Citation Nr: 1329754 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 08-26 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from December 1975 to June 1978. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for bipolar disorder. The Veteran's specific claim related to service connection for bipolar disorder. The Court of Appeals for Veterans Claims (Court) has held that a veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider whether the Veteran's psychiatric symptoms regardless of the label attached to them warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In addition to the complaints of bipolar disorder, the evidence of record reflects that the Veteran has been diagnosed with various other psychiatric disorders. Accordingly, the Board has recharacterized the issue as service connection for an acquired psychiatric disability, to include bipolar disorder as reflected on the first page of this decision. At the outset of this appeal, the Veteran was represented by a private attorney. However, in October 2008, the attorney revoked representation. The Veteran remains unrepresented. In April 2010, the Board remanded this matter for further development, which has been completed, and the case has been returned to the Board for appellate consideration. In 2008, the Veteran was scheduled to appear at hearing before a Veterans Law Judge in conjunction with this appeal. He failed to report to that hearing. However, in August 2012, the Veteran contacted VA and stated that he had not been notified of the time and place of the hearing. Therefore, the Board granted the Veteran another hearing date. In February 2013, the Veteran presented testimony in a videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims folder. In March 2013, additional VA treatment records were associated with the Veteran's electronic claims file. This evidence has not been reviewed by the agency of original jurisdiction (AOJ). In a June 2013 letter, the Board notified the Veteran of the additional records and advised him of his right to have the AOJ review the evidence in the first instance. In a June 2013 response statement, the Veteran indicated that he was waiving his right to have the case remanded to the AOJ. Thus, the Board will consider the newly associated evidence in the first instance. 38 C.F.R. §§ 19.37, 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT An acquired psychiatric disorder was not shown in service, or within the first post-service year, and there is no competent evidence linking a current disorder to service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service, and a psychosis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1131, 1132, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded this claim for additional development in April 2010. The Board specifically instructed the Appeals Management Center (AMC)/RO to obtain all of the Veteran's outstanding records from the VA Healthcare System to include those dated from the 1980's and 1990's, identify and obtain records associated with disability benefits from 1991 to 1998, and to readjudicate the claims. Subsequently, additional VA treatment records were obtained and associated with his claims folder. However, in a June 2012 memorandum, the RO outlined all efforts that had been made to attempt to obtain the Veteran's VA treatment records from January 1980 to March 1985, and indicated that all efforts to obtain these records had been exhausted and further attempts would be futile. Likewise, in a July 2012 memorandum, the RO outlined all efforts that had been made to attempt to obtain the Veteran's Social Security Administration (SSA) records from January 1991 to December 1998, and stated that all efforts to obtain these records had been exhausted and further attempts would be futile. The Veteran's claim was then readjudicated in a July 2012 supplemental statement of the case (SSOC). Given the foregoing, the Board finds that there has been substantial compliance with its remand directives. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Duties to Notify and Assist In correspondence dated in October 2006, prior to the February 2007 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and available post-service medical records are in the claims folder. As noted above, the Board remanded this matter to obtain the Veteran's VA treatment records dated from the 1980's and 1990's and his SSA records from the 1990s. However, as detailed above, none of those records were obtained and the RO determined that these records were unavailable, all efforts to obtain the information had been exhausted, and further attempts would be futile. Therefore, the Board finds that additional efforts to obtain any of these records would be futile, and as such, the Board finds that VA has fulfilled its duty to assist in obtaining those records. The Veteran has not been afforded a VA medical examination in connection with his claim. However, no such examination is necessary. As will be explained in detail below, there is no evidence showing in-service incurrence of the claimed disability or that such disability is etiologically related to service. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. The record is missing critical evidence an event, injury, or disease occurred in service, McLendon element (2). Furthermore, the evidence does not show that McLendon element (3) is met. That is, as shown below, there is no indication that the Veteran's claimed disability is associated with service other than the Veteran's assertions of an etiological link to service, which the Board finds him not competent to make. Such unsupported assertions are insufficient to trigger an examination in this case. Also, as noted above, the Veteran presented testimony in a travel board hearing before the undersigned. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the February 2013 hearing before the Board. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate this service connection claim. The Veteran has not asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he currently has an acquired psychiatric disorder due to service. He has asserted that he was introduced to drugs during service and he used them to cope with the stress associated with service. He indicated that as a medic treating other service members, he internalized their problems. The Veteran also indicated that in July 1978, he had a nervous breakdown and was on suicide watch. See e.g. Veteran's statement dated July 2012; February 2013 Hearing transcript. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). Alternatively, service connection may be granted on a presumptive basis for certain chronic diseases, including psychoses, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Outside of the presumption, in order to show a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. This notion of continuity of symptomatology since service, however, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Initially, the Board notes that substance abuse disorders are generally considered to be the result of willful misconduct on the part of the Veteran. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a) (2012). For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d) (2012); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m) (2012). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (February 10, 1998). Therefore, service connection for an acquired psychiatric disorder related to substance abuse in service is prohibited by law. Throughout the appeal, the Veteran has been diagnosed with various psychiatric disorders. These diagnoses include depressive disorder, anxiety disorder, bipolar disorder, and an adjustment disorder, as well as drug and alcohol dependence. However, service treatment records are negative for any complaints or findings of an acquired psychiatric disorder. Notably, the examination report at service discharge reflected normal a psychiatric evaluation. (In passing, the Board observes that an August 2006 Mental Status Examination report noted the Veteran's report that he attempted suicide at age 15. Based on the examination report at service entrance and the Veteran's indication that he did not have/ever had nervous trouble of any sort/depression or excessive worry on the Report of Medical History at that time, the Veteran is presumed sound. See 38 U.S.C.A. §§ 1111, 1132 (West 2002). Moreover, there is no clear and unmistakable evidence of a pre-existing disability and lack of in-service aggravation to rebut this presumption. See VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178 (2004); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)). Additionally, there is no indication of a psychosis within a year of service discharge. Consideration on a presumptive basis for a psychosis is thus not warranted. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The first indication in the record of a psychiatric disability is not until sometime in the late 1980's/early 1990's, which is over a decade after service discharge. In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, there is no clinical evidence of treatment for or complaints for an acquired psychiatric disorder during the Veteran's period of active service. As there is no record of such a disorder in service or competent evidence that links the disorder to service, the Board finds that a VA opinion is not necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, as there is no competent, probative evidence establishing a nexus between military service and the Veteran's current acquired psychiatric disorders, service connection is not warranted. The Veteran has been accorded ample opportunity to present competent evidence in support of his claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (2012). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 93 (1991). In fact, review of the medical record shows that the Veteran's current acquired psychiatric disorders have been attributed to factors other than service. Treatment records dated in 1988 and 1989 show the Veteran's report of being depressed due to a diagnosis of sickle cell anemia, losing his job, and a breakup with a girlfriend. In October 1989, the Veteran was admitted to the psychiatric ward specifically for depression due to a diagnosis of sickle cell anemia. More recently, VA treatment record dated beginning around 2006 to 2012 show that the Veteran was depressed due to financial stress (losing his job, house, and cars), the death of his daughter, and his son's incarceration. Moreover, the Veteran has reported the onset of his symptoms as recent. For example, in November 2005, the Veteran reported that his depression started six months before. He affirmed this in September 2006 when he reported to a VA clinician that he had been depressed since the previous November. Additionally, in February 2007, the Veteran stated that he had been depressed for the last eight to nine months due to losing his job. Therefore, by the Veteran's own admission, his psychiatric disorder has manifested in conjunction with recent events and not service. The Board has considered the Veteran's assertions as to the etiology of his current psychiatric disorder. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the assertion as to the etiology of the Veteran's psychiatric disorder is unlike testimony as to a diagnosis of a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his disorder. See 38 C.F.R. § 3.159 (a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the lays statements with regard to the etiology of the current disorder are not competent evidence. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that pecuniary interest in benefits may affect credibility of claimant's testimony). As to the Veteran's assertions as to the onset of his psychiatric problems during service, the Board notes that the Veteran is competent to make such assertions. However, the Board finds that such statements are not credible. First, there is a lack of documented evidence of complaints or findings related to psychiatric problems for over 10 years following service discharge. While not dispositive of the issue, it goes toward the credibility when viewed in the context of the entire appeal. Second, service treatment records are completely negative for any findings of a psychiatric disorder, to include a nervous breakdown or suicide watch. The only mention of suicide attempts was made by the Veteran and only after he filed his claim for service connection. For example, in February 2006 and August 2006 examination reports and during a February 2011 VA clinical visit, the Veteran recounted his attempts at suicide in his late 20's and 30's. The Board notes that the Veteran was 21 years old when he was discharged from service. Third, there was no indication of any problems until over a decade following service discharge, and the competent evidence of record shows that he complained of psychiatric symptoms in conjunction with factors unrelated to service but due to health, financial, and family stressors. Simply put, the Board does not find the Veteran's assertions that his psychiatric disorder originated in service to be credible. In sum, the evidence shows that the Veteran developed an acquired psychiatric disorders many years after service and there is no competent link between the Veteran's service and current disorder. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disability, to include bipolar disorder, is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs