the past three months. Currently, he suffered from anxiety and depression which probably had a combination of causes including difficult financial issues, uncertainty about the future, and a decline in function. The responses to his immediate situation were embedded in strata of more long term traits which have complicated his life. In particular, through much of his later life, he was subjected to hearing voices and seeing visions of an unusual nature. They were not so extensive as to qualify him for a psychotic diagnosis, but they were unsettling and mystifying in a way which has made it difficult for him to live a conventional life. A second trait was his tendency to act impulsively and make rash life changing decisions without full consideration of the consequences. This made for an interesting life story, but one that is unconventional and lacking in consistency. The culmination of having these traits was that he did not develop the financial or personal resources to make for a settled period now at the latter part of his life span. Dr. Bedell opined that: ". . . These traits could very well have had their seeds in traumatic experiences he had while in the Navy in the 1950s." The June 2010 VA examination report shows that the Veteran was diagnosed with Schizophrenia, undifferentiated on Axis I. He was also diagnosed with cluster A traits on Axis II. The examiner noted that the Veteran met the criteria for diagnosis for schizophrenia. The Veteran was provided a VA examination in December 2011. A diagnosis of schizophrenia was listed. The examiner indicated review of the claims file. The examiner opined that: "... The Veteran's current diagnosis less likely than not had its onset during the service or is causally and etiologically related to service." The examiner noted that review of records noted diagnosis and treatment years after military enlistment. The examiner noted that the Veteran noted feeling a little odd; however, he did not note difficulties with hearing voices until years after his discharge. The Veteran was provided a VA examination in April 2013. The examiner reviewed the claims file and listed a diagnosis of schizophrenia. The examiner stated that there were many complicating factors in the Veteran's case. The pertinent records contributing to the opinion included the VA examination of 2005 wherein it was reported that the Veteran had a psychological evaluation many years after discharge and that the records in 1994 labeled the Veteran as rather strange and someone who never seemed to functional well in life. The VA examination of 2005 reported anxiety disorder and a schizotypal personality disorder (likely since the Veteran was a child). It was noted that there was a psychiatric evaluation in 2001. The examiner noted that per the DSM-IV, the one symptom of schizotypal personality disorder is excessive social anxiety. The Veteran's private physician, Dr. Bedell, noted treatment for anxiety and depression and reported that the traits had their roots in the traumatic experiences in the 1950s. The examiner noted that it was not clear as to whether Dr. Bedell was referring to a personality disorder or something else. In the December 2011 VA examination, the Veteran was only diagnosed with schizophrenia. The VA examiner at the time noted treatment for the past ten years and that the diagnosis and treatment occurred years after the military. In spite of the report of experiencing a typhoon in July 1953, there was no diagnosis of PTSD and the Veteran did not identify any stressors to the VA examiner. The VA examiner concluded that the Veteran's schizophrenia was not related to service. The Veteran was discharged in 1954 and not evaluated for many years. There is no objective evidence linking the Veteran's later diagnosed conditions until many years after service. The April 2013 VA examiner explained that Dr. Bedell's evidence was not clear while the VA examiner's opinion was clear in reporting the opinion that the Veteran's condition was not related to service. The examiner stated that although diagnosed in the past, there was no current evidence to confirm a personality disorder and this was confounded by the potential relationship between a schzotypal personality disorder from Axis II with schizophrenia from Axis I. The evidence reviewed does not support the existence of a personality disorder at this time. Given all these complicating factors, the examiner could not conclude that there was a nexus linking the Veteran's current psychiatric condition to this military service. The examiner opined: ". . . it is less likely than not that any psychiatric disability (other than PTSD) had its onset in active service or is otherwise causally or etiologically related to the vets active service." In a November 2007 statement, L.R. stated that he knew the Veteran since 1948 and they had a 60 year friendship. In a September 2005 statement, a friend of the Veteran, J.G., stated that he served with the Veteran on the USS Pine Island. He stated that he remembered that he always thought the Veteran had some sort of problem because he was always excited and nervous acting. He stated that the least bit of pressure on him and he would get excited and start dancing around. J.G. stated that, in his opinion, the Veteran could not take the pressure and did not remember the Veteran ever being completely at ease. He stated that his actions were not that of the average person. In another September 2005 statement, J.H. stated that he served aboard the USS Pine Island from January 1953 until September 1955. He stated that the Veteran seemed to have problems and he did not fit in with the other members of the division. J.H. stated that the Veteran acted hyper and uptight. J.H. stated that the cruise in 1953 was stressful due to several factors to include a Typhoon and the China Formosa standoff. In an April 2013 statement, the Veteran's brother, P.M., stated that the Veteran has always been a little hyper, but there were changes after he returned from active service. P.M. stated that after the Veteran returned from service, he was more hyper, on edge, high strung, temperamental, and had a subdued or reduced personality. P.M. stated that the Veteran developed a mean streak, had grand illusions of himself along with a short fuse, self obsession, choking spells, asthma, was mentally in a false world with fantasy and illusions, narrow minded and self-destructive. In this case, the Board finds that the most probative, competent, and credible evidence does not relate any current psychiatric disability, other than PTSD, to the Veteran's active service. In this regard, the Board finds that the April 2013 VA examiner's opinion is the most probative evidence. The examiner reviewed the entire claims file including lay statements, the Veteran's reports of traumatic experiences during active service, and the medical evidence, and provided a negative nexus opinion with a well supported rationale. As the examiner's conclusion followed an extensive examination of the Veteran and claims file review, it is accorded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). On the other hand, Dr. Bedell's opinion is afforded little probative value. First, the Board notes that Dr. Bedell opined that: "These traits could very well have had their seeds in traumatic experiences he had while in the Navy in the 1950s." The use of the words "could have" is considered speculative language. The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In addition, Dr. W.P. Bedell did not discuss whether he believed that the Veteran's traits were part of a personality disorder as opposed to another diagnosed psychiatric disability. Again, with respect to a personality disorder, personality disorders are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. § 3.303(c). The Board recognizes the Veteran's belief that his psychiatric disability is related to his period of active service. In addition, he has submitted lay statements from his brother, fellow serviceman, to demonstrate that he was more anxious after service than before service and that he acted strange during his period of active service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of a psychiatric disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran and the lay persons are competent to provide statements related to lay-observable symptoms, they are not competent to diagnose a psychiatric disability or relate the Veteran's disability to his period of active service as diagnosing a psychiatric disability requires medical and diagnostic testing and identifying a medical etiology for a condition requires medical training. Further, as noted above, the Board attributes great value to the VA examiner's opinion as the examiner reviewed the claims file, to include the lay statements, examined the Veteran, and provided a negative nexus opinion with supporting rationale. Further, the record raises concern as to the Veteran's credibility and reliability as an accurate historian-particularly with respect to his reports that his psychiatric symptoms had their onset in active service. Although the Veteran stated that he has had certain symptoms since active service, and has submitted lay statements with respect to his symptoms, the service treatment records do not reflect any psychiatric symptoms or a psychiatric disability. The separation report of medical examination shows that the Veteran's psychiatric condition was clinically evaluated as normal. Further, the Veteran has been noted to be an unreliable historian in the private medical records and by the April 2013 VA examiner. Indeed, the Veteran has provided many statements regarding his travels all over the world, including to Africa and the Middle East. He has stated that he worked as a teacher for many years. However, other private medical records indicated that the Veteran did not function well in life and only held menial jobs. The nature of the Veteran's psychiatric disability and his questionable historical accounts does not render the Veteran believeable as to the onset of his symptoms. With respect to continuity of symptomatology, the Veteran has stated that he believes his problems began during active service. In regard to his reports of chronic symptoms since service, the Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) only applies to those conditions recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Psychosis is recognized as a chronic condition. 38 C.F.R. § 3.309(a). Nevertheless, while the Veteran is competent to state that he had a psychiatric disability since active service, the Board finds that the Veteran is not credible with respect to his reports related to onset or continuity of symptoms since active service. First, the service treatment records are absent for any indication of a psychiatric disability. The Veteran complained of other ailments, but not psychiatric symptoms. Further, while the Veteran has described that he had symptoms such as anxiety since active service; the record reflects that the Veteran is an inaccurate historian. Thus, the Board finds that the Veteran is not credible with respect to the onset of his symptoms. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) (citations omitted) (noting that "definitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as 'the quality or power of inspiring belief. . . .' Credibility . . . apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence."). In light of the above, service connection based on continuity of symptomatology is not warranted. After considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disability, other than PTSD, because the most persuasive and credible evidence of record is against a finding of continuity of symptoms since service and against a finding that there is a nexus between a current psychiatric disability and an event, injury, or disease occurring in service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a psychiatric disability. Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply. Therefore, the Board concludes that service connection for an acquired psychiatric disability, other than PTSD, is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). Finally, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In this case, there is no competent and credible evidence of psychosis to a compensable degree within one year of separation from service. Therefore, service connection on a presumptive basis is also not warranted. ORDER Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs