Citation Nr: 1329892 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-20 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and nervous/anxiety disorder. 2. Entitlement to service connection for a seizure disorder, other than epilepsy, partial complex, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from February 1971 to May 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This case was previously before the Board in September 2009 and November 2010. In the November 2010 decision, the Board reopened the appellant's claim for entitlement to service connection for an acquired psychiatric disorder and remanded the claims for additional development. In July 2009, the appellant testified at a hearing before the undersigned, via videoconference. A transcript of the hearing is associated with the claims file. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the November 2010 remand and will proceed to adjudicate the appeal. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has an acquired psychiatric disorder, to include PTSD, depression, and nervous/anxiety disorder that is related to service. 2. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the appellant has seizure disorder that is related to service, to include as secondary to an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder, to include PTSD, depression, and nervous/anxiety disorder was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. A seizure disorder, other than epilepsy, partial complex, was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. 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 appellant 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 appellant). 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 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) (West 2002); 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (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. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); see also 38 U.S.C. § 5103(a). Compliance with the first Quartuccio element requires notice of these five elements. See id. Prior to initial adjudication of the appellant's claim, a letter dated in July 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 490. A letter in April 2008 provided the appellant with notice of the specific information needed for a personal trauma incident that resulted in PTSD, including a questionnaire. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. The appellant's Social Security Administration records have been associated with the file. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. 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, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The appellant was afforded a February 2011 medical examination and December 2011 to obtain an opinion as to whether the appellant had any acquired psychiatric disability that was the result of service. The opinions were rendered by a medical professional following a thorough examination and interview of the appellant. The examiner obtained an accurate history and listened to the appellant's assertions. The claims file was reviewed. The examiner laid a factual foundation for the conclusions that were reached. Therefore, the Board finds that the examination and addendum opinion are adequate and completed in compliance with the November 2010 remand order. See Nieves-Rodriguez, 22 Vet. App. at 304. In regard to the appellant's claim for service connection for a seizure disorder, the Board finds that a VA examination is not required. The evidence does not reflect that there is some indication that the appellant has a seizure disorder that may be related to service. The appellant asserted that he had a seizure disorder related to an acquired psychiatric disorder, but as discussed below, the Board finds that service connection is not warranted for an acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the "chronic disease" became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. Feb. 21, 2013). III. Analysis Acquired Psychiatric Disorder The appellant contends that he is entitled to service connection for an acquired psychiatric disorder due to an assault in service. For the reasons that follow, the Board concludes that service connection is not warranted. The appellant's VA treatment records reflect that he has been diagnosed with psychiatric disabilities during the period on appeal. He has been diagnosed with an Axis I diagnosis of a mood disorder, not otherwise specified. See July 2007 VA treatment record. The appellant has also been diagnosed with an Axis I diagnosis of depressive disorder. See January 2009 VA treatment record. A December 2010 VA treatment record also noted an impression of "bipolar disorder, anxiety, depression, etc." As the appellant was diagnosed with psychiatric disorders during the period on appeal, the first element of a service connection has been met. The appellant has asserted that he was assaulted during service. In a June 2004 statement, the appellant stated that he walked by 4 or 6 men who "beat me so bad that I couldn't hardly get up. I think they sexually assaulted me while I was out. I went to the doctor next morning because I needed stitches in my head..." In a June 2008 substantive appeal, the appellant stated that he was raped by "an unknown person of Hispanic race" while he was in the service. In a June 2008 statement, the appellant stated that he was assaulted, raped and beaten so badly that he "couldn't hardly walk." He stated that he was sent to the infirmary hospital where he stayed for about ". . . 8 days then I could get around better I was sent some place then discharge[d]." He stated that the man told him that he could be discharged for something else so that he could not ever have to bring this up. At the July 2009 Board hearing, the appellant testified that he was assaulted during service, but his commander knew it happened. See July 2009 Board Hearing Transcript (Tr.) at p. 26. He stated that he went to the dispensary. Id. The appellant's service treatment records are silent for any complaints or treatment related to an assault or any psychiatric symptoms. An October 1978 enlistment examination report indicated the appellant was psychiatrically normal. A May 1971 service treatment record indicates the appellant had a pilonidal cyst, which he had for several years. The appellant was not considered medically qualified for enlistment or induction into the military service because of a pilonidal cyst and sinus which obviously preclude his satisfactory performance of duty. No conditions were noted, other than the pilomidal cyst, on a May 1971 medical board examination report. In a May 1971 statement, the appellant stated that to the best of his knowledge, there had been no change in his medical condition since his last separation examination. The appellant's service personnel records also do not note any assault, treatment for an assault, or psychiatric treatment. A March 1971 Article 15 record reflects that the appellant wrongfully defecated on the bed of another servicemember. A May 1971 disposition form indicated the appellant requested discharge for physical reasons which existed prior to his enlistment in the Army, specifically a pilonidal cyst. A November 1987 private treatment record reflected that the appellant was admitted to the hospital with possible drug ingestion. He was found unresponsive with empty bottles of medications in the sink as if he had taken them. The family stated that the appellant had been under a lot of stress and there was some stress in the marriage at this time. The appellant denied taking any medications when he woke up. He stated that he had been blacking-out when he had headaches. A November 1987 discharge report noted that the appellant refused to seek psychological counseling, but at the time of discharge he did not seem unduly apprehensive or depressed. A September 1998 VA treatment record noted that the appellant had a major psychiatric disorder with auditory and visual hallucinations. The appellant stated that "I've been depressed ever since I got hurt and disabled and I can't get out and do for my family. And last year my daddy died. That capped it off." Another September 1998 VA treatment record noted that the appellant complained of a 2 year history of depressed mood. He reported that he had been unable to work for 10 years. He reported persistent daily thoughts of his father who died 2 years ago. A May 2006 VA treatment record stated that the appellant reported that a long time ago he was assaulted and sodomized and he was having flashbacks about it. He stated that he was seen in a military clinic and had an evaluation was put on bed rest. The appellant stated that "he has had on going dreams but he has not reported it to many people but recently while he was searching for papers, trying to figure out what to do for his VARO appeal, all his [symptoms] started coming back with reminders of military life." In another May 2006 VA treatment record, the appellant again reported that he was assaulted and sodomized in service. He stated that he was seen by military doctors and treated for severe anorectal discomfort and back pain. He reported that for the past 6 to 8 weeks he had been having recurring nightmares of being attacked or sodomized. The appellant submitted several lay statements in support of his claim. In a letter received in September 2007, the appellant's mother stated that when her son returned from the army he was like a different person. He was no longer the polite respectful son that she had had. She stated that the appellant stayed in most of the time and would not socialize with friends of family. His mother stated that before joining the army, he was very outgoing. In another letter received in September 2007, V.P., the appellant's sister, stated that her brother changed while he was in the service. She stated that she remembered the appellant as honest, considerate, compassionate and caring but after coming home from the army, he was always on guard of his feelings and he no longer trusted others, even his own family. In a letter received in June 2008, V.P. stated that the appellant attempted suicide in 1989. She stated that the appellant has periods of antisocial behavior for weeks at a time. She stated that she did not think the appellant was mentally competent. The appellant was afforded a VA examination in February 2011. The VA examiner reviewed the claims file and recorded the appellant's reported history. The VA examiner found that the appellant did not have posttraumatic stress disorder. The examiner stated that the appellant's examinations while in the military suggested no evidence of any psychiatric symptomatology. Treatment notes indicated that in September of 1998 he reported a two-year history of depression and in November of 1998 he generated an abnormal MMPI-2 suggesting a possible fake bad profile. In September of 1999, he reported having a nightmare that was related to a childhood experience. The VA examiner noted that the service treatment records were silent with regard to any other mental health issues. The examiner noted that although the appellant contends that he did get treatment following his sexual assault, there are no records of that. The examiner noted that March 1971 incident in which he defecated on the bed of his platoon leader, but "there is no indication that was specifically related to the incident the Veteran alleges." The examiner stated that he did not find evidence of a post-military stress to account for PTSD symptoms. The examiner stated that, "No impairment in thought processing or communication was noted. I did not find evidence of another psychiatric disorder related to military experiences." In a December 2011 addendum opinion, the examiner noted that he again reviewed the claims file. The examiner stated that ". . . there was no evidence of any acquired psychiatric disorder noted in the February 2011 examination. The Veteran has received psychiatric diagnoses from mental health providers, but I can find no evidence linking any mental health condition to his time in the military." The examiner noted that when the appellant was seen for mental health treatment in 1998 he indicated that he had had depression for some two years' duration. At that time he linked his depression to physical health problems and the high cost of the many medications he said he had been taking. In addition, psychological testing was indicative of a profile that was not valid. The examiner found there was no evidence linking any psychological condition to the appellant's time in the military. As the VA examiner provided a thorough rationale for his opinions and based the February 2011 and December 2011 opinions on the February 2011 examination of the appellant and a review of the claims file, the Board finds the opinions to be probative. Although the VA examiner did not address the lay statements indicating a continuity of symptoms, the Board finds the statements to be less than credible, for the reasons discussed below. Thus, the opinions are adequate. The appellant has asserted that he has had an acquired psychiatric disorder that is related to service. Although a lay person may be competent to report the etiology of a disability, an acquired psychiatric disorder is not the type of disorder which is susceptible to lay opinion concerning etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Even if the appellant were competent to provide an opinion as to the etiology of a disorder which is typically confirmed by a psychiatric examination, the Board finds that the probative value of any such opinion is outweighed by that of the February 2011 examiner, who has education, training and experience in evaluating the etiology of an acquired psychiatric disorder. The appellant has asserted that he has had symptoms of a psychiatric disability since service. As discussed above, he also submitted lay statements from his mother and sister indicating that he changed after service. Lay statements may be competent to support a claim for service connection where the events or the presence of disability, or symptoms of a disability are subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant has not been diagnosed with a chronic disease listed in 38 C.F.R. § 3.309(a). Thus, service connection is not warranted based on continuity of symptomatology. The Board also finds the lay statements asserting that he has had continuous symptoms since service to be less than credible. The September 1998 VA treatment record clearly noted that the appellant reported that he had experienced depression after he became disabled and after his father's death. The September 1998 VA treatment record specifically noted the appellant complained of a two year history of depressed mood. The appellant did not report having been assaulted in service until May 2006, after he filed a claim for benefits. The May 2006 VA treatment record indicated that the appellant did not remember the symptoms until around that time. He reported a 6 to 8 week history of having recurring nightmares of being attacked. As the appellant's assertion that he has had psychiatric symptoms since service is inconsistent with other evidence of record, including evidence dated closer in time to his service, the Board finds that the lay statements indicating he has had psychiatric symptoms since service are less than credible. The Board also finds the appellant's statements regarding the claimed in-service assault to be less than credible. Although the appellant reported that he received psychiatric and medical treatment following the assault, his service treatment records and service personnel records do not make any references to an assault. The appellant also did not mention the assault more than thirty years following service. As the appellant's assertions regarding the assault are inconsistent with the contemporaneous evidence of record, the Board finds that the assertions are less than credible. Based on the evidence of record, the Board finds that service connection is not warranted for an acquired psychiatric disorder. The February 2011 VA examiner found the appellant did not have any diagnoses of a psychiatric disorder, including PTSD. Although the appellant's VA treatment records reflect that he was diagnosed with a mood disorder, not otherwise specified, a depressive disorder, and an anxiety disorder during the period on appeal, there is no evidence supporting a nexus between the disorders and service. The appellant's service treatment records and service personnel records are silent for any complaints or treatment for psychiatric symptoms or an assault. The appellant's VA treatment records from September 1998 indicated that the appellant had been depressed for two years and did not indicate that his depression was related to service. The February 2011 VA examiner found that there was no evidence linking any psychological condition to the appellant's time in the military. The Board finds that VA examination report and addendum opinion to be probative. As discussed above, the Board finds the lay statements regarding the continuity of the appellant's psychiatric symptoms since service to be less than credible. In sum, the evidence is against a finding that the appellant has an acquired psychiatric disorder that is related to service. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Seizure Disorder The appellant has asserted that he has a seizure disorder associated with his acquired psychiatric disorder. For the reasons that follow, the Board finds that service connection is not warranted. The Board notes that in the November 2010 decision, the Board denied the appellant's claim to reopen his claim for entitlement to service connection for epilepsy, partial complex. As noted in the November 2010 decision, in addition to that claim, the appellant claimed that he suffered seizures as a result of his claimed psychiatric disorders. As seizure disorders due to a psychiatric disorder may be entirely different form seizures caused by epilepsy, the appellant's claimed seizure disorder is separate and distinct from the previously adjudicated epilepsy, partial complex. In addition to service connection on a direct basis, service connection may be granted for disability which is proximately due to, the result of, or aggravated by, a service connected disease or injury. 38 C.F.R. § 3.310 (2012). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. See Wallin v. West, 11 Vet. App. 509. 512 (1998). As discussed above, the Board finds that service connection is not warranted for an acquired psychiatric disorder. The appellant does not have any service-connected disabilities. Thus, service connection is not warranted on a secondary basis. The Board has also considered whether service connection is warranted on a direct basis. The appellant has consistently described having seizures throughout the period on appeal. See e.g. March 2011 VA neurology note. The March 2011 VA treatment record noted that the appellant had partial seizure with secondary generalization, with positive double-stranded DNA (Rheumatologists thinking drug induced). The appellant has asserted that he has had seizures since service. He stated that he had seizures since 1974 following a traumatic event while in service and said he was knocked out. See December 2010 VA treatment record. The appellant's service treatment records are silent for any references to a seizure disorder. His entrance and discharge examination reports do not note any seizures. In a medical history questionnaire, the appellant denied having had epilepsy or fits. As noted above, a November 1987 private treatment record indicated that the appellant was hospitalized after being found unconscious. He stated that he had been having blacking-out spells whenever he had headaches. A May 1997 private treatment record noted that the appellant stated that he had seizures all his life. He stated that his parents told them that he had them as a young child and that he had seizures in service. He stated that the episodes became more frequent three to four years ago. He also noted that his paternal grandmother, his father and his youngest son had epilepsy. The appellant was diagnosed with partial complex epilepsy with occasional secondary generalization. A 1998 private treatment record note that he appellant described a history of seizures. He was diagnosed 10 to 11 years ago after an episode of unconsciousness. He said he was taken to the hospital and told he had tried to commit suicide. Two years ago he had another severe episode. An August 1998 private treatment record noted that epilepsy was suspected with partial complex. In an August 2004 VA treatment record, the VA physician noted that he was unsure if seizures were epileptic or psychogenic. A February 2006 private treatment record noted that there were questionable non epileptic psychogenic spells versus genuine epilepsy. A March 2006 VA treatment record noted the appellant had a past psychological history significant for a questionable seizure disorder. The VA physician indicated that "neurology has been skeptical of actual seizure disorder, as is this author." The appellant needed a video EEG monitoring test (VEEG) for diagnostic clarity. However, the March 2006 VA treatment record noted the appellant had refused a VEEG. The appellant has asserted that he has had symptoms of a seizure disorder since service. See Tr. at p. 24. However, the Board finds this assertion to be less than credible. The appellant's service treatment records are silent for symptoms of a seizure disorder or evidence of an assault. The May 1997 private treatment record noted that the appellant reported having had seizures all his life, including in service. The 1998 private treatment record indicated the appellant reported a 10 to 11 year history of seizures, which is supported by the November 1987 private treatment record indicating the appellant was hospitalized after being found unconscious. As the appellant has provided inconsistent statements regarding the onset of his seizures, the Board finds his assertion that he has had seizures since service to be less than credible. Based on the evidence of record, the Board finds that service connection is not warranted for a seizure disorder. The appellant has not been diagnosed with a specific seizure disorder, other than partial complex epilepsy. There is no evidence in the appellant's service treatment records that he had a seizure disorder in service. As discussed above, the Board finds the appellant's assertion that he has had a seizure disorder with an onset in service to be less than credible. The evidence does not support a finding of a nexus between a seizure disorder and service. As the appellant is not service-connected for any disability, service connection cannot be granted on a secondary basis. Additionally, Board previously denied the appellant's claim to reopen his claim for partial complex epilepsy. Consequently, the Board finds that the evidence is against a finding that the appellant has a seizure disorder, other than partial complex epilepsy, that is related to service. As the Board finds that the preponderance of the evidence is against the appellant's claim, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and nervous/anxiety disorder, is denied. Entitlement to service connection for a seizure disorder, other than epilepsy, partial complex, to include as secondary to an acquired psychiatric disorder, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs