Citation Nr: 1330677	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  02-08 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for polycythemia.

3.  Entitlement to a disability rating in excess of 10 percent for hemorrhoids.

4.  Entitlement to an initial disability rating in excess of 10 percent for hiatal hernia with gastroesophageal reflux disorder (GERD).

5.  Entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease (DJD).

6.  Entitlement to an initial disability rating in excess of 10 percent for left knee DJD. 

7.  Entitlement to an effective date prior to October 17, 2000, for the grant of service connection for hiatal hernia with GERD.

8.  Entitlement to an effective date prior to June 29, 2000, for the grant of service connection for right knee DJD.

9.  Entitlement to an effective date prior to June 29, 2000, for the grant of service connection for left knee DJD.

10.  Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU).

11.  Entitlement to service connection for a right shoulder disability.

12.  Entitlement to service connection for a left shoulder disability.

13.  Entitlement to service connection for a dental condition, claimed as extraction of several teeth.

14.  Entitlement to service connection for a kidney disability, claimed as a "hump" on the kidney.

15.  Entitlement to service connection for a right arm disability.

16.  Entitlement to service connection for a low back disability.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active duty service from November 1969 to May 1971.

This issue pertaining to service connection for an acquired psychiatric disability comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran testified at a Board hearing before the undersigned in June 2010.

The issue of entitlement to an initial rating in excess of 10 percent for hemorrhoids comes before the Board on appeal from an August 2002 rating decision.  A Travel Board hearing in front of another Veterans' Law Judge was held in September 2005.  A transcript of the hearing has been associated with the claim file.  In May 2006, the Board denied the Veteran's claim for a compensable rating for hemorrhoids.  In October 2006, the Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Remand, vacated the Board's decision and remanded the case for readjudication.  In March 2007, the Board again denied the Veteran's claim for a compensable rating for hemorrhoids.  In May 2008 the Court, pursuant to a Joint Motion for Remand, vacated the Board's decision and remanded the claim for readjudication.  Subsequently, in April 2009, the Board granted an initial 10 percent rating, which was effectuated in a June 2009 rating decision.  Thereafter, the Veteran again appealed this determination to the Court, which again pursuant to another Joint Motion for Remand, vacated the Board's decision with respect to its denial of a rating in excess of 10 percent, and remanded the case for readjudication.

The issues of entitlement to service connection for PTSD/psychiatric disability and for polycythemia, together with the issue of entitlement to an increased disability rating for hemorrhoids, were all before the Board in December 2010, when they were remanded for additional development.  The introduction section of that remand further explains certain characterization and jurisdiction matters with regard to those issues.  These three issues, together with the issue of entitlement to TDIU (determined to have been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App.447, 453-54 (2009)), were also remanded by the Board in August 2012.

When this case was remanded by the Board in December 2010, it additionally included the issues of entitlement to service connection for a bilateral knee disability, a hiatal hernia with GERD, disability manifested by spitting up blood, and disability manifested by bilateral tunnel vision.  However, these issues are no longer in appellate status and are not before the Board at this time.  The reasons that these issues are no longer in appellate status are explained in the introduction section of the Board's August 2012 decision and remand of issues in this appeal.

Appeals of the issues of entitlement to higher initial ratings and earlier effective dates for the May 2012 grants of service connection for hiatal hernia with GERD and DJD of both knees were initiated by the Veteran's notice of disagreement received in June 2012.  In August 2012, the Board remanded these issues to the RO in accordance with Manlincon v. West, 12, Vet. App. 238 (1999).  A statement of the case was issued in January 2013 and a substantive appeal was received in February 2013.  These issues are therefore now properly perfected on appeal before the Board.

The issues of entitlement to service connection for a right shoulder disability, left shoulder disability, and for a dental condition all come to the Board on appeal from a February 2009 RO rating decision (sent in March 2009).  A notice of disagreement was filed in April 2009, a statement of the case was issued in November 2009, and a substantive appeal was received in December 2009.

The issues of entitlement to service connection for a kidney disability, for a right arm disability, and for low back disability all come to the Board on appeal from a July 2010 RO rating decision.  A notice of disagreement was filed in July 2010, a statement of the case was issued in November 2011, and a substantive appeal was received in November 2011.

The Board observes that the Veteran was previously represented in this case by an attorney; the attorney withdrew from representation in a March 2013 signed statement submitted to the RO.  Correspondence following the withdrawal reflected that the Veteran may have believed that his prior appointment of a Veterans Service Organization (VSO) (appointed before he appointed the attorney) was effectively restored, but the Veteran did not submit the proper form to restore the former appointment.  The appointment of the attorney effectively revoked the prior appointment of the VSO; the withdrawal of the attorney effectively left the Veteran without representation.  In June 2013, the RO sent a letter to the Veteran explaining the situation to him and providing him with a form and instructions for appointing a new representative.  The Veteran has declined to appoint a new representative.

With the exception of the issue of entitlement to service connection for an acquired psychiatric disability (to include PTSD), each issue on appeal is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran does not have PTSD.

2.  An acquired psychiatric disability was not caused or manifested during the Veteran's active duty service, nor was an acquired psychiatric disability manifested within a year following active duty service, nor is any acquired psychiatric disability caused or aggravated by service-connected disability.


CONCLUSION OF LAW

An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated during the Veteran's active duty service, nor is any acquired psychiatric disability secondary to service-connected disability.  38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Duty to Notify

After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought.  The claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought in a letter dated in August 2005 (pertaining to the claim addressed with a final decision by the Board below).  Moreover, in the August 2005 letter (along with numerous subsequent letters associated with other service connection claims on appeal), the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

Further, the notice requirements apply to all five elements of a service connection claim: 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 of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the appellant was provided with notice compliant with Dingess in multiple letters including in a July 2008 letter (sent in connection with another service connection claim).

In aggregate, the notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim (and providing notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal); and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence.  While some of the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process.  The claim was subsequently readjudicated, most recently in the May 2013 supplemental statement of the case.  The VCAA notice was therefore effectively timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.)  See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

Duty to Assist

Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations.  The record in this case includes service treatment records, post-service VA and private treatment records, and VA examination reports.

The Board notes that the claims-file contains documentation of a negative response from the Shreveport VAMC in February 2011 regarding the availability of treatment records from 1971 to 1975 which had been sought in an effort to assist the Veteran.

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant.

The Veteran has been afforded a VA examination addressing the issue decided by the Board at this time, and the pertinent February 2011 VA examination report is of record together with November and December 2012 follow-up addenda to that report.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board finds that the VA examination report (as now amended) contains sufficiently specific clinical findings, medical opinions, and informed discussion of the facts of record to provide probative medical evidence adequately addressing the issue decided below.  The examination report obtained contains sufficient information to decide the issue on appeal.  See Massey v. Brown, 7 Vet. App. 204 (1994).  Thus, the Board finds that a further examination is not necessary with regard to this issue.

The Board finds that the RO has complied with the directives of the Board's remands, most recently the August 2012 remand, with regard to the issue addressed with a final decision by the Board at this time.  Specifically, the Board notes that the claims-file now contains addenda (dated in November and December 2012) to the February 2011 VA psychiatric examination report; these addenda, prepared by the same examiner who conducted the February 2011 examination, provide the requisite analysis, discussion, and clarification directed by the Board's August 2012 remand.

For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal decided by the Board at this time.  All known and available records relevant to the issues on appeal have been obtained and associated with the claims file; the appellant has not contended otherwise.  VA has complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the appellate issues at this time.


Analysis

The Veteran is seeking service connection for an acquired psychiatric disability, including claimed as PTSD.

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any 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).  Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

As a matter of law, it is not possible to establish service connection for a personality disorder on any basis.  38 C.F.R. §§ 3.159, 3.303(c).

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).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

PTSD

The Veteran contends that service connection is warranted for PTSD.  The Veteran contends, including as explained in a February 2011 VA PTSD examination report, that he suffers from PTSD as a consequence of an in-service stressor featuring an in-service motorcycle accident during which he was injured.  The Veteran has also suggested, as also described in the February 2011 VA PTSD examination report, that he may have PTSD as a result of medication he was prescribed during service.  The Board finds, however, that service connection for PTSD cannot be granted because the Veteran does not currently have appropriately diagnosed PTSD.

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  See 38 C.F.R. § 3.304(f).  The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).

Additionally, the Board notes that 38 C.F.R. § 3.304(f) has been amended.  The result is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity."  However, the Veteran's alleged stressors as presented in his communications with VA in this case are not directly related to "fear of hostile or terrorist" activity as contemplated by this regulation.

The Board briefly observes that there is no diagnosis of PTSD documented or alleged during the Veteran's military service.  In any event, even assuming there were in-service manifestations of psychiatric disability, service connection for PTSD still cannot be granted in this case without a current diagnosis of PTSD (or an adequate diagnosis pertaining to sometime during the pendency of this appeal).

The preponderance of the evidence indicates that the Veteran does not have PTSD.  There are no medical reports of record containing a verified diagnosis of PTSD with reference to the applicable DSM-IV criteria.  Moreover, when the Veteran was examined by a VA psychologist in February 2011, it was unequivocally concluded that a diagnosis of PTSD was not supported.  The examining clinical psychologist presented the clear competent conclusion that the Veteran's reported stressor events do not meet the DSM-IV stressor criterion and that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD.  The examiner concluded that the Veteran's psychiatric diagnoses include Axis I diagnoses of generalized anxiety disorder and dysthymic disorder along with an Axis II diagnosis of personality disorder (not otherwise specified).  This conclusion from the qualified expert specialist was informed by thorough interview and examination of the Veteran, together with review of the claims file.  The VA examiner reiterated, in a November 2012 expansion of the report (required to clarify other aspects of the February 2011 VA examination report), that "there was no objective clinical evidence to support the clinical presence of PTSD.  The motorcycle accident that occurred in service is not sufficient to support the diagnosis of PTSD."  Again, in December 2012, the VA examiner reaffirmed that "there has been and maintained by the undersigned there is no medical evidence of record to support PTSD."

The Board finds that the February 2011 VA examination report's conclusion is highly probative evidence indicating that the Veteran does not have a diagnosis of PTSD meeting the applicable DSM-IV criteria.  There is no probative evidence to the contrary showing a PTSD diagnosis during the pendency of this appeal meeting the DSM-IV criteria.  As the weight of the probative evidence weighs against finding that the Veteran has had a diagnosis of PTSD meeting the DSM-IV criteria during the pendency of this appeal, service connection for PTSD cannot be warranted.  38 C.F.R. § 4.125(a).  In the absence of a current diagnosed disability, service connection cannot be granted for such disability.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992).

The Board acknowledges that by raising this claim on appeal, the Veteran asserts that he actually suffers from PTSD.  The Veteran's lay testimony is competent to report his symptoms and his history of experiences, but his own account of symptom complaints and history have been interpreted by the competent psychiatric specialist as failing to meet the DSM-IV criteria for a PTSD diagnosis; the Veteran is not shown to be competent to establish a specialized diagnostic characterization of his psychiatric symptoms as PTSD as distinguished from the diagnosed generalized anxiety disorder, dysthymic disorder, and personality disorder.  While the Veteran is competent to report the symptoms he experiences, he is not competent to provide a diagnosis.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  Here, the psychologist serving as the VA examiner, with full knowledge of the Veteran's history of symptoms and events (including as self-reported), was nevertheless of the opinion that the Veteran does not have PTSD.

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Nevertheless, the Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Applying the law discussed above, the Board finds that psychological expertise and experience is required to interpret an array of symptoms or a stressor event history and determine the appropriate psychological diagnosis indicated.  The Veteran has not shown that he has such expertise and experience.  The Board also notes that pertinent regulations applicable to service connection claims for PTSD require that a diagnosis conform to the specialized criteria of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  See 38 C.F.R. § 4.125.  The Veteran has not shown that he has the requisite expertise and experience to apply the DSM-IV criteria.  In any event, the Board finds that the most probative evidence with regard to the question of a diagnosis of PTSD is the negative finding of the trained clinical psychologist that authored the VA examination reports discussed above.

The Board must conclude that the evidence of record weighs against finding that the Veteran has a diagnosis of PTSD.  With no current diagnosis of PTSD, service connection cannot be granted for PTSD.

After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against service connection for PTSD.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991).

Acquired Psychiatric Disability Other Than PTSD

The Veteran's service treatment records clearly document psychiatric problems and treatment during military service.  The Veteran's recent VA medical records clearly document diagnoses of acquired psychiatric disability, including as confirmed by recent VA examination reports.  The key question in this case is whether any chronic acquired psychiatric disability is etiologically linked to the Veteran's in-service symptoms or is otherwise causally related to his military service.

The Veteran's June 1969 entrance medical examination report shows that he was found clinically normal in all pertinent respects, including on "psychiatric" examination; the Veteran did endorse a history of "nervous trouble" at that time.

December 1970 and January, February, and March 1971 service treatment reports show that the Veteran was evaluated on a number of occasions for anxiety neurosis and reactive depression, with symptoms including complaints of "nerves" that the Veteran attributed to a marital conflict.  Psychological testing noted the presence of a reactive depression.  A treatment provider summarized in March 1971 that there appeared some possibility that the Veteran may adapt if the domestic situation resolved, but "I do not believe that that is possible now."

A March 1971 medical report associated with an application for humanitarian reassignment of the Veteran shows that a medical professional reported that the Veteran had repeated visits to the hospital emergency room and Air Force Clinic for a variety of somatic complaints without apparent organic basis.  The report indicates that the Veteran was seen by a doctor who made a diagnosis of psychogenic symptoms secondary to anxiety neurosis.  The report indicates that the base psychiatrist agreed with the diagnosis of anxiety neurosis and felt that much of the Veteran's symptomatology was based on his involvement in marital conflict.

April 1971 service treatment reports show that the Veteran was experiencing symptoms characterized by treatment providers as psychosomatism and was experiencing sleeplessness, worry, numb feeling in head, feeling 'weird' and having thoughts of dying.

A May 1971 psychiatric report (contained amidst service personnel records in the claims-file) describes that the Veteran had been known to the psychiatric department since April 1970.  The report indicates that psychiatric examination and psychological testing failed to reveal any evidence of any medical or psychiatric condition warranting hospitalization or action in accordance with AFM 35-4 or AFM 124-16.  The report indicates that there was evidence of "a character and behavior disorder, best diagnosed as a Psychopathic Personality, mild."  The report describes that the Veteran functioned well in the service until he and his wife were separated, and since that time had multiple complaints (the Veteran's service personnel evaluation reports and summaries confirm this information).  The report shows that the authoring Chief of Psychiatry concluded that the Veteran was "unable to adapt to the situation in which he finds himself," and an administrative discharge was recommended.

The Veteran's May 1971 service separation examination report shows that trained medical professionals found that the Veteran was psychiatrically normal and otherwise clinically normal in all pertinent respects.  The report contains the specific comment of a medical professional that the Veteran "[h]as no psychosis, neurosis, or psychoneurosis (or any other mental condition requiring processing under AFM 35-4).  Character and behavior disorder best diagnosed as psychopathic personality."  This report was prepared with express acknowledgment and discussion of the Veteran's recent history of pounding heart due to nervousness, weight loss due to worry, trouble sleeping with nightmares, as well as depression and worry due to nervous condition.  The associated medical history questionnaire documents that the Veteran endorsed a history of "depression or expressive worry" and of "frequent trouble sleeping."

Following service, an August 1972 VA neuropsychiatric examination report discusses the Veteran's psychiatric history with details generally consistent with those documented in the service treatment records.  Mental status examination revealed that "[t]here appears to be no continuing psychiatric illness on which to base a diagnosis."  Diagnosis was: "No neurologic or psychiatric disease found."

In September 1972, the Veteran's claim of entitlement to service connection for "nervous disability" was denied on the basis that no such disability was diagnosed.

There is otherwise no evidence indicating a pertinent psychiatric diagnosis during military service, within a year following service, or for many years following service.

The Veteran underwent a VA psychiatric examination in February 2011 in connection with this claim.  The VA examiner diagnosed the Veteran with generalized anxiety disorder and dysthymia and specifically confirmed that these were both acquired Axis I psychiatric diagnoses.  The VA examiner opined that the acquired Axis I psychiatric diagnoses "are not supported by any of the medical evidence of record while the Vet was active duty military."  The examiner opined that the Axis II diagnosis of personality disorder was shown during service.

As a matter of law, it is not possible to establish service connection for a personality disorder on any basis.  38 C.F.R. §§ 3.159, 3.303(c).  The VA examiner's opinion regarding the acquired Axis I psychiatric diagnoses is of critical importance in this case.

The Board has found that the February 2011 VA examination report, as originally written, did not present an adequate etiology opinion allowing for informed appellate review of this issue.  The fact that the Veteran's service treatment records contain significantly conflicting indications on this question requires a rationale for the VA examiner's bare conclusion that there is no support for finding a chronic acquired psychiatric disability manifested during service.

Significantly, a March 1971 Application for Humanitarian Reassignment states that a Dr. Baker "made a diagnosis of psychogenic symptoms secondary to anxiety neurosis."  Furthermore, "Dr. Blair, the base psychiatrist, ... agreed with the diagnosis of anxiety neurosis."  Additionally, a December 1970 service treatment record shows that the Veteran presented with symptoms assessed to be "anxiety hyperventilation."  Another December 1970 service treatment record shows that the Veteran was assessed to be experiencing "anxiety neurosis."  A January 1971 service medical examination report shows that the Veteran was diagnosed with "depression reaction."  Another January 1971 consultation request refers to the Veteran's "recurring ... anxiety neurosis."  A February 1971 service treatment record refers to the Veteran's continuing difficulties with "anxiety," consistent with other February 1971 documentation of consultations concerning consistent symptom problems.  A March 1971 service consultation report describes repeated visits involving psychiatric difficulties.  An April 1971 service treatment record shows that the Veteran presented with symptoms assessed at that time to be "psychosomatism."

The May 1971 service separation examination report stated that the Veteran's character and behavior disorder was best diagnosed as psychopathic personality, and an August 1972 VA neuropsychiatric report repeated this finding.  However, the Veteran's service treatment records indicate that competent medical and psychiatric professionals had diagnosed an anxiety pathology.  This evidence would seem to contradict the February 2011 VA examination report's conclusion that the currently diagnosed anxiety disorder is "not supported by any of the medical evidence of record while the Vet was active duty military."  The Board's August 2012 remand of this issue explained that discussion of the service treatment records expressly referring to the Veteran being diagnosed with an anxiety disorder is necessary for the Board to be able to understand and evaluate the probative value of the February 2011 VA examination report's conclusion in appellate review of this case.  The Board remanded the issue in August 2012 to seek clarification of the February 2011 VA psychiatric examination report to reconcile its conclusion with the apparently contrary evidence of record.

In November 2012, the same VA psychologist prepared a new VA examination report.  This report explains that the Axis I diagnoses currently found are generalized anxiety disorder and dysthymic disorder.  The VA examiner explains that these are the Veteran's only found chronic acquired psychiatric disabilities and that these were not shown during service because the documented in-service symptoms are attributed (1) to different acute problems that resolved, and (2) to personality disorder.  The VA examiner discusses pertinent service treatment records, including the diagnosis of psychogenic symptoms secondary to anxiety neurosis, and explains that in-service diagnoses were "based on the marital conflict in which the Vet was involved circa that time."  The VA examiner explained: "In current 21 century nomenclature his diagnosis would have been Marital Discord and Adjustment Disorder, which is not the case 41 years later."  The VA examiner points to the fact that the Veteran's May 1971 service separation examination report specifically shows that the Veteran was found to have no psychosis, neurosis, psychoneurosis, or any other mental condition requiring processing; the VA examiner cites that his behavior disorder was at that time determined to be "psychopathic personality."  The VA examiner explains that "[i]n 21 Century nomenclature" this is an identification of "personality disorder."  The VA examiner goes on to reiterate that the Veteran's current Axis II personality disorder is what is shown in the service treatment records and that the personality disorder was likely aggravated by the period of service.  The VA examiner explains that the presented analysis is based on the psychodiagnostic testing, the clinical diagnostic interview, the Veteran's verbal report, the mental status examination, and a number of specifically identified pieces of published psychological research.

The same VA examiner presented additional discussion of the issue in a December 2012 VA psychiatric examination report.  The examiner refers to the DSM-IV's contents regarding adjustment disorders and explains that "an adjustment disorder cannot last longer than 6 months after the stressor or its consequences, have terminated," and that the Veteran's in-service adjustment disorder is not a component of the current chronic Axis I diagnoses.  The Board finds this explanation to be adequate to support the examiner's finding that the current acquired psychiatric diagnoses are not connected with the in-service symptoms and diagnoses.  The Board reads this explanation in the light of the VA examiner's prior explanation that the in-service symptoms were not manifestations of any chronic acquired psychiatric disability at that time; the VA examiner explained that this finding was warranted because chronic psychiatric disability was specifically ruled out on examination at separation (and it was also ruled out on a VA psychiatric examination shortly following separation).

The Board again emphasizes that, as a matter of law, it is not possible to establish service connection for a personality disorder on any basis.  38 C.F.R. §§ 3.159, 3.303(c).  The VA examiner's indication of aggravation of a personality disorder during service is therefore no basis for a grant of service connection in this case.  The RO asked the VA examiner to clarify findings regarding the etiology of personality disorder, but the Board finds that no further discussion of the etiology of personality disorder diagnoses is necessary as such a diagnosis may not be service connected in any event.

The VA examiner's explanation that none of the current Axis I chronic acquired psychiatric diagnoses had onset or causation during military service is competent evidence informed by review of and presented with discussion of the pertinent evidence.  This is probative evidence weighing significantly against the Veteran's claim of entitlement to service connection.

The VA examination reports were authored by an appropriate expert specifically for the purpose of addressing the questions at issue in this case.  The reports thoroughly discuss the pertinent questions in this case.  The Board finds that the VA examination reports addressing this issue are, collectively, highly probative evidence, as they present a competent expert opinion informed by review of the pertinent evidence including service treatment records, post-service records, and direct inspection and interview of the Veteran.  The VA examination reports now comply with the conditions set out in the Board's remand, as the expert addressed all of the pertinent questions and information.  The VA examination reports are highly probative and present a medical opinion indicating no nexus (through causation or aggravation) between the Veteran's current acquired psychiatric disabilities and the Veteran's military service.  In light of the above, the VA examination reports weigh significantly against the claim of entitlement to service connection for any acquired psychiatric disability.

There is no competent evidence of record indicating any medical link of any kind between the Veteran's acquired psychiatric disabilities and his military service.  The Veteran is competent to report his lay-observable symptoms, but he is not shown to have the medical expertise or education to establish a specific diagnosis or an etiological link between an acquired psychiatric disability and the events and symptoms he experienced during military service.  The Veteran's assertion that he currently has an acquired psychiatric disability as a result of his military service is not competent evidence establishing a medical etiological link, and there is otherwise no competent evidence of record indicating that such a medical etiological link exists.  The evidence indicates that the Veteran had manifestations and symptoms during service of personality disorder (for which service connection may not be granted) and of an acute adjustment disorder (which no competent evidence indicates has been manifested or diagnosed during the pendency of this appeal).  The probative evidence, including the Veteran's service treatment records, post-service medical records, and VA examination reports indicate no onset of his current acquired chronic psychiatric disabilities (as distinguished from personality disorders and distinguished from acute adjustment disorder) during service or for many years following service.

Although the Veteran may have been experiencing various psychiatric symptoms (associated with personality disorder or acute problems such as adjustment disorder) during service and at times following service, no evidence indicates that his current chronic acquired psychiatric diagnoses were diagnosed at any time within at least two decades following separation from service.  This lengthy period of years following service without evidence of onset of his current chronic acquired psychiatric disabilities weighs against the claim on a direct basis.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

The Board also acknowledges that the Veteran has suggested that he may have incurred psychiatric disability as a result of drugs provided to him by service medical professionals during his service.  However, no competent medical evidence of record includes any suggestion that any of the Veteran's psychiatric diagnoses are attributable to service-issued medications, nor does any evidence otherwise endorse this theory; the Veteran presented this theory to the VA examiner in this case, and the competent VA examiner found no nexus between any current acquired psychiatric disability and military service.  The Veteran is not competent to establish a nexus between psychiatric diagnoses and remote exposures to medications on the basis of his uncorroborated lay statements alone.

The probative evidence in this case weighs against finding that the Veteran has an acquired psychiatric disability that has been caused or aggravated by military service.  The Board's review of the claims file reveals that there is no probative medical opinion or evidence significantly contrary to the VA examiner's conclusions or the VA examiner's citation of predicate facts.  The preponderance of the evidence is against finding that the Veteran's current chronic acquired psychiatric pathology has been caused or permanently aggravated by his military service.  Thus, the preponderance of the evidence is against entitlement to service connection for acquired psychiatric disability in this case.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision.

Conclusion

The Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for acquired psychiatric disability.

In reaching this decision, the Board has reviewed the entirety of the evidence of record but finds that there is no other evidence of record which probatively contradicts the findings presented in the most probative evidence discussed above with regard to the issue decided at this time.  The Board acknowledges that the claims file contains a quantity of other documents, but none of the information in these records substantially supports the Veteran's claim or otherwise contradicts the evidence deemed to be most probative in the discussion above.

Here, the evidence does not support finding that the Veteran has PTSD or that any of his diagnosed acquired psychiatric disabilities are related to his military service.  The Veteran has been afforded a VA examination with an adequate report and opinion (after follow-up addenda) in connection with this claim; the VA examiner provided clear findings and opinions with persuasive discussions of rationale weighing against the claim.  The examiner's pertinent findings and opinions are uncontradicted by the rest of the competent evidence of record.  No medical professional has provided any opinion indicating that the Veteran has an acquired psychiatric disability related to his military service.

The Board acknowledges that service connection may indeed be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  As discussed above, the evidence in this case indicates that the Veteran's symptomatology during and proximately following service was associated with personality disorder (for which, as a matter of law, service connection may not be granted) and/or acute adjustment disorder.  There is otherwise no competent evidence indicating that any symptoms that may have been continuously manifested from the time of service to the present are associated with the pertinent current acquired psychiatric diagnoses.  The identification of a specific psychiatric diagnosis with a particular manifestation of symptoms requires expertise, and the only competent expert evidence in this case addressing the matter indicates that the Veteran's current acquired psychiatric diagnoses were not part of the symptomatology manifested around the time of the Veteran's service.

The Board acknowledges the Veteran's belief that his claimed acquired psychiatric disabilities are related to his military service.  However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the diagnosis and etiology of a disability.  Consequently, the Veteran's own assertions as to diagnosis and etiology of a disability have no probative value.  Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  See also Robinson v. Shinseki, 312 Fed. Appx. 336 (Fed. Cir. 2009) (non-precedential) (confirming that, in some cases, lay evidence will be competent and credible evidence of etiology).  However, a determination concerning diagnosis of an internal disease or a determination concerning the possibility of a causal relationship between two different disabilities or between military service and a chronic disability which the evidence shows did not manifest until many years after service requires specialized training, and may therefore not be established by lay opinions on etiology.

As the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, the benefit-of-the-doubt rule does not apply and the claim is denied.  See 38 U.S.C.A § 5107.


ORDER

Service connection is not warranted for an acquired psychiatric disability, to include PTSD.  To this extent, the appeal is denied.


REMAND

In June 2013, the Veteran submitted an extra signed VA Form 9 substantive appeal that was not clearly specific or timely to any statement of the case or any unperfected appeal.  This June 2013 VA Form 9 referenced some of the various issues on appeal, but contained a mark clearly selecting the option "I want to appeal all of the issues listed on the statement of the case and any supplemental statements of the case that my local VA office sent to me."  Additionally, the June 2013 VA Form 9 contains the Veteran's mark to choose the option expressing "I want a BVA hearing by live video conference."  The Board interprets this June 2013 correspondence as referencing all issues currently on appeal (based upon the Veteran's checkmark referencing "all of the issues" in all supplemental statements of the case) in a clear request to be scheduled for a Board videoconference hearing.  The Board must accordingly consider the Veteran's request with regard to each issue on appeal.

The Veteran is clearly entitled to a Board hearing with regard to each issue for which he has not yet been afforded an opportunity to testify at a Board hearing.  A videoconference hearing must now be scheduled for those issues.  See 38 C.F.R. §§ 3.103(c)(1); 20.700(a).  The Veteran should be notified by letter of the date, time, and place of that hearing.

Furthermore, although the Veteran presented testimony at a Travel Board hearing in September 2005, the Veteran's Law Judge who conducted that hearing (not the undersigned) is no longer employed by the Board.  In October 2010, the appellant was informed of this fact and of his right to request a hearing to be conducted by a Veteran's Law Judge who will decide his case.  See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707 (2012).  The Veteran declined to be scheduled for a new hearing at that time.  However, the Board does not view that as a foreclosing the Veteran's right to have a new hearing scheduled so that he may testify before a Veterans Law Judge currently employed by the Board.  With regard to any issue for which the Veteran has only offered hearing testimony before the Veterans Law Judge no longer with the Board, the Board believes it is appropriate that the Veteran's request for a new Board hearing be granted.

The Board finds that the only set of issues on appeal for which the Veteran is not properly entitled to a new Board hearing are those issues which were clearly the subject of the Veteran's June 2010 Board hearing before the undersigned Veterans Law Judge.  The June 2010 Board hearing before the undersigned featured five issues and three of those are no longer in appellate status.  The two issues still on appeal which were clearly addressed in the presentation at the June 2010 Board hearing are entitlement to service connection for (1) PTSD/psychiatric disability and for (2) polycythemia.  For each of the other issues on appeal, the Veteran's request to be scheduled for a Board videoconference hearing is granted; all of those issues must be remanded to the RO for the Veteran to be scheduled for a Board videoconference hearing.

The PTSD/psychiatric disability issue is addressed in the Board's decision, above.

The issue of entitlement to service connection for polycythemia does not require a new Board hearing (as the Veteran already had a Board hearing on this issue before the undersigned in June 2010).  However, final appellate review of the polycythemia issue must be deferred at this time as the issue is inextricably intertwined with one of the pending issues being remanded.  In this regard, the Board notes that an October 2012 VA examination report (prepared in accordance with the Board's August 2012 remand directives) explains that the Veteran is diagnosed with polycythemia that is probably secondary to hypertensive renal disease causing elevation of the EPO hormone.  As significant evidence of record indicates that the Veteran's polycythemia is caused by a kidney disease, the polycythemia service connection issue is inextricably intertwined with the kidney disease service connection issue on appeal (the outcome of the kidney disease issue may substantially impact the outcome of the polycythemia issue).  As the Veteran's claim of entitlement to service connection for a kidney disease is pending on appeal and being remanded at this time, the Board must defer adjudication of the polycythemia issue until the kidney disease issue is ready for final appellate review.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that when a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter).

Accordingly, the case is REMANDED for the following action:

The RO should schedule the Veteran for a videoconference hearing at the RO, in connection with his appeal; this hearing should be scheduled to address each of the issues remaining on appeal at this time with the exception of the issue of entitlement to service connection for polycythemia (as this issue was the addressed by testimony at the June 2010 Board hearing before the undersigned).  After the hearing is conducted, or in the event the Veteran withdraws his hearing request or fails to report for a scheduled hearing, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or 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).



______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs