Citation Nr: 1328956 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-44 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, other than post-traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted reopen a claim for service connection for PTSD. REPRESENTATION Appellant represented by: Lori Chism, Attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A review of the procedural history of the claim is in order. Initially, the Veteran claimed service connection for posttraumatic stress disorder (PTSD). That claim was denied by the RO in February 1997 and the Board ultimately denied the claim in May 2003. The Veteran appealed the Board's decision to the United States Court of Veteran's Appeals (Court). In a March 2006 decision, the Court affirmed the Board's decision to deny the claim for service connection for PTSD. However, the Court also remanded the claim for further development regarding other acquired psychiatric disorders with which the Veteran had been diagnosed. The Veteran did not appeal the Court's decision regarding service connection for PTSD to the Federal Circuit. The denial of service connection for PTSD became final. The issues of service connection for PTSD and a psychiatric disorder other than PTSD were clearly bifurcated by the Court in its March 2006 decision. The Board must follow suit. In compliance with the Court's March 2006 Order, and in May 2007, the Board remanded the claim regarding service connection for an acquired psychiatric disorder, other than PTSD. The claim was denied by the RO in May 2008 and then remanded by the Board again for further development in March 2011. The claim on appeal was most recently remanded by the Board in March 2012. The requested development has been accomplished and the issue has returned to the Board for appellate consideration. A review the record discloses that the RO issued a decision in February 2013 that denied reopening the claim for service connection for PTSD, and that the Veteran submitted a Notice of Disagreement in April 2013, contesting that decision. No Statement of the Case has been issued; therefore the Board directs that the RO issue one, as directed below, in accordance with 38 C.F.R. §§ 19.26 , 19.29 (2012) and Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires. Additionally, the Veteran appeared at a hearing before a Veterans Law Judge in May 2001. The Veterans Law Judge who conducted this hearing has since retired. The Veteran was advised of this fact in April 2007 and his right to have a new hearing. He subsequently informed the Board that he did not desire another hearing. A copy of the hearing transcript is contained in the claims folders. FINDINGS OF FACT 1. There is no evidence of treatment for a chronic psychiatric disorder in service or a diagnosis of a psychosis within one year of service discharge in August 1973; and the Veteran's acquired psychiatric disorder, variously diagnosed as schizoaffective, dysthymic and depressive disorders and paranoid schizophrenia, is not shown to be etiologically related to his active military service. 2. The Veteran's depressive disorder is secondary to his non-service-connected PTSD. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder (other than PTSD) that is the result of disease or injury incurred in or aggravated by active military service, and a psychosis may not be presumed to be of service origin. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103a, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a February 2008 letter of the criteria for establishing service connection for an acquired psychiatric disorder (other than PTSD), the evidence required in this regard, and his and VA's respective duties for obtaining evidence. In Pelegrini II, the Court also held that VCAA notice should be given before an initial agency of original jurisdiction (AOJ) decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. The Veteran was provided pre-adjudication VCAA notice via the above-cited February 2008 letter. Id. VA has also made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims files consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The Board notes that a July 2011 VA treatment report uploaded to the Veteran's electronic claims file located on the Veteran's Veterans Benefits Management System (VBMS) reflects that he is in receipt of disability benefits from the Social Security Administration for diabetes mellitus. The Veteran has not asserted that the records submitted in conjunction with any SSA application, if made, would be relevant to the service connection claim decided herein. Remanding the claim to acquire treatment records that may be in the SSA's possession will only unnecessarily delay adjudication of the claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (there is no duty to get SSA records when there is no evidence that they are relevant). Relevant to the duty to assist, in March 2012, the Board remanded the claim, in part, to have the RO obtain outstanding VA treatment records from the VA Medical Center (VAMC) in New Orleans, Louisiana, dated from February 2011 to the present. Thereafter, treatment records from the above-cited VAMC, as well as from the North Texas and Central Arkansas VAMCs, dated from February 2011 to November 2012, were uploaded to the Veteran's Veterans Benefits Management System (VBMS). The Board also remanded the claim on appeal to have a June 2011 VA psychologist provide an addendum opinion that addressed the etiology of the Veteran's acquired psychiatric disorder. The VA psychologist provided the addendum opinion in July 2012. (See July 2012 VA addendum to June 2011 VA examination report). The VA psychologist opined, in essence, that the Veteran's current acquired psychiatric disorder (depressive disorder) was secondary to his PTSD, a disability for which service connection has not been granted. The VA psychologist based her conclusions on an interview and full examination of the Veteran in June 2011 and review of all the post-service VA and private medical records contained in the Veteran's physical claims file, as well as those uploaded to his electronic VA claims file. The VA psychologist offered clear conclusions with supporting data as well as reasoned medical explanations connecting the Veteran's depressive disorder and non-service-connected PTSD. 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"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations and opinions regarding the issue decided herein has been met. The Board finds that no further assistance is warranted with respect to the above-cited service connection claim. VA may proceed with the consideration of the claim in the analysis below. II. Preliminary Matter The Board acknowledges that the Veteran's appeal originally began as a claim for service connection of PTSD; however, as discussed, the denial of the claim for service connection of PTSD became final when the Veteran did not appeal the March 2006 Court decision. The claim is no longer active and the Board no longer has jurisdiction over the matter. See Bernard v. Brown, 4 Vet. App. 384, 391 (1993) (If the two are separate "matters", then the Board would lack jurisdiction to address the merits of the veteran's benefits claim because the RO had not rendered a decision on that matter that could have been appealed to the Board. However, if they are merely different questions within a single "matter", then the Board would have jurisdiction to adjudicate the merits of the claim because the veteran had properly appealed to the Board from an RO decision on that "matter"); see also Godfrey v. Brown, 7 Vet.App. 398 (1995) (In a case in which issues were not components of a single claim for benefits under 38 U.S.C. § 1110 but are each were separate matters, the Board did not err in referring the claim that was a separate matter because the Board did not have appellate jurisdiction to review the Veteran's claim.). Recognition is also provided to the Court's holding that claims for service connection for PTSD typically encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1(2009). However, because the issue of service connection for PTSD has been finally adjudicated, it is no longer a sub-issue of the question of entitlement to service connection of an acquired psychiatric disorder. The issues of service connection for PTSD and a psychiatric disorder other than PTSD were clearly bifurcated by the Court. The Board must follow suit. In that regard, and pursuant to its March 2012 Remand, the RO adjudicated and denied the claim to reopen a claim of entitlement to service connection of PTSD. See Rating Decision dated February 2013. The Veteran has initiated his appeal on that issue. However, the Board finds that there is no need to delay the final adjudication of the present appeal even though the VA examiner determined that the Veteran's diagnosed depression is due to PTSD. The two issues/appeals are not inextricably intertwined as suggested in the March 2012 Remand. The Board emphasizes that there is a final decision denying service connection for PTSD. If service connection for PTSD were to be eventually granted, which could result in a grant of service connection for depression, the effective date of the grant service connection could be no earlier than the date of claim to reopen. 38 C.F.R. § 3.400(q). III. Relevant Laws and Regulations Service Connection-general criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as a psychosis, to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. The Veteran has been diagnosed with paranoid schizophrenia during a VA hospitalization from August to September 1996. VA clinicians have also diagnosed him with atypical psychosis and found him to have mild psychotic symptoms in June and September 2002, respectively; thus, the tenets of 38 C.F.R. § 3.303(b) have been invoked. (See VA hospitalization report, dated from August to 1996, and June and September 2002 VA treatment reports, respectively). IV. Merits Analysis The Veteran seeks service connection for an acquired psychiatric disorder (other than PTSD). He claims that he has an acquired psychiatric disorder (other than PTSD) that had its onset in service or is otherwise etiologically related thereto. The Veteran's STRs reflects that he was found to have been psychiatrically "normal" at service entrance in September 1971. On an accompanying Report of Medical History, the Veteran indicated that he had not had nervous trouble, loss of memory or amnesia, and periods of unconsciousness. He denied having had depression or excessive worry. In March 1972, he received treatment for a "personal prob." The examining clinician referred the Veteran to sick call for the next morning for "family problems." When the Veteran was seen in sick call the following day, the examining clinician found him to be occupationally maladapted. A July 1973 separation examination report reflects that the Veteran was found to have been psychiatrically "normal." The examiner assigned the Veteran a numerical designation of 1 under P on the Veteran's physical profile, i.e., PULHES (PULHES is the six categories into which a physical profile is divided. The P stands for physical capacity or stamina; the U for upper extremities; the L for lower extremities; the H for hearing and ear; the E for eyes; and the S for psychiatric). Then, as now, the number 1 indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit at service discharge. Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Veteran indicated that he was in good health. On DA Form 3082, Statement of Medical Condition, dated and signed by the Veteran in August 1973, he checked the box indicating that there had not been any change in his medical condition since his last separation examination. At the outset, the Board notes that the initial post-service evidence of any psychiatric disorder was in 1996. The Veteran was admitted to a VA hospital at that time for having had fits of rage, vivid dreams and suicidal ideation. The Veteran gave a history of having had vivid dreams that were associated with handling bodies at Homestead Air Force base in Florida and of having heard voices since before he left service in 1973. The Veteran was diagnosed as having chronic paranoid schizophrenia. (See August to September 1996 VA hospitalization report, page (pg.) 7)). Thus, in view of an absence of a chronic psychiatric disability found during service or until 1996, over two (2) decades after service discharge in August 1973, the Board finds that service connection for an acquired psychiatric disorder is not warranted on a direct basis (38 C.F.R. § 3.303(a)) or presumptive basis (38 C.F.R. § 3.309(a)). With respect to whether there is medical evidence of a current acquired psychiatric disorder, the Veteran has been diagnosed with paranoid schizophrenia, schizoaffective, dysthymic and depressive disorders. (See VA hospitalization and treatment reports, dated from 1996 to 2008, and VA psychiatric examination report and addendum, dated in June 2011 and February 2012, respectively). Thus, this case turns on whether there is evidence of a nexus between an acquired psychiatric disability (other than PTSD) and the Veteran's period of military service. No examiner, private or VA, has attributed the Veteran's acquired psychiatric disorder (other than PTSD) to an incident of military service. Pursuant to the Board's March 2012 remand directives, this exact question was slated to a VA psychologist, who had previously examined the Veteran in June 2011. In her February 2012 addendum, the VA psychologist specifically concluded that the Veteran's Depressive Disorder not otherwise specified, which was the same condition that had been documented throughout his medical records, was a separate and distinct psychiatric disability that was as least as likely as not secondary to PTSD impairment. She explained that the other the psychiatric diagnoses that the Veteran has carried since service such as Major Depression and Schizoaffective disorder were essentially the same condition as they are all within the grouping of Affective Disorders, and that diagnoses over time can vary between clinicians. Significantly, the VA psychologist further opined that without PTSD, it was less likely than not that the Veteran would have an affective disorder (depression). In essence, the VA psychologist determined that the Veteran's depressive disorder was secondary to his PTSD diagnosis, and that it was unlikely that the Veteran would have a depressive disorder if not for his PTSD. The VA psychologist also concluded that the Veteran's electronic medical records and those contained in his physical claims files showed that his depression complaints since service were due to the emergence of his PTSD. The VA psychologist emphasized that the Veteran's depressive disorder was secondary to his PTSD and without it, it was less likely that he would even have depression. That psychologist also opined that the other psychiatric diagnoses that the Veteran has carried were the same condition rather than being psychiatric disabilities that have resolved during the pendency of the appeal. See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013). The Veteran has not produced a competent medical opinion to contradict the conclusions set forth in February 2012 VA addendum opinion. The Board finds the VA psychologist's February 2012 addendum opinion as to the etiology of the Veteran's depressive disorder adequate and probative for VA purposes she relied on sufficient facts and data, provided a rationale for her opinion, and there is no reason to believe that she did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As noted above, inasmuch as the Board, as well as the Court in March 2006, have already denied service connection for PTSD, service connection for depression secondary thereto is not warranted. See 38 C.F.R. § 3.310 (2012). It is again noted that according to Veteran Appeals Control and Locator System (VACOLS)), the Veteran filed a notice of disagreement with a February 2013 rating action, wherein the RO determined that new and material evidence had not been received to reopen a previously denied claim for service connection for PTSD. As an appeal for the claim for PTSD on a new and material basis has not been perfected for appellate consideration, the Board does not currently have jurisdiction over the matter. The issues of service connection for PTSD and a psychiatric disorder other than PTSD were clearly bifurcated by the Court in its March 2006 decision. The Board must follow suit. In conclusion, the Board notes that an August to September 1996 VA hospitalization report contains a notation from a VA clinician that the Veteran undoubtedly suffered from a regressive thought disorder and base of integrated defect since military service. The clinician noted that the Veteran had tried to suppress the symptoms then projected them as delusionally-based experiences and PTSD symptoms. (See August to September 1996 VA hospitalization report). This opinion supports the above-referenced VA psychologist's opinion in that it reinforces her conclusion that the Veteran's psychiatric symptoms were projected as PTSD symptoms. Overall, the Board finds that because the preponderance of the evidence of record shows that the Veteran's depressive disorder is secondary to his non-service-connected PTSD, service connection for an acquired psychiatric disorder (other than PTSD) is not warranted. V. Conclusion In reaching the foregoing, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim for service connection for an acquired psychiatric disorder (other than PTSD), that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Further, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, an acquired psychiatric disorder fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). An acquired psychiatric disorder (i.e., schizoaffective, depressive and dysthymic disorders and paranoid schizophrenia) is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that psychiatric evaluations and testing and other specific findings are needed to properly assess and diagnose the disorder(s). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board recognizes the Veteran received his Bachelor's degree in social work, and his belief that his diagnosed schizoaffective, depressive and dysthymic disorders and paranoid schizophrenia disorder are related to his period of military service. The Board, however, places greater probative weight to the clinical evaluation provided by the VA examiner, who has a Ph.D. in psychology, and determined that it was secondary to PTSD, a disability for which service connection has not been awarded. Consideration has also been given to the Veteran's assertions of experiencing continuous symptoms of mental problems since service. He is again competent to report his symptoms. However, the Board does not find the Veteran to be a credible historian. First, while not outcome determinative, the Board notes that, aside from a single notation of the Veteran having a family problem during military service, his STRs, to include a July 1973 service separation examination report, do not contain any subjective complaints or clinical findings of any psychiatric pathology. The Veteran was evaluated as psychiatrically normal at service discharge. In August 1973, the Veteran indicated that there had not been any change in his medical condition since his July 1973 examination. In addition, the first post-service evidence of any psychiatric pathology was not until 1996, when the Veteran was admitted to a VA hospitalization for psychiatric symptoms, which is over two (2) decades after service discharge in August 1973. The Board notes that a significant period of time between the Veteran's service discharge and the first evidence of complaints or treatment for his claimed condition. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.) Thus, continuity of symptomatology is not demonstrated, and the contemporaneous lay and medical evidence may not be reasonably construed to find that the Veteran had continuing psychiatric symptoms during active duty service which could be causally related to his currently diagnosed acquired psychiatric disorders. In contrast, the fact that the Veteran did not then report any psychiatric symptoms strongly suggests that they were not present at that time and is highly probative evidence against the claim, as it tends to show no continuity of symptoms of an acquired psychiatric disability since active duty service. In other words, the Veteran's belated statements describing complaints of psychiatric symptoms since active duty service do not approach the probative weight and credibility of the lay and medical evidence contained in the service department records contemporaneous to that time. Thus, the Board finds that service connection for an acquired psychiatric disability is not warranted. Although the Veteran has an acquired psychiatric disability (other than PTSD), the evidence of record fails to demonstrate that it is related to his military service, but rather attributes it to his non-service-connected PTSD. ORDER Service connection for an acquired psychiatric disorder (other than PTSD), is denied. REMAND The Veteran has raised a Manlincon issue with regard to the petition to reopen the claim for service connection for PTSD. See Manlincon v. West, 12 Vet. App. 238 (1999). The RO denied the Veteran's petition to reopen the PTSD claim in a February 2013 rating decision. In April 2013, and well within one year of notification of that decision, the Veteran reportedly filed a Notice of Disagreement with the February 2013 decision. This constituted a timely Notice of Disagreement initiating an appeal of this additional claim. 38 C.F.R. § 20.201 (2013). To date, the Veteran has not been provided a Statement of the Case or given an opportunity to perfect the appeal of this additional claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). Therefore, the Board must remand this claim, rather than merely referring it. A Statement of the Case must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board. See Manlincon, 12 Vet. App. at 238. Accordingly, the case is REMANDED for the following action: The RO/AMC should furnish the Veteran with a Statement of the Case pertaining to the issue of whether new and material evidence has been submitted to reopen the claim for service connection for PTSD. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the 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). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs