Citation Nr: 1335670 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-10 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1975. These matters come before the Board of Veterans' Appeals (BVA or Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In November 2012, the Board remanded the claim for additional development. The Board notes that a BVA hearing was scheduled for October 2012; however, the Veteran did not appear. He has not since asked for it to be rescheduled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). FINDINGS OF FACT 1. In unappealed rating decisions dated in January 1999, August 1999, and September 2002, the RO denied the Veteran's claims for service connection for variously claimed psychiatric disorders, including PTSD. 2. Additional, relevant service reports have been associated with the claims file since the RO's September 2002 decision; and the claim is reopened for reconsideration. 3. In March 1974, the Veteran was arrested and underwent medical treatment after he used mescaline; his use of mescaline involved wrongdoing or known prohibited action, and it was the proximate cause of his injuries, arrest, and medical treatment. 4. The Veteran does not have an acquired psychiatric disorder, to include PTSD, bipolar disorder, or depression, that had its onset in service, or which is shown to be etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. New and material evidence has been received in the form newly received relevant service department records; the claim of entitlement to service connection acquired psychiatric disorder is reopened for reconsideration. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(c) (2013). 2. The Veteran's use of mescaline, and his subsequent injuries, arrest, and medical treatment in March 1974 were the result of his own willful misconduct. 38 U.S.C.A. §§ 105, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.301 (2013). 3. An acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression, were not incurred in, or as a result of, service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Sup. 2012); 38 C.F.R. §§ 3.1(n), 3.101, 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression, due to his service. With regard to the claim for PTSD, the Veteran argues that he has PTSD due to mistreatment during an arrest and detainment by a local police department in Radcliffe, Kentucky, during service at Ft. Knox in 1974. He argues that the police restrained his wrists and ankles, causing injuries, that he was handcuffed to a wheelchair for six hours, and to a bed all night, that he was put in a straight jacket, and that he was "brutally beaten" in an attempt to force him to confess to a crime. He asserts that he was "bleeding all over from my body from wounds that I have sustained," and that he had head trauma, stitches on his arms and back, and lacerations to his forehead. He states that he was not provided with food or water, and that he was not allowed to use the bathroom. See Veteran's statement, dated in August 2002, notice of disagreement, received in November 2004; statement (VA Form 21-4138), received in April 2013. The Board first notes that in January 1999, the RO denied a claim for service connection for PTSD, and that same month, this decision was sent to the Veteran by way of a cover letter. There was no appeal, and the RO's January 1999 decision therefore became final. See 38 U.S.C.A. § 7105(c) (West 2002). In August 1999, the RO denied a claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for "depression/paranoia, memory loss, and loss of balance." There was no appeal, and the RO's August 1999 decision therefore became final. Id. In August 2002, the Veteran filed an application to reopen his claims for service connection for PTSD, and for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151. In September 2002, the RO denied the claims. There was no appeal, and the RO's decision September 2002therefore became final. Id. In April 2004, the Veteran filed to reopen his claim for service connection for PTSD. In July 2004, the RO denied the claim. The Veteran has appealed. In March 2013, additional service records were received. In July 2013, additional service treatment records were received. Given the foregoing, this is a case where additional relevant official service department records were received subsequent to the prior final rating decision that denied service connection for PTSD. The Board finds that this evidence is relevant because it documents relevant treatment during service, as well as a number of disciplinary actions that are relevant to his claim. Under such circumstances, there is no need to undertake a new and material evidence analysis to determine if the claim should be reopened. 38 C.F.R. § 3.156(c) specifically provides that in such a case the claim will be reconsidered. Accordingly, the Board finds that the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression, is in appellate status under a merits analysis. The RO's September 2002 denial of the claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for "depression/paranoia, memory loss, and loss of balance" is not affected by the application of 38 C.F.R. § 3.156(c), as the service records received after September 2002 are not relevant to that claim. Id.; see generally Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). However, the U.S. Court of Appeals for Veterans Claims ("Court") has held that claims for psychiatric conditions should not be limited only to only one diagnosis, rather, they must 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 found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has therefore framed the issue broadly. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); a psychosis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the Veteran has not been diagnosed with a psychosis following service, see 38 C.F.R. § 3.384 (2013), and as a result, service connection via the demonstration of continuity of symptomatology does not apply to the claim. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for an organic disease of the nervous system when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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). There are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than a veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). VBA's Adjudication Procedure Manual, M21-1MR, also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1MR, Part IV, Subpart ii, 1.D.17.n. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). Compensation is not payable for a disability that is a result of the appellant's own alcohol or drug abuse. See 38 U.S.C.A. §§ 105, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1(n), 3.301(c) (2013); Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351; see also VAOPGCPREC 7-99, 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98, 63 Fed. Reg. 31,263 (1998). Given the foregoing, the term "acquired psychiatric disorder" is not intended to include a personality disorder, or alcohol or substance abuse. "Willful misconduct" is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard for, its probable consequences. Mere technical violation of police regulations or ordinances per se will not constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of injury, disease, or death. 38 C.F.R. § 3.1(n); see also Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998) (upholding validity of willful misconduct provisions). If intoxication results proximately and immediately in disability or death, the disability or death will be considered to be the result of the person's own willful misconduct. 38 C.F.R. §3.301(c)(2); Forshey v. West, 12 Vet. App. 71, 74 (1998). "Proximate cause" is defined as "that which, in a natural continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Id. at 73-74 (citing BLACK'S LAW DICTIONARY 1225 (6th ed. 1990)). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability, such disability will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3) An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). "Willful misconduct" means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs. (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n). Under 38 U.S.C.A. § 105(a), there is a presumption that an injury incurred during active military service will be deemed to have been incurred in the line of duty unless the injury was the result of the person's own willful misconduct or abuse of alcohol or drugs. Daniels v. Brown, 9 Vet. App. 348, 351 (1996). In all cases, section 105 establishes a presumption in favor of a finding of line of duty. If the BVA finds that an exception does apply (in this case, willful misconduct), and denies the claim solely on the basis of such exception, the Board must establish that denial of the claim is justified by a preponderance of the evidence. Daniels, 9 Vet. App. at 351; Myore v. Brown, 9 Vet. App. 498, 505 (1996). Personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2013); Winn v. Brown, 8 Vet. App. 510, 516 (1996), Beno v. Principi, 3 Vet. App. 439 (1992). The Veteran's service treatment records show that in January 1974, he complained of poor sleep and feeling tired and "nervous." There was no diagnosis. He was provided with Benadryl. On March 6, 1974, he was hospitalized at the Ireland Army Hospital for "toxic psychosis - mescaline." The reports note the following: he took mescaline on March 5, 1974, with very little recall since then. He was combative with police, and psychotic in the ER (emergency room). Upon arrival, he was resisting, delirious, restrained, and totally unresponsive to questioning. He was oblivious to all environmental stimuli. He had bruises, abrasions, and blood all over his body. He stated that he had been hit by a car. Following an injection of Thorazine, he calmed down. An X-ray of the skull was within normal limits. On March 11, 1974, he was noted to be fully recovered and doing well. The Veteran's separation examination report, dated in February 1975, shows that his psychiatric condition was clinically evaluated as normal. In the associated "report of medical history," the Veteran indicated that he had a history of "nervous trouble of any sort," "depression or excessive worry," and frequent trouble sleeping. He denied a history of a head injury. The report notes, "I was a patient in Ireland Army Hosp. Fell through glass - no sequalae." As for the post-service medical evidence, it consists of VA reports, dated between 1976 and 2013. This evidence shows that in 1985, the Veteran was hospitalized for almost four months, with diagnoses of mixed substance dependence, heroin, cocaine, alcohol. In November 1997, he was hospitalized for two days, with a discharge diagnosis of musculoskeletal pain due to cocaine use, myocardial infarction ruled out. Reports associated with VA domiciliary care, dated in 1998, show that the Veteran reported a history of the following: physical and sexual abuse during childhood, treatment in the Army after he "took LSD and had a bad trip," beginning use of heroin during service in 1974, two incarcerations (most recently between June and September of 1997), psychiatric treatment beginning in 1995, dislocated shoulders in a gang fight in 1976, a dislocated right shoulder in a gang fight in 1977, and HT (head trauma) in a gang fight in 1984. The Axis I diagnoses were rule out bipolar II, depressed with psychotic features, and an Axis II diagnosis of rule out cluster B traits. Other reports note PTSD, and a history of hospitalizations for head trauma in 1974 at Ft. Knox secondary to "having 'a bad trip' (mescaline),'" (with a notation that it was "secondary to problems he had with LSD"), head trauma secondary to being hit on the head with a lead pipe in 1984, and related to chest pain due to an accidental overdose on cocaine in November 1997. A February 1998 report notes a history of a 1984 head injury, and that a CT (computerized tomography) study indicated a skull fracture without intracranial bleed. See also March 1999 report. There was a notation of major depression. An evaluation form for mental disorders, covering treatment between March 1998 and September 1999, notes that the Veteran had been treated by the author, a physician, since February 1998. The report notes the following: the Veteran has been in sustained full remission from polydrug dependence for 22 months. He has issues apparently related to PTSD. The Veteran reported that he had been hospitalized for a few days during service "secondary to problems he experienced after having taken LSD." He has been through several episodes of intensive treatment for chemical dependency between 1983 and 1996. The Veteran has a history of physical and sexual abuse as a child. He has been imprisoned twice; once for a drug offense, and once for a failure to appear. The Axis I diagnoses were bipolar II, depressed," and polysubstance dependence in sustained full remission (22 months) (alcohol, cocaine, history of heroin). The Axis II diagnosis was personality disorder NOS (not otherwise specified), with mixed features, schizotypal, avoidant, antisocial, narcissistic). An August 1999 statement from a VA physician, N.H., M.D., states that the Veteran has bipolar affective disorder. Dr. N.H. states that the Veteran has a history of head trauma in 1974 and 1984, and that he complains of headaches. An August 2002 report from Dr. H asserts that the Veteran has bipolar disorder, and PTSD. A September 2003 VA progress notes shows that a VA psychologist, S.A.C., PhD., notes that the Veteran's test scores have "potentially more support for PTSD diagnosis." The report notes, "Clearly has trauma issues that occurred while he was in the military (not from combat but from mistreatment/beating at hands of civilian police). In a February 2004 report, Dr. S.A.C. states that the Veteran claimed that his original trauma happened in the civilian world while he was on active duty, and that it "clearly caused a constellation" of symptoms and signs consistent with a PTSD diagnosis. In an April 2004 statement, Dr. S.A.C. states that the Veteran is receiving treatment for a recurrent mood disorder, and PTSD. Dr. S.A.C. states that the Veteran is focused on anger, resentment and depression following events in the military. Dr S.A.C. states that the Veteran "clearly is bothered by nightmares, anger and mood lability, that he traces, at least in part, to trauma he has experienced." VA progress notes dated thereafter, show ongoing treatment for psychiatric and substance abuse symptoms, with continued use of methadone, and diagnoses that include opiate and nicotine dependence, PTSD, bipolar disorder, and depression. A report, dated in November 2007, indicates that the Veteran was to be started on methadone, and that his assessments were substance abuse, including heroin and prescription drugs, and bipolar disorder. A VA progress note, dated in February 2009, notes a history of depression beginning in 1992, first treated in 1999. The Board will first discuss several preliminary matters. First, there is no evidence that the Veteran had combat service, nor does he allege such. Rather, he claims that his in-service stressor was being assaulted in service, not being in combat. Thus, the Board concludes that 38 U.S.C.A. § 1154(b) is not for application. Second, the Board finds that the Veteran is not a credible historian. The Veteran's service records show that he had a number of disciplinary actions, to include a court martial, for offenses that included being AWOL (absent without leave) for about ten days, and assaulting another soldier. A report from the Department of Justice indicates that in March 1974, the Veteran was charged with destruction of private property, resisting arrest, and disorderly conduct. A memorandum, dated in February 1975, states that he was to be separated from service for hostilities toward the Army, continual misconduct, unsatisfactory job performance, and being AWOL for ten days in July. This is evidence of bad character. As for the post-service evidence, it includes VA reports which show extensive treatment for substance abuse since the mid-1980s, to include cocaine and heroin. It shows that the Veteran reported that he had been injured in several gang fights, and that he had been incarcerated several times. See e.g., VA reports, dated in February 1998, September 1999, December 2007. This is evidence of bad character. VA reports also show that he has a history of abusive and threatening behavior, to include a fistfight with another patient, a dispute over his medication, and threats in letters noted to contain "distorted information" and a "false accusation." See e.g., VA reports, dated in September 1998, September 2007, November and December of 2008; August 2010. This is evidence of bad character, self-interest, and desire for gain. The Veteran claims that he has PTSD due to mistreatment by police, to include being restrained and beaten, and sustaining head trauma. However, service treatment records, dated in March 1974, show that he was delirious, and "oblivious to all environmental stimuli." This is evidence of impaired judgment and cognitive abilities during the alleged stressor. Furthermore, service treatment reports do not show that he sustained head trauma, nor do they indicate that he was beaten before, during, or after his arrest. They show that he was bleeding all over his body, and that he reported that he had been hit by a car. Upon separation from service, he denied a history of a head injury, and he stated that he had been hospitalized after he "fell through glass." Finally, the Veteran originally filed a claim for pension in August 1995, based, in part, on a head injury sustained in 1985. He first filed a claim for PTSD in November 1998, under 38 U.S.C.A. § 1151, claiming that he was assaulted by another patient during VA treatment that same year. The earliest assertion that he sustained a beating or head trauma during service is found in an August 1999 VA report. This is evidence of significant inconsistency. The Board therefore finds that he is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness). Third, the Board finds that the preponderance of the evidence shows that the Veteran's use of mescaline (in some instances, he reported it was LSD) was an act involving conscious wrongdoing or known prohibited action, and that it was the proximate cause of his charges of destruction of private property, resisting arrest, and disorderly conduct, as well as his subsequent injuries, arrest, and medical treatment, to include being restrained. His use of mescaline/LSD clearly involved use of an illegal drug. See Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (Oct. 27, 1970) (codified at 21 U.S.C. § 801 et seq.). He was subsequently charged with three offenses, and his actions were the product of deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, the probable consequences. The Board notes that a line of duty determination is not of record. In summary, the evidence overwhelmingly establishes that the illegal use of mescaline on the part of the Veteran was the proximate cause of the psychosis, the bleeding noted all over his body, and his arrest, to include the need to restrain him prior to, and during, medical treatment. The Board therefore concludes that the Veteran's use of mescaline in March 1974, and the subsequently resulting injuries, arrest, and medical treatment, were the result of his own willful misconduct. 38 C.F.R. §§ 3.1, 3.301. Accordingly, service connection may not be granted for injuries caused by this event. Id. The Board finds that the claim must be denied. To the extent that he has presented a claim for an acquired psychiatric disorder other than PTSD, the Veteran was treated for "toxic psychosis - mescaline" for about five days in March 1974. It appears that he was arrested, and that he was restrained both during his arrest, and during at least part of his subsequent medical treatment. However, the Board has determined that service connection may not be granted for the Veteran's use of mescaline in March 1974, and the proximately-caused injuries, arrest, and medical treatment, because they were the result of his own willful misconduct. Id. The only other relevant evidence of psychiatric treatment shows that he complained of poor sleep and feeling tired and "nervous" in January 1974. There was no diagnosis. This appears to have been an acute condition, as evidenced by the lack of subsequent treatment or findings during his remaining period of service (a period of about one year and two months), and the fact that his psychiatric system was clinically evaluated as normal upon separation from service. Therefore, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(a), (b). The Veteran received a great deal of treatment for substance abuse following service, however, the earliest medical evidence to show the existence of an acquired psychiatric disorder is dated in 1998, which is about 23 years following separation from service. In this regard, to the extent that the Veteran has repeatedly been diagnosed with acquired psychiatric disorders other than a psychosis, these are not disorders listed at 38 C.F.R. § 3.309(a), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no competent and probative evidence to show that an acquired psychiatric disorder is related to the Veteran's service. Finally, there is no evidence to show that a psychosis was manifest to a compensable degree within one year of the Veteran's separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the claim for PTSD, the Veteran was treated for "toxic psychosis - mescaline" for about five days in March 1974. It appears that he sustained bleeding over his body, and that he was arrested, and restrained both during his arrest, and during at least part of his subsequent medical treatment. However, the Board has determined that service connection may not be granted for the Veteran's use of mescaline in March 1974, and the proximately-caused injuries, arrest, and medical treatment, because they were the result of his own willful misconduct. 38 C.F.R. §§ 3.1, 3.301. There is no other claimed stressor during service. The Board further notes that the Veteran is shown to have a complex medical history that includes pre-service physical and sexual abuse, as well as a post-service history that include several assaults, with head trauma in 1984. Compensation may not be paid for disabilities related to these incidents. See 38 U.S.C.A. § 1110. In any event, the only claimed stressor has been determined to have involved willful misconduct. Absent a qualified stressor, there is no basis for a grant of the claim. 38 C.F.R. § 3.304(f). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and that the claim must be denied. In reaching this decision, the Board has considered the statements of Dr. S.A.C., which indicate that he determined that the Veteran may have PTSD related to his service. However, the Board has determined that the only claimed stressor involved willful misconduct (the use of mescaline), and that the Veteran's subsequent arrest and medical treatment were proximately caused by this willful misconduct. Therefore service connection may not be granted based on this stressor. 38 C.F.R. §§ 3.1, 3.301. There is no other claimed stressor during service. Absent a qualified stressor, there is no basis for a grant of the claim. 38 C.F.R. § 3.304(f). Furthermore, to the extent that the Veteran has claimed that he was beaten by police, the Board has determined that he is not a credible historian, and that the evidence is insufficient to show that he was assaulted during service. Therefore, this evidence is insufficient to warrant further development, or a grant of the claim. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). The post-service medical records show that the Veteran has been diagnosed with several acquired psychiatric disorders, to include PTSD. 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 in this case, whether the Veteran has an acquired psychiatric disorder, to include PTSD, due to his service, which ended in 1975, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board has determined that the Veteran is not a credible historian, that the only claimed stressor involved willful misconduct (the use of mescaline), and that the Veteran's subsequent injuries, arrest, and medical treatment were proximately caused by this willful misconduct. Accordingly, the Board has determined that the service and post-service medical evidence outweighs the Veteran's contentions to the effect that he has the claimed condition that is related to his service. The Board therefore finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claim, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Duties to Notify and Assist 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 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in May 2004, and in January and April of 2013. 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); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, in July 2013, after the scope of the issue was expanded to include acquired psychiatric diagnoses other than PTSD, the RO issued another supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (holding that VA cured any failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records. With regard to records from the Social Security Administration (SSA), in March 2013, the Appeals Management Center (AMC) issued a memorandum in which it detailed the attempts that had been made to obtain the Veteran's SSA records. The AMC concluded that all attempts to obtain additional service treatment reports had been correctly followed, and that all efforts to obtain the needed information have been exhausted, that further attempts will be futile, and that the record is not available. That same month, the AMC notified that Veteran and his representative that any further attempts to obtain additional SSA would be futile. See 38 C.F.R. § 3.159(e) (2013). The Veteran has not been afforded an examination, and an etiological opinion has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. With regard to the third McLendon criterion, although there is a great deal of evidence of treatment for substance abuse beginning in 1985, the earliest medical evidence of an acquired psychiatric disorder is dated no earlier than 1998. The Board has determined that the Veteran is not a credible historian, that the only claimed stressor involved willful misconduct (the use of mescaline), and that the Veteran's subsequent injuries, arrest, and medical treatment were proximately caused by this willful misconduct. Therefore, an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In November 2012, the Board remanded this claim. The Board directed that the Veteran should be advised to contact his VA treating psychologist Dr. C, who authored the September 2003 VA Psychology Progress Note, and ask him to specify which "trauma" he was referencing in his opinion. The Veteran was also to be sent a VCAA notice letter compliant with 38 C.F.R. § 3.304(f)(5), as required for PTSD claims based on in-service personal assault, and to be requested to sign an appropriate release in order to obtain all outstanding records from the Ratcliffe Police Department in Ratcliffe, Kentucky. In January 2013, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's remand instructions. However, there is no record of a response. The Board also directed that an attempt be made to obtain the Veteran's SSA records, however, in March 2013, the AMC determined that these records were not available. The Board further directed that an attempt be made to obtain all VA clinical records pertaining to the Veteran from the West Los Angeles VA Medical Center from September 2009 to the present. This has been done. Finally, the Board directed that an attempt be made to obtain a complete copy of the Veteran's service personnel records. This has been done. Given the foregoing, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New service department records having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression is reopened for reconsideration, and to this extent only, the appeal is granted. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs