Citation Nr: 1326528 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 03-28 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected physical disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from January 1986 to January 1990 and from January 1992 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) from an October 2000 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above, which denied entitlement to service connection for mental illness. This issue was previously before the Board in September 2007, at which time service connection for an acquired psychiatric disorder was denied. That decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court). The record contains a Joint Motion for Remand, dated in November 2009, wherein the Veteran's attorney and the VA General Counsel agreed to a remand of the Veteran's claim. In November 2009, an order was issued by the Court, remanding the Veteran's claim for additional adjudication. The Board, in complying with the Joint Motion, remanded the claim for further evidentiary development in December 2010. All actions required by the remand order have been accomplished. The Veteran's claims file, to include the portion contained in the electronic Virtual VA system, has been reviewed. FINDINGS OF FACT 1. The evidence does not show that a current acquired psychiatric disorder was incurred or aggravated during active duty, nor may it be so presumed. 2. The evidence of record does not indicate that the Veteran experiences an acquired psychiatric disability as a result, either causally or by aggravation, of service-connected physical disabilities. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic conditions, such as psychoses, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). Also, as psychoses are presumed to be service-connected if manifest within the first post-service year, they are capable of service connection when continuity of symptomatology is established. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a nonservice- connected disability caused by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439 (1995). In this regard, Congress has specifically limited entitlement to service connection for disease or injury to cases where such have resulted in a disability. 38 U.S.C.A. § 1110. Thus, in the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly affirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board also recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can support a grant of service connection if there is a relationship to service, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In the current case, the Veteran alleges having developed a chronic psychiatric disability either as a result, directly, of his active service or, alternatively, as a result of his service-connected physical disablement. A review of the record indicates that service connection has been granted for pes planus, left ankle inversion sprain residuals, right ankle inversion sprain residuals, lumbosacral strain, and residuals of an injury to the right thumb. The combined disability rating is 70 percent, and a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU) has been denied as is not before the Board at this time. As alluded to briefly in the introductory section, the Court determined that the Board erred when it confined its analysis in its September 2007 denial solely to direct and presumptive theories of entitlement. The Court did not find error in the Board's analysis on these theories, but noted that a remand was necessary in order to address the secondary theory of entitlement. Thus, for the sake of expediency, the portion of the September 2007 decision addressing direct and presumptive entitlement is incorporated below into the current decision (with some changes added to take into account for an overturning of previous case law): The Veteran's service medical records include reports of medical examinations conducted in January 1990, March 1990, April 1992 and May 1992. The reports show that psychiatric examination of the Veteran was normal and identify no pertinent defects or diagnoses. Reports of medical history dated in January 1990, March 1990, April 1992 and May 1992 are negative for pertinent complaints and pertinent summaries or elaborations, providing evidence against this claim. There is no evidence of pertinent complaints, symptoms, findings or diagnoses within one year of the Veteran's separation from service. Because the claimed condition [or any associated symptoms were] not seen during service, service connection may not be established based on chronicity in service or continuity of symptomatology thereafter. 38 C.F.R. § 3.303. Because it was not seen within one year of the Veteran's separation from service, presumptive service connection is not warranted. Current treatment records from the Veteran's incarceration show a diagnosis of depressive disorder, NOS; symptoms including depression and hallucinations; and treatment including psychiatric medication. These records, overall, are evidence against service connection on a direct basis because they include no nexus opinion or evidence linking the Veteran's current complaints to service. 38 C.F.R. §§ 3.303, 3.304. Further, they indicate no association between service and the disorder at issue, providing more evidence against this claim. Simply stated, there is nothing to indicate the disorder was caused by service. The post-service medical record is found to provide evidence against this claim as it indicates a disorder that began many years after service with no connection to service. With respect to the secondary theory of entitlement, the Board, in December 2010, noted the Joint Motion between the Veteran and Counsel for the Secretary of Veterans Affairs with regard to allegations of a secondary relationship. In pertinent part, the evidentiary record revealed that, as early as February 1991, the Veteran submitted statements to VA asserting that he was unable to hold a job due to disabilities incurred during service, which was allegedly having a psychological affect on him. He specifically stated that he became depressed during service because the disabilities involving his back, hands, and feet caused him to be unable to hold a job and eventually led to his discharge. He also stated that his inability to work was "sad and discomforting," stressful, and was causing him to feel like he was going to have a nervous breakdown. See statements submitted by the Veteran dated February 1991, June 1995, January 1996, June 1996, March 2001, and May 2001. The Veteran's wife also submitted a January 1997 statement to the effect that she experienced the Veteran's mood swings and that he complained of muscle spasms at night. In light of these allegations, the Board ordered that the Veteran be afforded a VA psychiatric examination addressing the contended secondary relationship between service-connected physical disabilities and a current psychiatric disability. An examination was afforded in January 2012 that did, specifically, address the Veteran's alleged psychiatric disorder and its potential relationship to other service-connected conditions. In this report, it was noted that to the extent the Veteran exhibited any acquired psychiatric pathology, it was solely due to his incarceration with the Florida Department of Corrections for the rest of his natural life. Indeed, the examiner noted that a past suicide attempt was related to the Veteran feeling guilt over his attempted murder of his wife and stepchildren, and that depression, to the extent it exists, is "100%" related to his current imprisoned status. The examiner noted that any such depression "was not caused by service-connected disability, nor was it exacerbated by service-connected disability." Instead, any depressive pathology was "completely related to the incarceration under a life sentence and having to live with the notion that he attempted to murder other people." The examiner noted that this conclusion was based off of his interview with the Veteran, "a review of the c-file and treatment reports, as well as a review of DSM-IV diagnostic criteria and recent research." The examiner further went on to state that the Veteran's symptom descriptions in his clinical interview were highly suspect. That is, the "M-FAST" score was "significantly elevated above the cut-off and is consistent with a diagnosis of malingerer." The Veteran's descriptions of "hallucinations" were "highly inconsistent with current research on psychosis (Rogers, 2008)." A review of the records as a whole by the Board fully supports this factual finding by the examiner. There are clear indications of exaggeration by the appellant in this case, as clearly noted by the examiner. For example: The Board notes that the Veteran, in the examination report, described being on classified missions in the Navy aboard a submarine, and stated that he received the Bronze Star and Silver Star Medal for heroism in combat situations. He asserts that he was involved in the firing of ballistic missiles from submarine platforms against enemy targets, and that they were involved in "collecting information." The DD Form 214 does not indicate any award for heroism, and a United States Fleet Ballistic Missile Submarine (SSBN) has never launched one of its nuclear weapons ("ballistic missiles," as described by the Veteran) in anger. Thus, the Veteran's assertions of combat participation in any form, much less his alleged decorations for bravery in such actions, are unfounded. The VA examination is thorough and well-rationalized, and it considers the Veteran's allegations with respect to direct, presumptive, and secondary theories of entitlement. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, while there may have been some reported assessments of hallucinatory behavior in the past, the VA examiner clarified that these were not consistent with a diagnosis of psychosis, and that any acquired pathology is related to his imprisonment and the guilt experienced over his crime. Thus, there was no psychosis manifest to a compensable degree within the first year of service, no relationship of any current psychiatric disability to service, and no causal or aggravating relationship between a current psychiatric disability and any service-connected disability. The only evidence supportive of the Veteran's claims consists of the statements of the Veteran himself and some additional lay statements from his former spouse. The Board acknowledges that the Federal Circuit has suggested that laypersons perhaps can establish the required nexus to service in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (vacating and remanding a decision in which the Court categorically held in a service connection case that "'a valid medical opinion' was required to establish nexus, and that [a lay person] was 'not competent' to provide testimony as to nexus because [that individual] was a layperson."). However, the Court has also held that a layperson, such as the Veteran, is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that lay evidence is competent and sufficient in certain instances related to medical matters. Specifically, the Federal Circuit commented that such instances include establishing a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Id. Similarly, the Court has held that 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 (2007). The diagnosis of an acquired psychiatric disorder, and the linkage of such a disorder to active service or to service-connected disabilities, is something that is complex in nature and thus, is outside the competency of a layperson. Id. Furthermore, it is noted that the Board is charged with the duty to assess the credibility and weight given to evidence. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In the current case, the Board must conclude that, even as it relates to symptoms, the Veteran has demonstrated that he is not a credible historian. Specifically, his fabrications with regard to his military record, and the displayed malingering traits offered to the 2012 VA examiner, show that the Veteran's assertions are less than sincere, and that they have only been forwarded as a means to hopefully obtain additional VA benefits. In that regard, they cannot be given any significant probative weight. Given the above, the Board must conclude that the competent and credible evidence of record weighs strongly against the Veteran's claim for service connection. To the extent that any acquired psychiatric pathology exists (the Veteran has demonstrated malingering traits), which most recently has been described as some form of depression, such disablement has been linked solely to the nonservice factor of incarceration for life and the guilt associated with the Veteran's criminal act. The Veteran's assertions regarding both an in-service origin of his symptoms, to include alleged exposure to stressful combat situations, and a linkage between his service-connected physical disabilities and psychiatric symptomatology, are simply not believable. Accordingly, the claim will be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim for service connection. 38 U.S.C.A. § 5107(b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (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); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative has pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded a comprehensive VA psychiatric examination which addressed his claimed condition. Thus, there is no indication of any additional relevant evidence that has not been obtained. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). The Board notes that the Veteran has requested to appear before a Veterans Law Judge to present testimony in support of his claim. Typically, when a hearing with a Veterans Law Judge is requested, one will be scheduled at the earliest convenience at the RO closest to the Veteran (or, the Veteran may report to the RO for a Videoconference hearing with a Veterans Law Judge sitting in Washington, D.C.). Veterans, as a matter of law, are entitled to a hearing so as to be able to present testimony in support of their claims. See 38 C.F.R. § 20.700 (2012), Generally, incarcerated Veterans are entitled to VA assistance in the same manner as would all other Veterans; however, the U.S. Court of Appeals has held that VA adjudicators must "tailor their assistance to the peculiar circumstances of confinement." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the current case, the practicalities of scheduling the Veteran for a hearing are so outweighed by the obstacles that it is not reasonable to attempt to afford him with a hearing in this case, for this issue. Indeed, the Veteran has been sentenced to two life terms with the Florida Department of Corrections as due to conviction for violent felonies. There is no indication that the Veteran will be released at any point in his life, and thus, there is no point to offering a delay in scheduling a hearing at the RO (as the Veteran will never be released from incarceration so as to be able to attend one). Hearings are not held at prisons. Furthermore, even assuming that a hearing could be scheduled at the prison (which is not something that has been conceded as possible and is impossible), the Veteran has proven himself to be dangerous and a safety concern when in the presence of VA personnel. Indeed, during his VA examination in January 2012, the Veteran referred to his middle name as being "Danger," and told the examiner that: "he need[ed] to do the right thing" with respect to making a finding supportive of the claim for service connection. Further, at the conclusion of the examination, the Veteran threatened the examiner by saying: "just remember, if you hurt me, I'll hurt you." This threat, in combination with the fact that the Veteran has been convicted for attempting to murder several human beings, clearly illustrates that it is dangerous for VA personnel to be in proximity to him, and the Board will not jeopardize the safety of RO personnel or of one of its Veterans Law Judges so that a hearing can be afforded given the unique facts of this case. The Board finds that the Veteran in this case was clearly threatening the VA examiner. Notwithstanding the above, the examiner provided, as required by the Court (without an examination a second Court vacate/remand would have been highly likely in light of the finds of the JMR) a detailed and honest assessment of the Veteran's disability was undertaken. The examiner's service to the VA should be noted for the record. In this regard, it is important to note that it is not possible for the Board to undertake hearings using the phone or Skype or some other form of non-secure telecommunications equipment as it is against VA policy to use such non-secure communications. Further, in light of the factual determinations above, it is very unclear as to what would be gained by obtaining a hearing in this case. The Veteran would simply be reiterating his many written statements and those he gave to the examiner he threatened, which the Board has reviewed, in detail. Additionally, it is important for the Veteran himself to understand that he is currently in receipt of the maximum allowable benefit payment for incarcerated Veterans. Even if his claim were to be granted, there would be no additional payment of benefits to him, and as the Veteran will not be released from prison, there will be no entitlement to additional benefits and/or VA medical care at any time in the future. It is also important for the Veteran to understand that without consideration of the Veteran's honorable service in the United States Navy, the Veteran's current 70% evaluation would be difficult to justify based on the facts in this case. All of this, when considered in light of the jurisprudential duty to tailor VA's assistance to the specific circumstances of confinement, and the totality of the circumstances in this case, supports a determination to not afford the Veteran with a hearing before the Board, based on these unique facts. ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected physical disabilities, is denied. ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs