Citation Nr: 1326525 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 06-36 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran's appeal was last remanded by the Board in March 2013, so that a supplemental medical opinion with a complete rationale could be obtained to determine the nature and etiology of any acquired psychiatric disorder. The requested opinion was obtained in May 2013. A Supplemental Statement of the Case was issued in June 2013. Accordingly, the Board finds that there has been substantial compliance with the directives of the March 2013 Remand in this case, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran has not been diagnosed with an acquired psychiatric disability, which is subject to compensation for VA purposes. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability other than PTSD are not met. 38 U.S.C.A. §§ 1131, 5013A, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). The Board finds that the RO's letters dated in September 2004, January 2005 and March 2006 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, 19 Vet. App. at 490. Moreover, even if the Veteran was not provided adequate 38 U.S.C.A. § 5103(a) notice prior to the initial adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the October and December 2006, September 2007, August and December 2010, September 2012 and January 2013 supplemental statements of the case, "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's available service and reserve component records as well as his post-service records from the North Texas VA Health Care System, John Peter Smith Hospital, All Saints Hospital, and the Social Security Administration (SSA). As to the missing reserve component and service personnel records, the record shows that the National Personnel Records Center (NPRC) in September 2007 and December 2007 notified the RO that these records were not available. Likewise, in February 2008, the Adjutant General's Office provided the RO with copies of the few reserve component and service personnel records that it had in its possession. Moreover, in October 2007 the RO notified the Veteran that these records had been lost. Where, as here, "service medical records are presumed destroyed, . . . the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt is heightened." O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The cases, however, do not establish a heightened "benefit of the doubt," but rather only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed. The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, adjudication of this claim may go forward without these records. See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"). Furthermore, in compliance with the Board's March 2013 remand, a supplemental VA medical opinion with a supporting rationale was obtained in connection with the issue decided herein, which was adequate for VA purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Under these circumstances, the Board finds that there has been substantial compliance with its March 2013 remand. See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). 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, 129 S. Ct. 1696 (2009). In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Claim Service connection may be established for 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. § 1131; 38 C.F.R. § 3.303(a). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, 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. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Veteran seeks service connection for an acquired psychiatric disability other than PTSD, arguing that it had its origin during his period of active military service. He has filed for a claim for service connection for his mental illness and claims that he has PTSD. However, in its October 2012 decision, the Board denied entitlement to service connection for PTSD because the evidence did not show a diagnosis of PTSD. Thus, the Board will now address the issue with regard to an acquired psychiatric disability other than PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that multiple medical diagnoses that differ from a claimed condition do not necessarily represent a separate claim, and what constitutes a claim should not be limited by a lay veteran's assertion, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Service treatment records do not show any complaint, finding, or diagnosis of a psychiatric disorder. The April 1977 separation examination report reflects that the Veteran was clinically evaluated as normal psychiatrically. On a report of medical history at separation examination, the Veteran denied ever having depression, excessive worry, and nervous trouble of any sort. The examining physician noted that there were no other medical problems other than difficulty in reading due to decreased vision. After service, the Veteran was involved in a motor vehicle accident in March 1982 in which he sustained fractured in his legs and unspecified internal injuries. In February 1983, a private orthopedic clinic report reflects that the Veteran was severely depressed. He complained of family changes and other medical condition. No psychiatric diagnosis was noted and he was referred to mental health. In March 1983, it was noted that he did not keep mental health appointments but his depression was much improved. In December 1983, the Veteran was evaluated for disability determination purposes. Various psychodiagnostic test results showed revealed that the Veteran was functioning in the mildly retarded range of intelligence when compared to adults of his same age. The diagnoses were psychophysiological reaction and mild mental retardation, on Axis I. A February 2007 VA mental health note reflects that the Veteran walked in for voluntary admission and reported that he felt that something was taking control over him and felt that this spirit was telling him to kill. He reported having PTSD due to a "nervous breakdown" while in the military. The assessment indicated that the Veteran, with history of depression, presented with worsening mood in context of limited finances as well as daily substance and alcohol abuse. It was noted that he claimed to have PTSD, although there was no mention of this diagnosis in the chart previously and that "there may be some secondary gain in his desire to portray himself as having PTSD." He was admitted for inpatient stabilization. VA treatment records dated from March 2007 through April 2011 reflect the Veteran's medical history of depression, not otherwise specified; cocaine abuse; alcohol abuse; dysthymic disorder; and anxiety, and that he had been on medications for depression. From May 2011, the medical history include antisocial personal disorder, factitious disorder with predominantly psychological signs and symptoms, alcohol dependence, and cocaine dependence, as well as depressive disorder, not otherwise specified, from December 2011. VA mental health notes dated April and June 2009 reflect that the Veteran was seen in approximately two years. It was noted that he had been diagnosed with depression and alcohol and substance abuse. He stated that he had PTSD and that he was taking medications for PTSD. He expressed frustration that he had been trying to get service-connected for PTSD for the last 15 years. The assessments were alcohol and cocaine abuse and depression, not otherwise specified. In a July 2009 letter, a VA physician wrote that based on a review of the Veteran's mental history dated in February 2007, it seemed that he had been consistently reporting that his mood problems and substance abuse issues started due to a "nervous breakdown" while in army in 1977. The physician stated that although the Veteran did not have combat exposure, he used to drive tanks in the military and reported seeing someone being killed and that a sergeant beat his head against a wall. The physician further stated that the Veteran had been struggling with his depression and anxiety and was unable to find or keep a job. VA inpatient treatment records reflect that the Veteran was admitted for rehabilitation for cocaine-induced dysphoria in March 2010 and substance-induced mood disorder in June 2010. In a February 2011 VA mental health note, the Veteran reported that he continued to struggle with his substance abuse and complained of depressed mood. The diagnoses reflect history of depression, not otherwise specified, and alcohol/cocaine abuse. The Veteran was admitted to drug rehabilitation in April 2011. He reported having anger issues since he was in the military. H reported that he had been in and out of prison but refused to say "what for other than he had problems with anger." He indicated that he started drinking and using cocaine in 1975 while in service. He stated that he was using "every day...for about 6-7 years...it got worse after I got out of the Army." The initial DSM-IV diagnoses were substance abuse, intermittent use; cocaine abuse, intermittent use; polysubstance abuse in Axis I; and no diagnosis on Axis II. In an April 2011 VA psychosocial assessment, the Veteran reported that he had two Article 15's in service. In regard to mental health history, he reported a long history of use of cocaine and alcohol, which he began using while in the military. He stated that despite his current daily substance use, he was previously sober for the past 7 years; however, the record indicated that he was using substance daily in February 2007. The VA mental health recovery treatment plan noted DSM-IV diagnoses of substance induced mood disorder by history; alcohol abuse; cocaine abuse on Axis I; and no diagnosis on Axis II. In a May 2011 VA mental health history note, the Veteran presented for rehabilitation of substance and alcohol dependency. He identified having been traumatized while in the military. He suggested that he was once made to go without sleep for "2 or 3 days." He inconsistently reported being the father of 7, including 4 daughters, and grandfather of 10, per available records, but during the interview, he reported having had no children. Regarding military history, he reported being stationed in Kentucky during service and driving tanks during the 4 months of active duty. He was discharged on advice of superiors although he indicated he was never given a reason for the discharge. He denied history of disciplinarian problems. The staff psychologist noted DSM-IV diagnoses of crack/cocaine and alcohol dependency, factitious disorder with psychological features on Axis I; and antisocial personality disorder on Axis II. The psychologist further stated ..., personality features, which are evidenced in the interview and history, indicated that the finding of incongruous presentation and abject egocentricity at the expense of others would not be unlike that of adults who meet diagnostic criteria of [antisocial personality (ASP)]. The diagnosis of [f]actitious [d]isorder is merited for claims of traumatization during military service. Some elements of self-reported military history are dubious, but I did find that the Veteran sincerely believes in emotional distress as a result of his experiences in the military, however, the reported experiences in my estimation do not suggest that at any time he faced a life-threatening and extreme event. The Veteran was provided a VA examination in January 2013. The examiner indicated that the Veteran's claims file was reviewed. The examiner assessed that the Veteran currently had Cluster B personality traits that conformed DSM-IV criteria. The Veteran reported that he started using mental health services in 1977 and getting psychiatric medications 5 to 6 years previously. He reported anger and mood disturbances. He felt anxious or depressed when he had financial issues. He further stated that he started using drugs in 1977 after military service and abused substance 15 years ago. He also stated that he started using alcohol to cope with depression when he was in the military service. On clinical interview, the examiner identified current symptoms included disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or work-like setting, and inability to establish and maintain effective relationships. The examiner concluded that the Veteran failed to meet DSM-IV criteria for PTSD or any other Axis I mental health conditions. The examiner opined that the Veteran's symptoms were best characterized as Cluster B personality traits on Axis II. In a May 2013 addendum, the same VA examiner stated that he was conservative with diagnosis as an Axis II diagnosis of personality disorder, not otherwise specified, whether it was a better fit for presented symptoms, because the Veteran met criteria across Cluster B personality disorder criterion that included narcissistic, borderline and antisocial traits. The examiner noted that the Veteran's Axis II diagnosis was demonstrated by pervasive pattern over lifespan of irritability, pattern of unstable and intense interpersonal relationships, sense of identity disturbance, recurrent suicidal behavior or threats stemming from poor identity of self, affective instability due to reactive mood, inappropriate intense anger or difficulty controlling anger, transient stress-related paranoia ideation, sense of entitlement, lacks empathy or difficulty in recognizing feelings/needs of others, arrogant and haughty behaviors, and need for excessive admiration. These traits have been present over the Veteran's lifespan and likely due to violent turbulent youth where he had to be involved in constant physical assaults to survive. It was also noted that the May 2012 VA mental history noted diagnoses of crack/cocaine and alcohol dependency, factitious disorder with psychological features on Axis I; and antisocial personality disorder on Axis II. After reviewing the evidence of record, the Board concludes that the Veteran's current psychiatric disorder is most appropriately characterized as alcohol/substance abuse on Axis I and antisocial personality disorder on Axis II per DSM-IV criteria. To that effect, the record reflects the Veteran's long history of substance abuse and rehabilitation admissions, with diagnoses of alcohol/substance abuse or substance-induced mood disorder. The Veteran has reported that he started using alcohol/substance in service. As his VA mental health provider pointed out in the July 2009 VA mental health note, the Veteran reported that he had a "nervous breakdown" while in the military. The physician stated that the Veteran reported seeing someone being killed and that a sergeant beat his head against a wall, and that the Veteran had been struggling with his depression and anxiety. Similarly, in April 2011, he reported having anger issues since he was in the military. He also reported in May 2011 having been traumatized while in the military, suggesting that he was once made to go without sleep for "2 or 3 days." He stated that he was discharged from active duty on advice of superiors although he indicated he was never given a reason for the discharge, but denied history of disciplinarian problems, which is inconsistent with his April 2011 report that he had two Article 15's in service. Regardless, VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(d); see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (June 9, 1999). In addition, the January 2013 VA examiner concluded that the Veteran's symptoms were best characterized as Cluster B personality traits on Axis II per DSM-IV criterion. In a May 2013 addendum, the examiner explained that such diagnosis was supported by evidence of the Veteran's pervasive pattern over lifespan of irritability, pattern of unstable and intense interpersonal relationships, sense of identity disturbance, recurrent suicidal behavior or threats stemming from poor identity of self, affective instability due to reactive mood, inappropriate intense anger or difficulty controlling anger, transient stress-related paranoia ideation, sense of entitlement, lacks empathy or difficulty in recognizing feelings/needs of others, arrogant and haughty behaviors, and need for excessive admiration. The Board accords substantial probative weight to the January and May 2013 VA examiner's opinion as to the current diagnosis of the Veteran's current psychiatric disorder. To that effect, it is noted that the thorough rationale provided by the VA examiner in May 2013 is very convincing and the diagnosis of personality disorder is consistent with the other medical evidence of record. In this regard, the May 2011 VA staff psychologist rendered a diagnosis of antisocial personality disorder on Axis II and stated that the Veteran's personality features, which were evidenced in the interview and history, indicated that the finding of incongruous presentation and abject egocentricity at the expense of others resembled that of adults who meet diagnostic criteria of antisocial personality. However, personality disorder is not a disability subject to compensation for VA purposes. See 38 C.F.R. § 3.303(c). 3.303(c) provides that "...personality disorders and mental deficiency as such are not disease or injuries within the meaning of applicable legislation." Id. Thus, service connection for personality disorder is precluded, regardless of the Veteran's contentions herein. The Board has considered the Veteran's lay statements regarding his symptoms of depression, anxiety and anger ever since his military service. However, while these statements are competent evidence of psychiatric symptoms experienced by the Veteran, the Board finds that they are not competent as to the question of whether he has an acquired psychiatric disability other than substance abuse or personality disorder, which is attributable to service. To the extent that he is asserting that he has a current psychiatric disability related to service, the Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); also see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, here, the diagnosis of an acquired psychiatric disability cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests. Furthermore, the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM IV). Therefore the disability is not a simple medical condition that the Veteran is competent to identify. It is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer a mental health diagnosis. Where, as here, there is a question of the presence or a diagnosis of the claimed disability, not capable of lay observation by case law, and the claimed disability is not a simple medical condition under Jandreau for the reason expressed, to the extent the Veteran's statements are offered as proof of the presence of a psychiatric disorder in service or since service, the Veteran's statements are not competent evidence favorable to the claim. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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