Citation Nr: 1331328 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-13 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to May 1974. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied entitlement to service connection for depression, character disorder with drug abuse, and sociopathic tendency. The issue has been recharacterized as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). The claim was remanded by the Board in July 2010 and January 2013 for additional development. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDINGS OF FACT 1. PTSD has not been present during the period of this claim. 2. No acquired psychiatric disorder was present until more than one year following the Veteran's discharge from service, and no acquired psychiatric disorder present during the period of this claim is etiologically related to the Veteran's active service. CONCLUSION OF LAW Psychiatric disability was not incurred in or aggravated by active service, and the incurrence or aggravation of a psychosis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in RO letters sent in December 2005, March 2006, and January 2008 and an AMC letter sent in September 2010. Although the Veteran was not provided all required notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the AMC readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Veteran's claim was previously before the Board in July 2010 and January 2013 and remanded at those times for additional evidentiary development, to include obtaining VA treatment records, service clinical records, and a VA examination. The requested development was completed. The record reflects that service treatment records, service personnel records, and VA treatment records have been obtained. The Veteran and his representative submitted multiple written statements discussing his contentions. A VA examination was provided in October 2011 with an addendum medical opinion dated in November 2011. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination and addendum reports in this case are adequate for adjudication purposes. The examiner considered all of the pertinent evidence of record and the statements of the Veteran, and provided adequate rationale for the opinions stated, relying on and citing to the records reviewed. The AMC attempted to obtain records related to the Veteran's stay at Kitzingen Community Drug Program from December 1973 to February 1974. It received a negative reply for records from the National Personnel Records Center (NPRC) in April 2013. After sending a June 2013 letter informing the Veteran of the unavailability of those records and that if the records were in his possession they should be furnished within ten days, the AMC did not receive a reply. In a July 2013 memorandum of record, the AMC made a formal finding of unavailability, documenting that all proper procedures to attempt to obtain those service treatment records were followed. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate this claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service, but no compensation will be paid for disability resulting from abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic disabilities, including psychosis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, 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. 38 C.F.R. § 3.304(f). Personality disorders are not diseases or injuries for VA compensation purposes. 38 C.F.R. §§ 3.303(c). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran essentially claims that his acquired psychiatric disorder began during service and that he has experienced a continuity of symptomatology since that time. He reported that he had depression and thoughts of suicide since his commanding officer in Germany continually threatened him with prison. The Veteran indicated that he began to use drugs and alcohol at that time in order to self medicate and attempted suicide on one occasion with an M16 but could not pull the trigger. A DA Form 3349 (Physical Profile) dated in August 1973 notes that the Veteran was not to carry a weapon on duty to drug and alcohol abuse problems. An additional DA Form 3349 (Physical Profile) dated in November 1973 shows that the Veteran had emotional and attitudinal problems which might compromise his judgment and reliability due to adjustment problems which required transitional support through rehabilitation programs. It was further indicated that his access to classified information should be limited. In that same month it was shown that he was admitted to an alcohol and drug abuse control program at Kitzingen hospital (later referenced as Kitzingen Community Drug Program) in Germany for morphine use. The Veteran's February 1974 separation examination report indicates that his psychiatric status was found to be normal but contains a notation that he was drug-dependent or an opiate user. In his February 1974 Report of Medical History, the Veteran marked yes to having nervous trouble of any sort. It was noted by the examiner that he was "nervous all time". An April 1974 clinical record cover sheet from United States Army Hospital (USAH) in Wurzburg, Germany, details that the Veteran was transferred to Munson Army Hospital and shows a diagnosis of improper use of opiates. It was noted that the Veteran was declared a rehabilitation failure while in Kitzingen Community Drug Program from December 1973 to February 1974 after he continued to have three positive urine tests for morphine. After being approved for service separation in March 1974, it was indicated that the Veteran was transferred to Munson Army Hospital. In April 1974, the Veteran was admitted to an alcohol and drug abuse control program at Munson Army Hospital in Fort Leavenworth, Kansas. He reported that he had a history of abuse of opiates, heroin, and morphine and that he had used drugs prior to active duty, even having a drug history while in high school. An April 1974 narrative summary from that 12 day hospitalization shows discharge diagnoses of improper use of drugs, to include morphine, heroin, and opiates as well as moderate character disorder with drug abuse. An additional April 1974 treatment note reflects an impression of moderate character disorder with drug abuse and sociopathic tendencies. A clinical record cover sheet dated in May 1974 indicates that the Veteran was transferred to the VA Hospital in Minneapolis, Minnesota, for further treatment pending service discharge. Treatment records from the VA hospital in Minneapolis, Minnesota, dated in April and May 1974 do not show any diagnosed psychiatric disorder but do note the previously diagnosed character disorder and drug dependency findings provided when the Veteran was treated in Fort Leavenworth, Kansas. Service personnel records contain multiple counseling, reprimands, and several nonjudicial punishments under Article 15 of the Uniform Code of Military Justice (UCMJ). The following list describes some of those incidents: * April 1972 - use of a habit forming narcotic drug (marijuana) and failure to report * May 1972 - use of hashish and absent without leave (AWOL) from his place of duty * May 1972 - failure to obey an order * June 1972 - failure to secure weapon and falling asleep at guard tower * September 1972 - wrongfully appropriating a quarter (1/4) ton vehicle * November 1972 - failure to report to place of duty * November 1972 - struck first lieutenant with fist * November 1973 - behaved disrespectfully toward first lieutenant, and as a result of intoxicating liquor was incapacitated for the proper performance of his duties * December 1973 - possession of a hypodermic syringe, needle and other drug related paraphernalia In his October 2005 claim, the Veteran essentially asserted that he developed depression in service in 1972 and that it has continued since then. A July 2005 police report indicates that the Veteran had attempted suicide with a rifle. The Veteran was tasered and secured before being taken to the emergency room. VA treatment records dated in July 2005 reveal that the Veteran was admitted for inpatient hospitalization after a suicide attempt. The Veteran was noted to deny problems with depression prior to that time but reported heavy alcohol use and history of heroin prior to joining the service. The examiner noted diagnoses of depression NOS (not otherwise specified) and ETOH abuse with moderate Avis IV stressors. VA treatment records dated from October 2005 to March 2009 show the Veteran was receiving individual psychotherapy and note diagnoses of alcohol dependence (maintaining sobriety/in early full remission), polysubstance abuse (in early partial remission), depression, recurrent major depressive disorder (MDD), antisocial personality disorder, and denial of suicidal intent. Lay statements from friends and family members received in December 2005 and January 2006 show their assertions that the Veteran was different when he returned from service, to include being withdrawn and depressed, and that he was using drugs. His brother indicated that the Veteran had told him that he attempted suicide during service in Germany and was told by his captain that he was going to prison not Vietnam. The Veteran underwent a VA Disability Benefits Questionnaire (DBQ) Initial PTSD examination in October 2011. After conducting the examination, performing clinically-indicated diagnostic testing, and reviewing the claims folder, the examiner indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. The examiner acknowledged reported stressor claims, including the Veteran's numerous problems with his captain in Germany during active service. It was noted that the most troubling incident to the Veteran was that the captain threatened to put him in prison for unknown reasons. The Veteran then indicated that, "the happiest time was when we were on high alert to go to Vietnam because I could have killed him over there." The Veteran reported no other threats and no physical/sexual violence, and denied other traumatic events. The examiner marked that the reported stressor did not meet criterion to support a diagnosis of PTSD. The examiner did diagnose personality disorder, NOS with cluster B features, and stated that personality disorders were developmental and not the result of the Veteran's claimed stressors. In addition, the examiner diagnosed depressive disorder NOS, opining that it was less likely than not related to the claimed stressor and most likely secondary to problems associated with his personality disorder. The examiner also listed diagnoses of alcohol dependence, cocaine dependence, and heroin dependence in remission per the Veteran's self-report. Additionally, the examiner highlighted that the Veteran's insight was very limited making it unlikely that he was a reliable historian. In November 2011 VA examination addendum, the examiner opined that the Veteran's personality disorder was developmental in nature and not a result of military service. He further opined that the Veteran's depressive disorder was related to problems stemming from his personality disorder and not related to military service. VA treatment records dated from March 2009 to July 2013 show diagnoses of recurrent MDD, alcohol dependence NOS (sober since July 2005), antisocial personality disorder, and polysubstance abuse in early remission. A PTSD screen was negative according to a March 2012 treatment note. In an October 2012 treatment record, the examiner noted that the Veteran was followed in Mental Health for antisocial personality disorder, depression, and insomnia issues. VA mental health treatment records dated in March 2009, March 2012, August 2012 and October 2012 show continued diagnoses of MDD and alcohol dependence in remission. Stressors were noted to include physical pain, potential foreclosure, and job-related stressors (as he missed his work due to pain). After a thorough review of the evidence of record, the Board concludes that service connection is not warranted for psychiatric disability. As an initial matter, the Board notes that there is no competent evidence showing that the Veteran has ever had PTSD. Moreover, as discussed above, the October 2011 VA DBQ examiner specifically indicated that the Veteran does not meet the diagnostic criteria for PTSD. While a moderate character disorder was noted in the service treatment records, antisocial personality disorder was shown in post-service VA treatment records, and personality disorder NOS with cluster B features was diagnosed in the October 2011 VA examination report, personality disorders are not diseases or injuries for VA compensation purposes. Similarly, while there is some evidence of drug and alcohol abuse in and subsequent to service, direct service connection for drug or alcohol abuse is precluded by law. The Board is cognizant that the Veteran currently has an acquired psychiatric disorder, as noted in the post-service medical evidence of record. However, there is no evidence showing that he was found to have an acquired psychiatric disorder in service or until years thereafter. Moreover, there is no competent evidence of the presence of a psychosis within one year after the Veteran's discharge from service or of a nexus between any current acquired psychiatric disorder and the Veteran's active service. In fact, in the October 2011 VA DBQ examination report and November 2011 addendum opinion, the VA examiner specifically concluded the Veteran's acquired psychiatric disability was less likely than not related to his claimed stressor and most likely secondary to problems associated with his personality disorder. In addition to the medical evidence, the Board has considered the lay statements of the Veteran and other individuals that he self medicated in-service symptoms with drugs and alcohol, was depressed, withdrawn, and used drugs after service discharge, and has a current psychiatric disorder due to his military service. In this regard, the Board finds those lay statements as to the symptomatology associated with the claimed psychiatric disorder and the Veteran's military experiences to be both competent and credible. However, as lay persons, the Veteran, his friends, and his family members are not competent to render a diagnosis of PTSD or any other acquired psychiatric disorder. In any event, even assuming that the lay statements by the Veteran and other individuals of record are competent evidence of the presence of an acquired psychiatric disorder, those statements are clearly of less probative value than the medical evidence indicating that his current acquired psychiatric disorder is unrelated to his active service. Accordingly, the Board must conclude that service connection is not warranted for psychiatric disability. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for psychiatric disability, to include depression and PTSD, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs