Citation Nr: 1331281 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-32 849 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including schizophrenia/schizoaffective disorder and post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: David Oliver, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from September 1975 to April 1977. By rating action in July 2004, the RO denied service connection for schizoaffective disorder and PTSD. the Veteran and his representative were notified of this decision and did not appeal. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 decision by the RO which, in part, found that new and material evidence had not been received to reopen the claim for an acquired psychiatric disorder. A hearing before the undersigned at the RO was held in July 2012. In September 2012, the Board, in part, reopened the Veteran's claim for a psychiatric disorder and remanded the appeal for additional development. FINDING OF FACT The medical evidence of record establishes that the Veteran's acquired psychiatric disorders, including PTSD and schizoaffective disorder, clearly and unmistakably preexisted his military service and did not increase in severity during service or otherwise worsen beyond the natural progression of the condition in service. CONCLUSION OF LAW An acquired psychiatric disorder, including schizoaffective disorder and PTSD, was not incurred in or aggravated by military service nor may any current psychosis be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326. The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in December 2006. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). Furthermore, based on the communications sent to the Veteran and his representatives over the course of this appeal, he has actual knowledge of the evidence he is required to submit in this case. Based on his contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and testified at a hearing before the undersigned at the RO in July 2011. The Board also reviewed the Veteran's Virtual VA records. The Board finds that the October 2012 VA examination was comprehensive in nature and adequate upon which to base a decision on the merits of the issue addressed in this decision. The VA examiner personally interviewed and examined the Veteran, elicited a medical history and provided a rational explanation for the conclusions reached. Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). As noted above, the Veteran testified a Travel Board hearing before the undersigned in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the "hearing officer" who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the hearing, the VLJ fully identified the issues on appeal and asked specific questions directed at identifying the location of any potentially outstanding medical evidence. Furthermore, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned has complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Finally, the case has been subject to a prior Board remand. The AMC has associated all available treatment records with the claims folder and obtained adequate medical examination and opinion. As such, the Board finds that the agency of AMC has substantially complied with the September 2012 remand orders and that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied. Also, the Board finds that the AMC complied with the May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) and Dyment v. West, 13 Vet. App. 141, 146- 47 (1999). Laws & Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. An alternative method of establishing the second and third Shedden/Caluza elements for a chronic disability listed under 38 C.F.R. § 3.309(a), is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013); see also, Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition listed under 38 C.F.R. § 3.309(a) was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. A psychosis is one the included conditions. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-03. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012). In determining whether there is clear and unmistakable evidence to rebut the presumption of soundness, all evidence of record must be considered, including post service medical opinions. Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000) and Adams v. West, 13 Vet. App. 453 (2000). In July 2003, the VA General Counsel issued a precedent opinion which held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Further, the Federal Circuit's interpretation of section 1111 in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), is an authoritative statement of what that statute has meant since the date of enactment in 1958. Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) ("We made clear, moreover, that '[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.'"). As explained in Wagner, 370 F.3d at 1096, and more recently in Patrick, "both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service." Patrick, 668 F.3d at 1328. Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946 and a psychosis is manifest to a compensable degree within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). Psychiatric Disorder The Veteran contends that he had psychiatric problems prior to entering military service, and believes that his symptoms were aggravated during service because he spent a lot of time in the field while stationed in Alaska. The Veteran testified that he did not seek medical attention for any psychiatric problems in service but said that he was given an early discharge from service because of a personality disorder. (T p.12). Regarding the Veteran's contentions, while he is competent to describe his experiences and symptoms, the etiology of his psychiatric disorder may not be diagnosed via lay observation alone, and he is not shown to have the expertise to provide an opinion concerning the complex medical question of the nature or etiology of the claimed disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue of whether the Veteran's psychiatric disorder was due to or otherwise aggravated by service, this question falls outside the realm of common knowledge of a lay person. See Jandreau, at 1377 n.4 (Fed. Cir. 2007). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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 Veteran. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Historically, the Veteran did not report any psychiatric problems or abnormalities at the time of his service enlistment examination in September 1975, and his psychiatric status was normal on examination. Likewise, the Veteran's STRs were completely silent for any treatment, abnormalities or diagnosis for any psychiatric problems. At the time of his separation examination in March 1977, the Veteran reported a long history of nervousness. However, no pertinent abnormalities were noted, and his psychiatric status was normal on examination. The service personnel records showed that the Veteran had disciplinary problems in service and received two Article 15s (UCMJ); for failure to be properly prepared for guard duty in January 1976, and for possession of marijuana in November 1976. The records also showed that he was counseled by his platoon sergeant and commanding officer on several occasions concerning his attitude, military attire, conduct and job performance, and was given a rehabilitation transfer within the battalion, all to no avail. Statements by his commanding officer and platoon sergeant indicated that he had a negative attitude, was apathetic, lacked dependability and required close supervision at all times. The Veteran was recommended for expeditious discharge by his commanding officer in March 1977, and underwent a psychiatric evaluation in connection with the discharge proceedings. A mental status examination in March 1977, showed that his behavior was normal and that he was fully alert and well oriented. His thinking was clear, his thought process was normal and his memory was good. The examiner indicated that there was no evidence of any significant mental illness, and the Veteran was discharged from service in April 1977. The evidence of record includes an undated letter from a treating physician to the effect that the Veteran has been a patient at the Puget Sound Health Care System Mental Health Service since 1996, and that he has a diagnosis of severe chronic schizoaffective disorder and post traumatic stress disorder (PTSD). VA medical records showed that the Veteran was treated for various maladies on numerous occasions from 2001 to the present. A treatment note in August 2001, included diagnoses of schizoaffective disorder, PTSD with anxiety and panic due to childhood alcohol dependence (with history of seizures and DTs), marijuana dependence in remission, heroin and methamphetamine use, in full remission. A VA neurological evaluation report in December 2006, showed a history of memory problems for the past year, manifested by forgetting conversations and appointments, and loosing track of time. The Veteran also reported a history of head injuries with loss of consciousness as a small child, a stroke in 1996 with complete resolution of symptoms, and a history of a "seizure." The diagnoses on a private psychological evaluation in February 2007, included schizophrenia, paranoid type, bipolar disorder type II - depressed, PTSD and alcohol/cannabis abuse, in remission. In stressor statements, received in June 2004, the Veteran reported that he had episodes of depression, panic attacks and anxiety in service and that being out in the field made his symptoms of depression and hearing voices worse. He said that he started drinking heavily in service as a means of self-medication, and that even though his actions were noticed by his superiors, they were overlooked, that his pleas for help were ignored, and that he received no help from anyone. He also reported that when he was busted for smoking marijuana, he told authorities that he had a problem and requested help, but was denied. A letter from his mother, received in June 2004, was to the effect that while the Veteran was in Alaska, he was always asking for help with his "problems" but that no one ever seemed to care and that they just moved him around. She said that she always tried to intervene but that nothing came of it. In a letter received in August 2007, the Veteran reported that he had a lot of problems in childhood, was verbally and physically abused by his step father, and that he ran away from home at age 11. He said that he was sent to live with his grandmother and was hearing voices in his head, but that no one helped him. He said that he was "incorrigible" and that his grandmother made him a ward of the juvenile court, and that he later got into some "trouble" and was sent to a detention center when he was 16 years old. (Veteran reported at enlistment that he was charged with use of marijuana in September 1975.) He said that he had problems and was hearing voices when he joined the Army, but that he didn't tell anyone at first, but eventually confided in his First Sergeant (Huges) who wanted to help. The Veteran reported that he was reassigned to a RECON unit and spent a lot of time in the field, which made his symptoms worse. He said that he did a good job at hiding his problems from everyone, and was eventually given a general discharge from service. On VA QTC examination in November 2011, the examiner included a description of the Veteran's self-report history of psychiatric problems and his service and post-service history. The Veteran reported that his father was sentenced to prison when he was a child, and that his stepfather was emotionally, physically and sexually abusive. He said that his mother had psychiatric problems and that he was not close with his parents, but was close to his grandmother and an aunt. The Veteran reported that he started drinking when he was a teenager and used drugs and alcohol as a means of escaping his traumatic childhood. The diagnoses included PTSD due to childhood abuse, schizophrenia that began when he was a teenager, and polysubstance abuse. The examiner commented that his symptoms probably showed itself in service, but opined that his schizophrenic problems and PTSD pre-existed service enlistment and was not caused by or a result of service, and was not aggravated by service. At the direction of a September 2012 Board remand, the Veteran was examined by VA in October 2012, to determine the nature and etiology of any identified psychiatric disorder. The examiner indicated that the claims file was reviewed and included a detailed description of the Veteran's complaints, military and medical history, and the clinical findings on examination. The diagnoses included PTSD and schizoaffective disorder, depressive type. The examiner noted that the Veteran had an extremely dysfunctional upbringing, and that he was drinking and doing drugs as a child with adult family members, including alcohol, cocaine, heroin (began smoking it at age 10 with older brother), methamphetamines and marijuana. The examiner opined that the Veteran's PTSD and psychotic disorder pre-existed service and was not aggravated by service. In this case, the Board finds the VA opinions, in particular, the October 2012 opinion persuasive as it was based on a thorough review of the record and included a detailed discussion of all relevant facts. The VA examiner reviewed the claims file, interviewed and evaluated the Veteran, and offered rational and plausible explanation for concluding that his current psychiatric disorders were not related, in any fashion, to military service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.). Furthermore, the Veteran has not present any competent medical evidence to rebut that opinion. Thus, the most probative evidence of record consists of the October 2012 VA opinion. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran. Caluza, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board emphasizes that personal interest to receive benefits may affect the credibility of the evidence. Cartright, 2 Vet. App. at 25 (1991). In this case, the Board does not find the Veteran to be a reliable historian and that his assertions that he requested help for psychiatric problems in service is inconsistent with objective evidence of record, and is not believable. Although the Veteran testified that his "symptoms were noticed" in service and that he was moved to various positions to help alleviate his problems (T p. 10-12), the records showed that he was transferred because he was apathetic, poorly motivated and required constant supervision, and that he was not responsive to counseling or any attempts at rehabilitation. Similarly, in a letter received in June 2004, the Veteran reported that he had panic attacks, depression and auditory hallucinations in service, and that his requests for help were ignored. However, in a letter dated in August 2007, the Veteran reported that he did not tell anyone about his symptoms during service because he wanted to fit in. While he did report a long history of nervousness at the time of his service separation examination, he did not report any other psychiatric symptoms or problems, nor was he shown to have any psychiatric abnormalities at that time. In fact, he specifically denied any depression or excessive worry on his service separation examination. Furthermore, the Veteran was not shown to have a personality disorder or any other psychiatric problems in service, nor was he discharged from service because of a personality disorder. On the contrary, the Veteran's mental status was entirely normal at the time he was separated from service. The first reported treatment for any psychiatric problems was in 1996, some 19 years after service. (See undated letter from Dr. S. Lim). In this case, the Board finds that the Veteran's inconsistent and contradictory statements concerning the nature of his psychiatric problems in service, particularly when compared with the historical record, raises serious questions as to his ability to provide accurate and reliable information and reflects negatively on his credibility. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Under the circumstances, the Board finds that the Veteran's belief that his current psychiatric disorders were due to or otherwise aggravated by service is of limited probative value. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); see also, Voerth v. West, 13 Vet. App. 117, 119 (1999) (unsupported by medical evidence, a claimant's personal belief, no matter how sincere, is not probative of a nexus to service). Accordingly, the Board finds that the Veteran's opinion is of no probative value and declines to assign it any evidentiary weight. Based on the facts in this case, there is clear and unmistakable evidence that the preexisting psychiatric disorders did not worsen or increase in severity beyond the natural progress of the disease process in service. Therefore, the Board finds no basis for a favorable disposition of the Veteran's appeal, and the appeal is denied. ORDER Service connection for an acquired psychiatric disorder, including schizophrenia/schizoaffective disorder and PTSD, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs