Citation Nr: 1326176 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-23 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder. 3. Entitlement to a separate initial rating for decreased visual acuity as secondary to service-connected scars, post-trauma to head and face. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to April 1987 and January 1988 to January 1992. This case was previously before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In December 2010 the Board assumed the issue of entitlement to a separate initial rating for decreased visual acuity as secondary to service-connected scars, post-trauma to head and face. In at decision of December 2012, the Board granted a separate initial rating for facial nerve weakness as secondary to service-connected scars, post-trauma to head and face. In December 2010 and December 2012 the Board remanded the issues on appeal for further development. For the issues of entitlement to service connection for PTSD and an acquired psychiatric disorder, as the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran originally filed a claim of entitlement to service connection for PTSD; however, he has been diagnosed with other psychiatric diagnoses in addition to PTSD, including dysthymic disorder. Thus, in December 2010 the Board re-characterized the issue as entitlement to an acquired psychiatric disorder, including PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). After a review of the Veteran's claims file the Board has separated out the issues as characterized on the title page. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to a separate initial rating for decreased visual acuity as secondary to service-connected scars, post-trauma to head and face is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent diagnosis of PTSD. 2. The Veteran's psychiatric disorder, to include dysthymic disorder, was not shown during service or until years after service, and any diagnosed psychiatric disorder has not been related to any verified aspect of the Veteran's period of service. CONCLUSIONS OF LAW 1. The Veteran does not have PTSD that is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012). 2. The Veteran's psychiatric disorder, to include dysthymic disorder, is not due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran by correspondence in November 2006 and March 2007. These letters detailed the elements of a service connection claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO informed the Veteran in the November 2006 and March 2007 letters. VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board remanded in December 2010 and December 2012 in order for the Veteran to be afforded a VA examination. The Veteran was afforded VA examinations for his acquired psychiatric disorder to include PTSD and dysthymic disorder in August 2008, March 2011, and March 2013. The Board finds that these VA examinations were sufficient since they were thorough and contemporaneous examinations of the Veteran that took into account records of pre-service treatment, service treatment records, and records of post-service examination and treatment. Lineberger v. Brown, 5 Vet. App. 367 (1993); Waddell v. Brown, 5 Vet. App. 454 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, the Board finds that for the issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and dysthymic disorder, the December 2010 and December 2012 Board remands requirements were met. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that that in a June 2007 VA memorandum there was a formal finding of a lack of information required to corroborate stressors associated with the claim of service connection for PTSD. The VA memorandum documented all steps taken by the VA including sending the Veteran VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, with the November 2006 and March 2007 VCAA letters; then in May 2009 the RO provided the Veteran with a 30 day follow-up request. However, the Veteran never responded and no stressors were ever obtained and thus, the RO could not further develop the Veteran's claim. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam). No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims herein decided. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claims herein decided. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a veteran's active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he currently has PTSD and an acquired psychiatric disability other than PTSD, to include a dysthymic disorder, related to his active military service. As noted above, the Veteran has never reported to the VA what his claimed in-service stressors were; however, according to the Veteran's claims file, he has reported to doctors that he had a motor vehicle accident in service. The Veteran's service treatment records include an August 1986 Report of Medical Examination for Enlistment for the Reserves and psychiatric was checked as normal; on the Report of Medical History the Veteran checked a box that indicated he had no frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nor nervous trouble of any sort. In November 1988 the Veteran had a motor vehicle accident in which he sustained multiple lacerations of the face; however, there was no notation of any psychiatric condition. In March 2006 the Veteran was seen for an outpatient screening and was diagnosed with alcohol abuse; he stated that he had no psychiatric history. In October 2008 the Veteran had a psych test and was diagnosed with alcohol dependence in remission and marijuana dependence in remission. In a December 2008 Mental Health Order a consult request was ordered for the provisional diagnosis of PTSD with the chief complaint of severe memory loss and post head injury. A December 2008 neurology consult stated that the Veteran had a history of PTSD. In a December 2008 neuropsychological evaluation consult note the Veteran reported that he had significant emotional issues since he served in Saudi Arabia, which included drug and alcohol problems, anger management problems, relationship difficulties, and mood swings. He reported that he was in an in-service motor vehicle accident and had significant cognitive issues since then. He stated that he had a lengthy history of significant alcohol issues stemming back to his military service; however, he just started therapy for his substance abuse issues. It was noted that his current active problems included PTSD and alcohol dependence. The neuropsychologist stated that the Veteran reported very high levels of anxiety and depression; he also described a "number of symptoms consistent with PTSD, and in fact, does have a pre-existing diagnosis of PTSD." He concluded that it appeared that the Veteran's reported cognitive issues stemmed more from his mood state rather than his motor vehicle accident or even his substance abuse. In March 2009 it was noted that the Veteran had a medical history that included PTSD and alcohol/marijuana abuse. The Veteran was afforded a VA examination; the Board notes that the date on the examination is August 21, 2008, however, the Board finds that this is a typo and in error as the examination discusses the December 2008 treatment notes, it was printed on October 2009, and the December 2009 Supplemental Statement of the Case (SSOC) lists the date as August 2009, it will herein be referred to as the August 2009 VA examination. The VA examiner noted that the Veteran was reduced in rank because of marijuana use. The Veteran reported that he was anxious since 1991 and had a long history of substance abuse, including alcohol and marijuana, that began in high school and that it increased while he was on active duty. It was noted that the Veteran's history was somewhat confusing and that he did not specifically relate any current psychological symptoms to the in-service motor vehicle accident; there is no apparent direct link between these events and any Axis I diagnoses listed in this report. The Veteran was diagnosed with Axis I diagnoses of dysthymic disorder, alcohol dependence in remission, and cannabis dependence in remission. The VA examiner stated that the Veteran did not have an Axis I diagnosis of PTSD and while the December 2008 treatment note described some symptoms that were consistent with the diagnosis of PTSD there was no history of symptoms that would meet the DSM-IV criteria for this diagnosis. In addition, there were no symptoms suggestive of PTSD related to the in-service motor vehicle accident. The VA examiner also stated that "[i]t is noted that the chemical dependence team felt [that] the [V]eteran had some symptoms suggesting PTSD, and this diagnosis was added to the problem list by Dr. [P]" in October 2008 but there was no indication of any description of symptoms that would meet the DSM-IV criteria. Thus, the VA examiner concluded that it was his opinion that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. The VA examiner further stated that the Veteran's extensive history of substance abuse very likely played a significant role in his overall symptom complex and that a primary dysthymic disorder was also present; there also may be some underlying personality issues. The primary diagnosis of dysthymic disorder was believed to exist independently of the history of substance abuse; the Veteran was clean and sober for 14 months but he still had continued anxiety and depression making the diagnosis of substance induced mood disorder unlikely. At a March 2011 VA examination the Veteran reported anxiety and depression. His Axis I diagnosis was dysthymic disorder and it was opined that it was not due to or caused by military service. The rationale was that dysthymic disorder was usually considered to be a time-limited condition and reactive to life's circumstances; such as the case here and therefore, no nexus or connection with military service was implied. Additionally, the presence of untreated sleep apnea added complexity since sleep apnea could account for many or most of the symptoms recounted by the Veteran. The Veteran was afforded a VA examination in March 2013 and his Axis I diagnoses were polysubstance dependence in sustained partial remission, alcohol dependence, substance induced mood disorder, and personality disorder. It was noted that though the Veteran had a past diagnosis of PTSD there was no evidence to support a PTSD diagnosis. It was further noted that the diagnosis of personality disorder is not considered a disability for which service-connected benefits are payable and that it was a constitutional or developmental disorder. The Veteran's substance abuse/dependence is willful behavior and was the cause of his previously diagnosed dysthymic disorder, which is now diagnosed as substance-induced mood disorder at this time. He opined that the Veteran's substance induced mood disorder was due to his chronic polysubstance alcohol dependence and not related to his military service. PTSD Service connection for PTSD requires medical evidence diagnosing the condition 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). VA's General Counsel has held in a precedent opinion that "the ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be resolved on a case-by- case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99 (Oct. 18, 1999). The evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was relaxed, adding to the types of claims VA will accept through credible lay testimony alone. The new regulations provide that if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in- service stressor. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. pt. 3). The DSM-IV diagnostic criteria for PTSD include exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and a response that involved intense fear, helplessness, or horror. Additional diagnostic criteria must be met before a diagnosis of PTSD is warranted. A diagnosis of PTSD by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be proper with respect to the sufficiency of stressor(s) and adequacy of symptomatology needed to make the diagnosis. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). When the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD. In this instance, the Board finds that the preponderance of the evidence is against a probative PTSD diagnosis that conforms to 38 C.F.R. § 4.125(a), which contemplates that a diagnosis of a mental disorder meet the criteria of DSM-IV. The Board observes that if a Veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). VA can only reject such a diagnosis on a finding that the preponderance of the evidence is against (1) the PTSD diagnosis, (2) the occurrence of the in-service stressor, or (3) the connection of the current condition to the in-service stressor. The adequacy of a stressor, sufficiency of symptomatology, and diagnosis are all medical determinations. Cohen, 143-44. After a careful review of the medical evidence of record, including the August 2008 and March 2011 VA examination, a PTSD diagnosis is not demonstrated by the probative evidence of record. As noted above there, a December 2008 neurology consult stated that the Veteran had a history of PTSD, a December 2008 neuropsychology consult state that PTSD was on a current active list and that he had symptoms consistent with PTSD, and in March 2009 it was stated that he had a history of PTSD. Although there are sporadic notations of a PTSD diagnosis in the claims file, these equivocal diagnoses are far outweighed by the many other items of evidence showing that the Veteran's proper diagnosis is something other than PTSD, specifically dysthymic disorder and polysubstance abuse. Moreover, none of the PTSD diagnoses were corroborated by their own records and a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Elkins v. Brown, 5 Vet. App. 474, 478 (1993). In addition, there is no evidence that these diagnoses were made after an administration of the DSM-IV. The Board notes that both the August 2009 and March 2013 VA examinations did not rely on a recitation of the Veteran's self-reported history, but rather conducted a detailed and thorough examination of the Veteran and used all of the criterion in DSM-IV and provided a thorough description of the Veteran's reported symptoms with the DSM-IV. Thus, no PTSD diagnosis of record was accompanied by discussions for the basis of the diagnoses or the stressor that led to these diagnoses; even the December 2008 neuropsychologist stated that the Veteran just had symptoms consistent with PTSD but did not give an actual diagnosis of PTSD and related any cognitive issues to his mood state and not to his military service. This lack of analysis seriously undermines the opinion. Thus, the Board finds that the Veteran does not have a current diagnosis of PTSD conforming to 38 C.F.R. § 4.125(a). In addition, the Board notes that the Court has also expressly declined to adopt a "treating physician rule" which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Because the August 2009 and March 2013 VA examination opinions were based on a complete review of the record, including the prior diagnoses of PTSD and supported by a rationale, the Board finds these to be of greater probative value. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri, 4 Vet. App. at 470-71. Moreover, as indicated above, the August 2009 and March 2013 VA examination opinions essentially reconciled and substantiated the diagnoses of the Veteran's mental condition, and in doing so, they establish a sound medical basis for ruling out a PTSD diagnosis in accordance with DSM-IV. Accordingly, for the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against the claim for service connection for PTSD. See, e.g., Cohen v. Brown, 10 Vet. App. at 153 (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that a preponderance of the evidence is against a PTSD diagnosis). It is acknowledged that in some circumstances, lay evidence can establish a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined 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 (noting that sometimes 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), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here, however, none of the criteria set forth in Jandreau have been met, and therefore the lay evidence of record does not establish current disability here. Without competent evidence of a current diagnosis of PTSD, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held "[i]n the absence of proof of a present disability[,] there can be no valid claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In sum, after a careful review of the claims file the Board finds that the preponderance of the evidence is against the Veteran's claim since he does not have a current competent diagnosis of PTSD. As the preponderance of the evidence is against the claim of service connection for PTSD, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for PTSD is not warranted. Dysthymic Disorder The Board notes that a careful review of the Veteran's claims file revealed diagnoses of psychiatric disorders other than PTSD; specifically, dysthymic disorder. Thus, as noted above, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Veteran's claim on appeal also includes entitlement to service connection for an acquired psychiatric disorder, to include dysthymic disorder. However, the Board finds that the preponderance of the evidence is against a grant of service connection for an acquired psychiatric disorder, to include dysthymic disorder. First, there is no evidence that the Veteran was diagnosed with a psychiatric condition, including dysthymic disorder, during his periods of active duty military service or shortly after his discharge from the military. Instead, the first diagnosis was in 2009, seventeen years after the Veteran's military discharge. This lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). The Board also finds that the only medical opinions of record (March 2011 and March 2013) are against the Veteran's claim that his acquired psychiatric disorder, to include his dysthymic disorder is related to his military service; instead, his diagnoses of dysthymic disorder have been related to his substance abuse. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). The March 2011 VA examiner stated that dysthymic disorder was usually reactive to life's circumstances so there was no nexus or connection to the Veteran's military service. In March 2013 it was stated that the Veteran's dysthymic disorder was now characterized as substance induced mood disorder and was not related to the Veteran's military service. As noted above, there are no opinions relating the Veteran's acquired psychiatric disorder, to include dysthymic disorder, to his military service. Moreover, the examiners offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, the Board assigns great probative value to the VA examiners' opinions. Here, the only medical opinions of record regarding the likely etiology of the Veteran's acquired psychiatric disorder, to include dysthymic disorder, are against the Veteran's claim. 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). Therefore, without evidence of an etiological relationship, service connection for an acquired psychiatric disorder, to include dysthymic disorder must be denied. The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and that competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to determine the credibility and weight of all the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The first notation of dysthymic disorder was not until the August 2009 VA examination; there is no notation, diagnosis, or treatment of dysthymic disorder in the Veteran's treatment records and lay statements made when medical treatment was being rendered may be afforded greater probative value. These records were generated with a view towards ascertaining the appellant's then-state of physical fitness; they are akin to statements of diagnosis and treatment and are of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds it pertinent that the only time the Veteran stated that his acquired psychiatric disorder, to include dysthymic disorder was due to his military service was after he sought an award of service connection. In light of evidence of record that the Veteran has never reported that his t his acquired psychiatric disorder, to include dysthymic disorder was related to his military service until they were made in pursuit of this claim, the Board has to question the credibility of his contention. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statement, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board finds that the Veteran's lay statements that he experienced his acquired psychiatric disorder, to include dysthymic disorder since military service are neither credible nor probative, because the record evidence reflects that the Veteran only reported that his symptoms were due to his military service after filing his claim for service connection for his acquired psychiatric disorder, to include dysthymic disorder. Therefore, the Board finds that there is no probative evidence of record that relates the Veteran's acquired psychiatric disorder, to include dysthymic disorder directly to his military service. As noted above, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). Psychosis is listed under 38 C.F.R. § 3.309(a); however, 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. In this situation, the Veteran's psychiatric diagnosis of dysthymic disorder is not listed as a presumptive disorder. While the Veteran is diagnosed with a psychosis, substance induced mood disorder, the record does not show, that he had a diagnosis of psychosis during service or that it developed within one year of her separation from service. Indeed, there is no objective evidence of a diagnosis of psychosis for many years; in March 2006 the Veteran denied any history of a psychiatric condition. As such, service connection may not be granted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, the Board notes that the March 2013 VA examiner stated that the Veteran's substance induced mood disorder was not related to his military service but was related to his polysubstance alcohol dependence. The Veteran has a thoroughly documented history of substance abuse including alcohol abuse and drug abuse. However, primary diagnosed disabilities of drug or alcohol abuse are not disabilities for which service connection can be granted. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.301. In this case, the evidence shows that the Veteran's drug usage is the product of willful misconduct and was frequent and progressive to the point of addiction. 38 C.F.R. § 3.301(3). This substance abuse involved conscious wrongdoing of a known prohibited action and it is not shown to have been due to any event or incident that can be considered to be innocently caused. The Board notes that 38 C.F.R. § 3.301(c)(3) states that where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. However, in this situation there is no evidence that the Veteran's substance abuse is related to a service-connected disability. Thus, service connection based upon on the Veteran's substance abuse is prohibited by law. The Board notes that in March 2013 the Veteran was diagnosed with a personality disorder. However, a personality disorder is not a service-connected disability as noted in 38 C.F.R. § 4.127. Generally, personality disorders, mental deficiency, mental retardation and other such "defects" are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. See also VAOPGCPREC 82- 90, 55 Fed Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240 (1995). In addition, a personality disorder, mental deficiency, or mental retardation that is secondary to a service-connected mental disorder by way of 38 C.F.R. 3.310(a) may also be service-connected. See 38 C.F.R. § 4.127. In this case, the Veteran does not claim, and the evidence does not raise the possibility, that his personality disorder may have resulted from a service-connected disability. The Board especially emphasizes that no medical professional of record has made such a finding. Consequently, service connection is not warranted for the Veteran's personality disorder, or any superimposed disability. In sum, the Board finds that service connection for an acquired psychiatric disorder, to include dysthymic disorder must be denied because there is no probative evidence that the Veteran's acquired psychiatric disorder, to include is due to military service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. Here, however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. Service connection for an acquired psychiatric disorder to include dysthymic disorder is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In December 2010 and December 2012 the Board remanded the issue of entitlement to a separate initial rating for decreased visual acuity for further development. It was stated that in November 2012 the Veteran's representative noted, correctly, that while the February 2011 VA eye examination conducted pursuant to the December 2010 Board remand determined that service connected scarring of the right eye lid and persistent residual edema were "consistent with this type of injury," the examiner did not indicate the extent to which such scarring affected the Veteran's visual acuity. As such, the examination did not, as stated by the Veteran's representative, "discuss all findings in terms of 38 C.F.R. § 4.79, Schedule of Rating of the Eye" as was requested in the December 2010 remand. Therefore, the Board directed for the Veteran to be afforded another VA eye examination that includes an assessment as to the degree of visual impairment resulting from the service connected facial scars. Based on the discussion herein below, the AOJ did not accomplish the objectives set forth in the December 2012 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). Thus, the Board finds that a remand is necessary to comply with the December 2012 Board remand. The Veteran is currently service-connected for scars status post trauma to the head and face (rated as 30 percent disabling effective October 2, 2006), and facial nerve weakness associated with scars, status post trauma to the head and face (rated as 10 percent disabling effective October 2, 2006). The Veteran was afforded a VA examination in August 2009 and it was noted that the Veteran's scar above his right eye did not interfere with vision; the Board notes that this examination took place about five months after the Veteran had scar revision surgery. In March 2009, VA outpatient records indicated that the Veteran was seen by an ophthalmologist and he complained of intermittent puffiness of his right eyelid and blurry vision. It was noted that his right upper lid felt tight and dragged on down gaze. It also swelled and was red and irritated in mornings. Examination revealed a laceration from lateral brow along lid crease to medial lid margin, there was no lid crease and a prolapse of orbital fat. The Veteran underwent scar revision surgery to the right eye in March 2009. The Veteran was afforded a VA examination in February 2011 and it was noted that he gave a history of no treatment for any eye disease other than lacerations from the in-service injury. On examination he was found to have uncorrected distance visual account in the right eye of 20/60 minus 1 and corrected vision of 20/25. The right upper eyelid showed a healed scar with some swelling but there was good function of the elevation and closure of the eyelid. Slit lamp examination showed a clear cornea and a clear lens. The dilated fundus examination was normal with no diabetic retinopathy. The impression was post injury status right upper eyelid with residual persistent edema of the lid, healed scars; presybyopia; and diabetes mellitus with no diabetic retinopathy. At the Veteran's April 2013 VA examination he reported that his vision was kind of poor in the right eye and it caused a strain on the left eye; he had difficulty visualizing things when he drove and his upper eye lid hung low and blocked his vision. The Veteran's visual acuity for the right eye was 20/70 uncorrected distance, 20/40 or better for corrected distance, 20/70 for uncorrected near, and 20/40 or better for corrected near. He stated that the scar in the right upper lid was not cosmetically or functionally significant. He then stated that he found no physical basis for the Veteran's visual symptoms although they could certainly be related back to the accident in November 1988. The Board finds that the April 2013 opinion is unclear and needs further clarification. It is unclear if the VA examiner is stating if the Veteran has any visual symptoms, to include decreased visual acuity; it is also unclear if it is at least likely as not related to the Veteran's military service or was caused by or aggravated by the Veteran's service-connected scarring of the right eye lid. Thus, the RO should send the Veteran's claim file to the April 2013 VA examiner for an addendum opinion; if the April 2013 VA examiner is not available it should be stated and the Veteran's claims file should be sent to a new VA examiner. Accordingly, the case is REMANDED for the following action: 1. Update VA medical treatment records and associate them with the claims folder. 2. Return the claims file, to include a copy of this remand, to the VA examiner who conducted the April 2013 VA examination in order to provide an additional addendum opinion. The claims file and a copy of this remand must be made available to and reviewed by the examiner. The examiner should indicate in the report that the claims file was reviewed. The VA examiner should answer the following questions: A) Completely describe all current symptomatology associated with the Veteran's eye, including any decrease in near or distant visual activity and any visual field loss. B) For each diagnosed eye condition, including any decrease in near or distant visual activity and any visual field loss, was it caused by or worsened by the service connected scarring of the right eyelid? C) For each diagnosed eye condition, including any decrease in near or distant visual activity and any visual field loss, is it at least as likely as not (a 50 percent probability or greater) related to the original accident in November 1988. D) Clarify the April 2013 VA examination opinion; specifically, the statement of "no physical basis for the Veteran's visual symptoms although they could certainly be related back to the accident in November 1988;" what visual symptoms? The rationale for all opinions expressed should be provided in a legible report. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale. If the April 2013 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinion. If a new VA examination needs to be conducted in order to obtain such an opinion, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 3. Then, after any other indicated development is completed, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before returning the case to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs