Citation Nr: 1335206 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-17 178A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sleep disorder, to include a neuropsychiatric sleep impairment manifested by insomnia. 3. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from April 1973 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. These issues were remanded by the Board in December 2010 for evidentiary development. Although the development required by that remand was accomplished, further development was deemed necessary prior to a final adjudication and the Board once again remanded this matter in April 2013 for additional development, to include affording the Veteran a VA examination to determine the etiology of any psychiatric disorder other than PTSD, to include sleep impairment, and its relationship, if any, to his period of service. The requested development was completed and because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for PTSD, hip, back, and knee disorders were again raised by the Veteran in a July 2013 statement in support of claim. As those issues are not properly before the Board, having been previously denied in a December 2010 Board decision, they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Any current psychiatric disorder, to include a bipolar disorder, is not of service origin. 2. The Veteran does not currently have a separate sleep disorder of service origin. 3. The Veteran does not have any service-connected disabilities. CONCLUSIONS OF LAW 1. A psychiatric disorder, to include a bipolar disorder, was not incurred in or aggravated by active service nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. A sleep disorder, to include a neuropsychiatric sleep impairment manifested by insomnia, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 3. The criteria are not met for a TDIU. 38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.340, 3.341, 4.15, 4.16, 4.18 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a). 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). As it relates to the issues of service connection for a psychiatric disorder other PTSD and a sleep disorder, the Board notes that the Veteran's status has been substantiated. The Board observes that in a February 2006 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. As it relates to the claim for a TDIU, the Board observes that in a March 2006 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In March 2012, the Appeals Management Center (AMC), acting on behalf of the RO, provided the Veteran with notice as to the disability rating and effective date elements of the claim as part of the March 2012 supplemental statement of the case. Although some of the notice letters were not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and been given ample time to respond, the RO/AMC has also readjudicated the case by way of a supplemental statement of the case issued after the notice was provided, most recently in June 2013. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the Veteran and his representative have presented detailed argument which shows they are aware of what is needed to substantiate the claim. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal because any error in the notice did not affect the essential fairness of the adjudication. See generally Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining application of the rule of prejudicial error in the context of claims for VA benefits). VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. Service personnel records were also obtained. No other relevant records have been identified. The Board notes that this matter was remanded on several occasions for additional development, to include obtaining an opinion as to the etiology of any current psychiatric disorder, to include insomnia, and its relationship, if any, to his period of service. In conjunction with the most recent Board remand, the Veteran was afforded a VA examination in April 2013 with the examiner providing the requested opinion along with rationale to support the opinion. Neither the Veteran nor his representative have raised any questions as to the adequacy of the examination. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. He was also offered the opportunity to testify at a hearing before the Board, but he declined. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has claimed service connection for a psychiatric disorder, which if diagnosed as a psychoses would be considered to be a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) potentially applies in this case as it relates to the psychiatric claim, diagnosed as bipolar disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as psychoses, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Acquired Psychiatric Disorder, other than PTSD The Veteran maintains that his current psychiatric disorders are related to his period of service, to include as a result of having been jailed for attacking a commanding officer which was not his fault. He maintains that his current psychiatric disorders had their onset in service and have continued since his period of service. As an initial point, it is noted that the Veteran's claim for service connection for PTSD was previously denied by the Board and therefore is not on appeal here. The weight of the evidence shows that symptoms of psychiatric problems were not chronic in service. A review of the Veteran's service treatment records reveal no complaints or findings of psychiatric problems in service. At the time of the Veteran's September 1976 service separation examination, normal psychiatric findings were reported. The Board does note that service personnel records reveal that the Veteran received several courts martials in service. The first one resulting from an attack on a fellow service man, which resulted in a 6 month jail sentence. The second arose as a result of possessing illegal substances. The Board further observes that the Veteran was also charged with possession in April 1974 in a civil court proceeding. However, there was no indication that any of the instances were as a result of psychiatric difficulties or that psychiatric difficulties arose as a result of these incidents. Furthermore, the above incidents took place in 1974 and the Veteran remained in the service until receiving an honorable discharge in October 1976. There were also no findings of psychiatric problems/diagnoses in the years immediately following service. The first finding of psychiatric/substance abuse difficulties of record was in July 1992, when the Veteran was hospitalized for polysubstance dependence. At that time it was noted that the Veteran had been previously hospitalized for 28 days for drug dependency at the Miami VAMC in 1991. In conjunction with the April 2013 Board remand, the Veteran was afforded a VA examination in April 2013. The examiner indicated that the claims folder was available and that it had been reviewed. The examiner diagnosed the Veteran as having bipolar disorder. The examiner noted that the Veteran had had a history of depressive and manic mood swings in recent years with his mood becoming more stable when prescribed Quietapine with less frequent and intense mood swings. The examiner stated that the Veteran denied having had any emotional or abuse prior to service. The examiner observed that the Veteran had no treatment in service and that he started psychiatric treatment in 1992 at the Miami VAMC. He noted that the Veteran had been diagnosed over the years with bipolar disorder, mood disorder, and depression. He further observed that the Veteran was admitted in 2006 for cocaine abuse. He noted that the Veteran claimed that his bipolar disorder symptoms began in service but he never sought treatment in service and did not seek treatment after service until about 16 years later due to his substance abuse. The examiner also indicated that the Veteran stated that he was incarcerated for a period of seven months while in the Marines as a result of striking a commanding officer. He also noted having been arrest for possession of marijuana while in the Marines. The Veteran also reported using heroin for a three year period following his period of service. He further reported using cocaine from the 1980s until 2005 and stated that he had received treatment for his substance problems at the Miami VAMC. The examiner indicated that the Veteran had chronic sleep impairment as a result of his bipolar disorder. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by a claimed in-service injury, event, or illness. In support of his opinion, the examiner noted that there was no documentation indicating the onset of bipolar disorder until some 16 years after service. The examiner further indicated that there was no psychiatric treatment in service and that per the Veteran, he was incarcerated due to the fact that he was jumped by three Marines, one whom was an NCO that he struck during the altercation. Therefore, the clinical evidence does not reflect either in-service psychiatric difficulties or continuity of symptomatology, for reasons clearly noted above, with significant evidence against such a finding. Additionally, a psychiatric disorder was not shown to have manifest within a year of service separation, as it was first diagnosed more than a decade after separation. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Board has considered the statements of the Veteran, noting that the Veteran is considered competent to report psychiatric symptoms, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In this case, the Board finds that the Veteran's reported history of continued symptomatology since active service, while competent, is not sufficiently credible. As noted above, the Veteran did not report having any psychiatric problems in service, to include at the time of his September 1976 service separation examination. In addition to there being no findings of psychiatric problems in service, the Veteran, in numerous treatment records associated with the claims folder prior to receipt of his claim for service connection did not report that his psychiatric problems had their onset in service or were related to any incident in service. The above evidence is more probative than his recent assertions that his current psychiatric problems had their onset in service, voiced many years after service and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). Moreover, treatment records which have been associated with the claims folder make no reference to any findings of psychiatric problems until many years following service, which is a factor that the Board finds to be highly probative in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). As to the Veteran's belief that his current psychiatric problems are related to his period of service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation is a medically complex question that extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Moreover, the Veteran has not submitted competent or probative medical evidence even suggesting that any current psychiatric disorder, including his diagnosed bipolar disorder, is related to his period of service. In an effort to assist the Veteran in substantiating his claim, VA obtained an adequate and probative VA examination opinion. The April 2013 VA examiner's opinion, which is complaint with the Board remand and provides sufficient information to properly address the issue on appeal, was that it was less likely than not that the Veteran's diagnosed psychiatric condition was incurred in or otherwise caused by a claimed in-service injury, event, or illness. The Board affords this opinion the most probative weight as it was made with a full understanding of the Veteran's treatment history and is not questioned by any competent evidence. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In fact, the examiner specifically referenced the treatment records identified in the Board remand. Thus, the Board finds this opinion to be the most probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any current psychiatric disorder, including bipolar disorder, developed in service or to a compensable degree within one year following service, or is otherwise related to the Veteran's period of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Sleep Disorder, to include a Neuropsychiatric Sleep Impairment Manifested by Insomnia As it relates to the claim of service connection for a sleep disorder, the Board notes that the Veteran is competent to report that he has trouble sleeping. The Board further observes that the Veteran has been noted to have a sleep disorder in several VA treatment records. As an initial point, sleep impairment is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, service connection can be awarded if it is shown by competent evidence that the psychiatric sleep impairment either began during or was otherwise caused by the Veteran's military service. Here, the weight of the evidence shows that symptoms of sleep problems were not chronic in service. A review of the Veteran's service treatment records shows no complaints or findings of sleep problems in service. At the time of the Veteran's September 1976 service separation examination, normal psychiatric findings were reported, with no notations of sleep problems. There were also no findings of sleep problems in the years immediately following service. The first finding of any type of sleep impairment was not until many years following service. As to the Veteran's belief that he currently has a separate sleep disorder related to his period of service, as noted above, the question of causation and etiology is medically complex and extends beyond an immediately observable cause-and-effect relationship; and, as such, the Veteran is not considered to be competent to address etiology in the present case. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In the current case, the Veteran has not submitted competent or probative medical evidence specifically indicating that he has a current sleep disorder related to his period of service. In contrast, the Board has obtained an adequate and probative VA examination opinion in conjunction with the Veteran's claim. The April 2013 VA examiner indicated that the Veteran's sleep impairment problems were a symptom of his current bipolar disorder. The Board is giving this opinion the most probative weight. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran, was reviewed. Based on all of the evidence, the examiner rendered an opinion that was supported by a detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In fact, the examiner specifically referenced the treatment records identified in the Board remand. Additionally, the examiner's opinion has not been questioned by any subsequent medical opinion. Thus, the Board finds this opinion to be the most probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that the Veteran currently has a separate and distinct sleep disorder, to include a neuropsychiatric sleep impairment manifested by insomnia, related to his period of service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a veteran is unemployable by reason of his or her service-connected disabilities, but fails to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether a veteran's service-connected disability or disabilities are of such severity as to preclude him from obtaining and/or maintaining substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In this case, the Veteran does not have any service-connected disabilities. For this reason, he does not meet the percentage rating standards for individual unemployability benefits at 38 C.F.R. § 4.16(a), and no consideration to such benefits are available under 38 C.F.R. § 4.16(b). Because the undisputed facts show that there is no service-connected disability, thus no legal basis upon which to consider the claim for TDIU, the claim is without legal merit, and is therefore denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (stating that where the law is dispositive, the claim must be denied due to a lack of legal merit). ORDER Service connection for an acquired psychiatric disorder, other than PTSD, is denied. Service connection for a sleep disorder, to include a neuropsychiatric sleep impairment manifested by insomnia, is denied. TDIU is denied. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs