Citation Nr: 1331932 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-15 384A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from April 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim for service connection for an acquired psychiatric disorder. Subsequently, in March 2011, the Board remanded the Veteran's claim for further evidentiary development and adjudication. In that remand the Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with VCAA-compliant notice, provide the Veteran with a VA examination, and then re-adjudicate the claim. The AOJ provided the Veteran with the requisite notice via a letter in April 2011 and scheduled the Veteran for VA examination, which was conducted in April 2011, with addendum opinions issued in September 2011 and December 2011. The AOJ issued a supplemental statement of the case (SSOC) in March 2012. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2011. A transcript of the hearing has been associated with the Veteran's claims file. In this instance, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified a specifically diagnosed psychiatric disability without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for "mental problems," including depression specifically, the Board notes that the Veteran has been diagnosed with and sought treatment for multiple acquired psychiatric disorders, including both anxiety disorder and depression. The Board thus finds that, pursuant to Clemons, supra, the Veteran's service connection claim is more accurately classified as one for an acquired psychiatric disorder, to include depression. See Clemons, 23 Vet. App. 1 (2009). Nevertheless, in this case there are some limitations to the issue as noted in the paragraph below. Service connection was previously denied for PTSD in June 1997. There has been no indication that the Veteran is now pursuing an application to reopen such a claim or that a claim to reopen has been entertained by the RO. Consequently, references in this decision to the claim of service connection for an acquired psychiatric disability should be taken to mean any psychiatric disability other than PTSD or a psychogenic disorder affecting the nervous system, which was specifically denied in the Board's March 2011 decision. FINDINGS OF FACT 1. The Veteran clearly and unmistakably had an acquired psychiatric disorder prior to service that clearly and unmistakably did not increase in severity during service; no current psychiatric disability is otherwise traceable to his military service. 2. Psychiatric disability has not been caused or made worse by service-connected disability. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008, during the pendency of the appeal. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the Veteran to provide any evidence in the Veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In this case, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. In this respect, through February 2008 and April 2011 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the February 2008 and April 2011 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the AOJ also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The AOJ also requested that the Veteran identify any medical providers from whom he wanted the AOJ to obtain and consider evidence. Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned February 2008 and April 2011 notice letters. The Board further notes that notice regarding an award of an effective date and rating criteria was provided in the February 2008 and April 2011 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the February 2008 and April 2011 notice letters. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Records of the Veteran's ongoing treatment at the Oklahoma City VA Medical Center (VAMC), as well as with private treatment providers, have been obtained and associated with the claims file. Records from the Veteran's award of SSA benefits have also been associated with the claims file. In addition, the Veteran has been given the opportunity to submit evidence, and he and his representative have provided written argument in support of his claim. The Veteran has also testified before the undersigned Veterans Law Judge at a videoconference hearing in January 2011. Neither the Veteran nor his representative has otherwise identified, and the record does not indicate, existing records pertinent to the claim on appeal that need to be obtained. The Veteran also underwent VA examination in April 2011, with addendum opinions provided in September 2011 and December 2011, reports of which are of record. To that end, 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). Here, the Board finds that the VA examinations obtained in this case are collectively adequate, as they are predicated on full psychological examination as well as consideration of the medical records in the claims file and the Veteran's reported history. The examinations consider all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examination, and provide a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). Otherwise, neither the Veteran nor his representative has alleged that there are any outstanding records probative of the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. 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). The provisions of 38 C.F.R. §§ 3.307, 3.309 allow for a presumption of service incurrence for certain chronic diseases, including psychoses, if manifest to a compensable degree within a year of separation from qualifying military service. See also 38 U.S.C.A. §§ 1101, 1112. Every Veteran who served in the active military, naval, or air service after December 31, 1946, shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). To rebut the presumption of sound condition for conditions not noted at entrance into service, 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), 70 Fed. Reg. 23,027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is rebutted, "then the veteran is not entitled to service-connected benefits." Wagner, 370 F.3d at 1096. Regarding diagnosis of the Veteran's mental disabilities, the Board first notes that the Veteran's service treatment records are silent as to any psychological complaints; he was noted to be "normal" psychiatrically at a July 1971 examination and at a May 1972 separation examination. However, no entrance medical examination is of record. Service personnel records reflect that the Veteran had some behavior problems in service, including for being absent without leave and for failing to comply with orders. Post-service private treatment records reflect that the Veteran was first diagnosed with anxiety disorder not otherwise specified at an August 1998 VA examination. No specific etiological opinion was offered at that time, but there was an indication that the anxiety was due to physical problems. He has also been diagnosed with depression by treatment providers at the Oklahoma City VAMC and has received ongoing treatment at that facility since at least 2007. The Veteran has also submitted a statement from a private physician, dated in September 2008, in which the doctor acknowledged the Veteran's complaints of depression and stated that his tinnitus "could ... weigh on a person's psyche and contribute to depression." The Veteran underwent VA examination in April 2011 pursuant to the Board's March 2011 remand. Report of that examination reflects that the VA examiner reviewed the Veteran's claims file and conducted a thorough psychiatric examination. The examiner exhaustively reviewed the Veteran's claims file and treatment history. He noted that the Veteran denied having experienced combat or any other "critical incidents" during service. The Veteran did report having been "arrested and confined to the brig" on multiple occasions while on active duty, for a variety of infractions. He also reported having been treated for excessive alcohol use and fighting. When the examiner asked about the origin of his current mental health problems, the Veteran responded, "it's just the drugs and booze." He reported having grown up with alcohol, having "bootleggers" in his extended family and taking his first drink at sixteen years of age. The examiner further noted the Veteran's report of "many social, legal, financial, and physical problems related to his chronic alcohol use." The Veteran also reported a long history of marijuana use, as well as cocaine use. The examiner assigned a diagnosis of major depressive disorder and opined that the disability is not etiologically linked to the Veteran's time on active duty, or to his service-connected tinnitus or hearing loss. In so finding, the examiner noted that the Veteran himself related his depressive disorder not to service, or to any service-connected disability, but rather to "drugs and booze." Thus, the examiner concluded that the disorder is less likely than not related to service or to his service-connected hearing loss or tinnitus. The examiner considered the September 2008 opinion of the Veteran's otolaryngologist concerning a relationship between his psychiatric disorder and service but found that, due to the evidence of excessive alcohol and drug use that led to violence, infractions, and multiple punishments in service, the substance abuse is a more likely explanation for his current major depressive disorder. The examiner further found that, because the alcohol and drug use and resulting infractions manifested so early in the Veteran's service, it was more likely than not that the disorder predated his military service. The examiner provided addenda later in 2011. In a September 2011 addendum, the examiner again reviewed the Veteran's claims file and concluded that the Veteran's time in service did not aggravate his pre-existing psychiatric disorder beyond the normal progression of the disease. In so finding, the examiner again pointed out that the Veteran reported having begun drinking at the age of sixteen and having been punished on multiple occasions for a variety of rule infractions, including fighting and excessive alcohol use. The examiner again diagnosed the Veteran with major depressive disorder and opined that the disorder pre-existed service and was not worsened by service. In the December 2011 addendum opinion, the examiner clarified that the Veteran's major depressive disorder clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated by service beyond its natural progression. In so finding, the examiner again pointed to the Veteran's drinking prior to service and having experienced behavior and legal problems shortly after entering active duty. The examiner found that the Veteran's problems on active duty represented a "continuation of his long history of alcohol and illicit drug use" that began prior to service and continued until he began seeking treatment in 2008. The Veteran has also submitted statements to VA in support of his service connection claim and has testified before the undersigned Veterans Law Judge. To that end, the Veteran stated at his January 2011 hearing before the undersigned Veterans Law Judge that he began getting "into trouble" while in boot camp, shortly after entering service, and stated that he was "in the brig" on multiple occasions during service. The Veteran further stated that his psychiatric problems were due to alcohol and drugs. The Veteran has also submitted statements from his sister, who testified to having witnessed changes in the Veteran's personality following service. In the present case, there is no entrance medical examination of record to reflect whether any psychiatric abnormalities were objectively identified. Thus, because no such disorders were noted at entry into service, the Veteran is presumed to have been sound upon entering service in April 1968. The Board thus turns to the question of whether the presumption of 38 U.S.C.A. § 1111 has been rebutted. With respect to whether the presumption of soundness has been rebutted, the Board finds that there is clear and unmistakable evidence that the Veteran had an acquired psychiatric disorder prior to service that was not aggravated by service. The Veteran has stated on multiple occasions, including in multiple statements to VA and to his VA examiner, that he began drinking at the age of sixteen, prior to entering active military service. Treatment records are silent as to any complaints or diagnosis of a psychiatric disorder, although the record is replete with evidence of the Veteran's multiple infractions and punishments. The Veteran similarly attributed his problems to "drugs and booze" when he underwent VA examination in April 2011. Further, at that time the Veteran did not report that his psychiatric complaints were due to service or to his service-connected hearing loss or tinnitus. The April 2011 VA examiner reviewed the record, examined the Veteran, and concluded in the December 2011 addendum opinion that a major depressive disorder clearly and unmistakably predated military service and was clearly and unmistakably not aggravated thereby. None of the evidence suggests otherwise. It is the Board's conclusion, therefore, that the evidence clearly and unmistakably shows that the Veteran's acquired psychiatric disorder was present prior to service and was not worsened thereby. As noted above, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, taking into consideration the findings of the April 2011 VA examiner, particularly as set forth in the September 2011 and December 2011 addenda, the Board finds that the evidence is clear and unmistakable that the Veteran had an acquired psychiatric disorder before service that was not aggravated thereby. See Green v. Derwinski, 1 Vet. App. 320, 322 (1991) (evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation). To that end, the Board looks to the Veteran's report to the April 2011 VA examiner that his psychiatric problems are due to "the drugs and booze" rather than to his service, as well as to the VA examiner's conclusion that no aggravation occurred during active duty. The Board has considered the Veteran's contentions that acquired psychiatric disorder is due to his time on active duty. However, as a layperson, the Veteran has no competence to give a medical opinion on a medical matter such as the etiology of a psychological disability. Thus, while the Veteran is competent to report symptoms observable to a layperson; a diagnosis that is later confirmed by clinical findings; or a contemporary diagnosis, he is not competent to independently opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, while the Veteran is competent to report the symptoms he experienced, his assertions and reported history were considered by the examiner who provided the opinion that his disability clearly and unmistakably existed prior to service and was not aggravated thereby. As discussed above, upon reviewing all the evidence of record, the Board finds that there is clear and unmistakable evidence that that the Veteran's acquired psychiatric disorder existed prior to service and was not aggravated by service. The presumption of soundness is therefore rebutted. The Board concludes that the Veteran does not have an acquired psychiatric disorder that was incurred in or aggravated by service. In reaching this conclusion, the Board acknowledges that the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the evidence clearly weighs against the Veteran's claim, the doctrine is not for application in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs