Citation Nr: 1328013 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 08-34 244 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disorder, to include emotionally immature unstable personality, dysthymic disorder, anxiety disorder, depressive disorder, and psychotic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from July 1964 to October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an June 2008 Regional Office (RO) in St. Paul, Minnesota rating decision, which found that new and material evidence sufficient to reopen a claim of entitlement to service connection for a psychiatric disorder, to include emotionally immature unstable personality, dysthymic disorder, anxiety disorder, depressive disorder, and psychotic disorder, had not been submitted. In March 2011, the Board reopened the claim and remanded the issue for further development. The preponderance of the evidence is against finding that the Veteran currently has an acquired psychiatric disorder, to include anxiety or depression, that had its onset in service or is otherwise related to service or to a service-connected disability. The Board notes that the claim was remanded in January 2010 to afford the Veteran a video hearing before a member of the Board, based on an August 2009 request by the Veteran for such a hearing. In a subsequent April 2010 statement, however, the Veteran withdrew his request for a hearing before the Board and asked that the matter be returned to the Board for adjudication. FINDING OF FACT The Veteran's personality disorder is a congenital defect, and the preponderance of the evidence is against finding that such defect was subject to superimposed disease or injury in service, or that any other psychiatric disorder, to include dysthymic disorder, anxiety disorder, depressive disorder, and psychotic disorder, is otherwise etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include emotionally immature unstable personality, dysthymic disorder, anxiety disorder, depressive disorder, and psychotic disorder, was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. VCAA letters dated in April 2008 and December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, these letters described how appropriate disability ratings and effective dates were assigned. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided a VA examination in October 2010. As directed by the March 2011 Board remand, a supplemental opinion was obtained from the same examiner in March 2011. The examiner considered the Veteran's claims, as well as the service treatment records, post-service treatment records, and conducting a mental examination. The examiner offered a negative nexus opinion. As the October 2010 and March 2011 opinions were based on review of the claims file, including the Veteran's statements, and provided an extensive rationale for the opinions provided, the Board concludes that the opinions provided are adequate. Based on the foregoing, the Board finds the October 2010 examination report and March 2011 supplemental opinion to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that an adequate opinion is one that is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail, and includes a conclusion supported by an analysis that the Board can consider and weigh against contrary opinions). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. Based on the March 2011 supplemental opinion and recently obtained treatment records, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Claim for Service Connection A. Law and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include psychoses, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection for a congenital defect, however, may be awarded if it is shown that such congenital defect was aggravated through superimposed injury during active service. See VAOPGCPREC 82-90 (July 18, 1990). Congenital or developmental 'defects' automatically rebut the presumption of soundness and are therefore considered to have preexisted service. 38 C.F.R. §§ 3.303(c), 4.9. B. Analysis The Veteran's service treatment records include a normal psychiatric evaluation during his May 1964 medical examination prior to enlistment. In July 1964, several weeks after beginning basic training, the Veteran was admitted to the hospital for cough and cold symptoms. During treatment, he indicated that he had felt extremely frightened and nervous since his enlistment in the Marine Corps and noted a long-standing fear of insects and high places. The Veteran was referred to the psychiatric service. The Veteran subsequently was diagnosed with emotional instability reaction. The examiners concluded that the Veteran suffered from a profound personality disorder that rendered him unsuitable for military service. The conclusion was that he had no disability that was the result of an incident of service or that was aggravated by service. Based on the foregoing, the Veteran was released from service. Post-service, the Veteran was hospitalized in a VA facility in August 1967, where he was diagnosed with emotionally immature unstable personality and possible schizophrenia. He was hospitalized again at a VA facility in October 1975, where he was diagnosed with depressive syndrome in a passive-dependent personality. The hospital record related the Veteran's history of depression to his marriage difficulties and back pain. In a November 1975 VA treatment record, the Veteran stated that all of his problems began when he was on active duty. A June 1983 VA psychiatric examination resulted in a diagnosis of dysthymic disorder. Subsequent VA treatment records from 2008 reflect that the Veteran received diagnoses of dysthymia, personality disorder, anxiety, and depression. A VA mental treatment follow-up record from September 2009 reflects that the Veteran did not have posttraumatic stress disorder. The Board notes that the Veteran was afforded a VA examination in October 2010 where the VA examiner diagnosed him with a depressive disorder not otherwise specified, a psychotic disorder not otherwise specified, and a dependent personality. As to etiology, the VA examiner opined that the Veteran's current diagnoses of depressive and psychotic disorders were not related to the Veteran's military service because they began after service. In addition, the examiner noted the Veteran's life-long adjustment problems due to his personality disorder and noted that characterological factors appeared to have made his adjustment to the military difficult. In November 2010, the Veteran asked his VA mental health provider to write a letter stating that his mental issues were related to his military service. His treatment provider explained that he was unable to write such a letter. In March 2011, the provider of the October 2010 VA examination furnished an examination addendum. The examiner again reviewed the claims file, to include his prior examination report, and indicated that his opinion had not changed. He further opined that the Veteran's personality disorder was not subject to any superimposed disease or injury, or was otherwise permanently aggravated during his military service, as the Veteran was not in combat, sexually abused, or otherwise exposed to trauma during military service. He reiterated that the Veteran's current depressive and psychotic disorders did not have an onset in military service; they also were not caused by or aggravated by his military service. In this case, there is competent and credible evidence that the Veteran has a personality disorder, and the Board notes that a personality disorder is defined by 38 C.F.R. § 3.303(c) as being a congenital or developmental defect, rather than a disease or injury within the meaning of legislation. In addition, due to the nature of such defects, the presumption of soundness does not apply. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects). The Board finds the October 2010 VA examination report and March 2011 supplemental opinion of significant probative value. Both opinions were based on review of the claims file, including the Veteran's contentions, and consideration of the evidence from prior mental examination and diagnostic testing. The opinion provider explicitly concluded that the Veteran had an Axis II personality disorder. As to whether the Veteran's personality disorder was subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability, the Board again finds the October 2010 VA examination report, in conjunction with the March 2011 supplemental opinion, very probative. The opinions were based on an interview with the Veteran, consideration of the Veteran's contentions, review of the claims file, and results of mental examination and diagnostic testing. Significantly, as noted above, the psychologist noted the Veteran's referral for a Psychiatric Consultation while he was on active duty; however, he also remarked that the referral resulted in a diagnosis of only a personality disorder. Significantly, the Veteran was not treated for or diagnosed with any Axis I mental disorder during his military service. The October 2010 examiner concluded the Veteran likely had significant difficulty adjusting to military service due to characterological factors; his depressive and psychotic symptoms developed after his military service. As such, the examiner opined that the Veteran's depressive and psychotic disorders were not related to or a result of his military service. In his March 2011 addendum, the examiner added that the Veteran's personality disorder was not subject to any superimposed disease or injury, or was permanently aggravated during military service. The examiner explained that the Veteran was not in combat, sexually abused, or otherwise exposed to trauma during his military service. He reiterated that the Veteran's current depressive and psychotic disorders did not have an onset in military service; they were also not caused or aggravated by the Veteran's military service. In short, while the mental professional considered the Veteran's reports of ongoing mental symptoms with onset in service, the examiner did not find evidence that a superimposed disease or injury was at least as likely as not related to or aggravated by the Veteran's service. Similarly, the examiner found that the Veteran's personality disorder was not aggravated during his military service. The Board finds these conclusions thorough with sufficient rationale that is supported by the evidence of record. As such, the Board affords the October 2010 examination report and March 2011 supplemental opinion significant probative weight. The Board acknowledges the Veteran's assertions that he developed a psychiatric disorder while he was on active duty. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of anxiety, and his statements in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, even though a lay person is generally competent to describe experiencing a continuity of symptomatology since service, that lay person is not necessarily competent to link the continuous symptomatology to a specific current condition or aggravation of that current condition or otherwise attribute such problems to a superimposed injury or disease. See generally Savage v. Gober, 10 Vet. App. 488, 495 (1997). In this instance, therefore, the Veteran, as a layperson, may be competent to report his history of symptoms and current complaints, but he has not been shown to be capable of making medical or psychiatric conclusions, especially as to such as determining the nature and etiology of the underlying disabilities responsible for his ongoing mental problems. The Board finds his current representations especially problematic given the service treatment records, which do not support his contention of treatment for a psychological disorder other than a personality disorder while he was on active duty. Indeed, the Board finds the record of the Veteran's in-service hospitalization prepared by medical professionals to be inherently more credible than statements offered by the Veteran many years later in support of a claim for monetary benefits. As such, the Board ascribes far more weight to the conclusions of the October 2010 and March 2011 medical professional who concluded that the Veteran's current depressive and psychotic disorders did not have their onset in military service, and that the Veteran's personality disorder was not subject to any superimposed disease or injury or was otherwise permanently aggravated during military service. The conclusions of the October 2010 and March 2011 examiner are further supported by the Veteran's VA mental health provider, who indicated in November 2010 that she was unable to write a letter relating the Veteran's mental issues to his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise). Finally, the Board notes that there is no competent medical evidence of record reflecting that the Veteran demonstrated an Axis I psychosis to a compensable degree within one year of discharge from active duty. As such, service connection for an acquired psychiatric disorder cannot be granted on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309. In summary, the preponderance of the evidence indicates that the Veteran's personality disorder is a congenital defect that was not subject to superimposed disease or injury in service, and no current depressive or psychotic disorder is otherwise related to service. As such, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a psychiatric disorder, to include emotionally immature unstable personality, dysthymic disorder, anxiety disorder, depressive disorder, and psychotic disorder, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs