Citation Nr: 1335949 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 03-01 288 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant; K. M-C. ATTORNEY FOR THE BOARD L. J. Vecchiollo INTRODUCTION The Veteran served on active duty from December 1971 to December 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's claim for service connection for a psychiatric disorder. A July 2005 rating decision denied service connection for depression as secondary to tinnitus. In December 2005, a videoconference hearing before a Veterans Law Judge was held at the RO. A transcript of that hearing is of record. This appeal was previously before the Board and the Board remanded the claim in February 2006, September 2009, and August 2011 for additional development. In July 2011, the Board notified the Veteran that the Veterans Law Judge (VLJ) who conducted the December 2005 hearing is no longer employed by the Board. The Board offered the Veteran the opportunity to testify at another hearing, and requested that he elect whether to have another hearing. In correspondence received during July 2011, the Veteran requested that he be scheduled for a Travel Board hearing. In correspondence received by the RO in July 2012, the Veteran's representative indicated that the Veteran requested a videoconference hearing instead. Such a hearing was scheduled for October 9, 2012; however, in correspondence received by the RO in October 2012, the Veteran indicated that he wished to cancel his videoconference hearing. Accordingly, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2013). The Board again remanded the claim in December 2012 for further development and consideration. The case has been returned to the Board for further appellate consideration. The Board notes that the Veteran is currently represented by the Disabled American Veterans (DAV), and VA Form 21-22 appointing such service organization as the Veteran's representative has been associated with the claims file. However, in correspondence received by the RO in October 2012, the Veteran indicated that he did "not need DAV to assist [with] claim." It was unclear whether the Veteran intended to revoke his appointment of the Disabled American Veterans as his representative. On remand, a December 2012 letter was sent to the Veteran requesting clarification of this matter. As no response was received, it is assumed that the Veteran desires to retain the DAV as his representative. The Veteran's request to reopen his claim of service connection for a low back disability been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. An acquired psychiatric disorder was not shown during service or for many years thereafter. 2. Because the Veteran cancelled or failed to report to multiple VA examinations, there is insufficient competent and probative evidence to establish a relationship between current psychiatric disorders and service or service connected disability. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 C.F.R. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 3.665 (2013); Wood v. Derwinski, 1 Vet. App. 190 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). In this case, appropriate VCAA notice was provided in multiple letters, including in June 2003, October 2003, and March 2006. Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, Social Security Administration (SSA) records, private treatment records, VA treatment records, VA examination reports, and hearing testimony. The Board remanded this matter several times to schedule an additional examination to determine the nature of his claimed psychiatric disability and to obtain a probative opinion as to the relationship between current psychiatric disabilities and service. Pursuant to the Board's September 2009 remand, the Veteran was scheduled for a VA examination by a psychiatrist to obtain an opinion as to whether he has an acquired psychiatric disorder, to include PTSD, as a result of an event during active service or that was caused or aggravated by a service-connected disability. Such examination was scheduled in February 2011 at the VA Medical Center (VAMC) in Manchester, New Hampshire; however, documents in the claims file reveal that the Veteran reported being unable to report for such examination because he could not travel far due to a back disability. A February 2011 notice letter to the Veteran indicates that the VA examination was scheduled at the VAMC in Manchester, New Hampshire because the VAMC in Togus, Maine does not have a psychiatrist. In its latest December 2012 remand, in light of the Veteran's difficulties in travelling for the examination, the Board amended the instructions to include examination by a VA psychiatrist or a VA psychologist, to potentially assist in scheduling the examination at the VAMC in Togus or other VA facility closer than Manchester. The Veteran was scheduled for Veteran's examinations in January 2012, April 2013, and July 2013. The Veteran cancelled these examinations due to travel difficulties and transportation problems. The VAMC noted that the Veteran was given contact information for the DAV transportation office but declined this offer. The VA's duty to provide the Veteran an examination has been satisfied. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause" fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran, and relevant testimony concerning events in service, treatment history, and symptomatology was elicited. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. The Board is further satisfied that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, VA examinations were scheduled, to include attempts to schedule him at Togus. The Veteran was contacted directly, advised of the date and time, and indicated he would report. Thereafter, however, he would cancel the examination. In addition, pertinent treatment records were obtained. A search was made to find Manchester, New Hampshire mental health treatment records dating since 2006 identified by the Veteran but not of record. The Veteran was notified in July 2013 that such treatment records were unavailable, and that he should submit any such records in his possession. Treatment records from Togus VAMC dating from 2002 to October 2007 are of record. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries, supra. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. 38 C.F.R. § 3.310(a). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal as the Veteran's stressor does not involve fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41,092 (July 15, 2010). Further, with regards to his claim of entitlement to service connection for PTSD, the Board notes that when a claimant seeks service connection for PTSD based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD as due to being kicked in the head while sleeping in front of his tank by a captain during active service and that that he was constantly harassed and assaulted by a "Turrot Fag." He stated these events occurred during service in Korea in 1973. He claimed the incident involving his having been kicked in the head occurred in October 1973. He also claimed he was involved in a tank accident. He further claims he witnessed a fellow serviceman "cut in half" due to being run over by a tank. He stated, in essence, that he knew of no available witnesses to these events and knew of no other evidence to substantiate his claims. He also claims that his service-connected tinnitus either caused or aggravated his acquired psychiatric disorder. The Board also notes that the Veteran has endorsed a history of heavy alcohol consumption, in-service heroin and marijuana use, and current marijuana use. In this case, service treatment records are negative for complaint, treatment, or diagnosis of a psychiatric disorder. The records are likewise negative for treatment for a kick to the head. While the Veteran reported a history of a head injury and loss of consciousness on his entrance examination in 1971, he denied having experienced a head injury on his November 1974 separation examination. Moreover he denied experiencing depression, excessive worry, frequent trouble sleeping, and nervous trouble of any sort. The separation physical examination revealed a normal psychiatric evaluation. Service personnel records show he served in Korea as an armor crewman. An August 1972 evaluation report noted a high score for operating and maintaining communications equipment and average or low scores in all other areas. Reports show the Veteran was disciplined in December 1973 for possession of marijuana, in March 1974 for a period of absence without leave, and in May 1974 for additional periods of absence without leave. An August 1974 evaluation report noted an average score for individual combat activities and low or very low scores in all other areas. In a signed statement of disagreement from a July 1974 evaluation report the Veteran stated his belief that he felt he had not been treated as the soldier he was capable of being and that he had lost interest in the military. He requested that he be discharged for the good of the service. In a private psychological evaluation dated in October 1996, G.M.D, Ph.D., stated that the Veteran has had recurrent depression since adolescence. An examination for SSA disability benefits purposes was conducted in March 1999. The Veteran stated that he sustained back problems and hearing loss in service. He also stated that he has been experiencing depression since 1994. He reported auditory hallucinations in 1995 and 1996. He reported using cocaine, cannabis, and LSD. He also stated that he had significant problems with heroin abuse in 1974. The diagnoses were major depression, generalized anxiety disorder, and pain disorder associated with both psychological and general medical condition. Other records show the Veteran was awarded SSA disability benefits effective from October 1996 because of personality disorders. A June 2005 VA examination report noted the Veteran relayed several incidents of experiences in service of a very traumatic nature. The Veteran reported having had multiple head injuries during his lifetime, including one involving an assault while in the service. The examiner stated that it did appear that the Veteran had some symptoms related to PTSD. It was the opinion of the examiner that the Veteran did exhibit genuine symptoms of PTSD in relating some of the stressors. The diagnoses included rule out PTSD. The diagnoses also included depressive disorder secondary to multiple medical conditions. The June 2005 VA examiner also noted that the Veteran's service-connected tinnitus was one significant stressor fueling his depression, but that there were multiple other life stressors that were worsening his depression. The examiner's further statement regarding parceling out the impact of tinnitus versus other factors indicates speculation was required. The medical records contained in the claims file include various diagnoses, including adjustment disorder, depression, generalized anxiety disorder, pain disorder associated with both psychological and general medical condition, and psychosis not otherwise specified. The Veteran is noted to have failed to appear for scheduled VA examinations. The purpose of the examination was to determine whether the Veteran's acquired psychiatric disorder was related to service or caused or aggravated by a service-connected disability. Since the Veteran failed to report for VA psychiatric examinations, his claim will be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655. As an initial matter, the Board acknowledges that the Veteran is competent to describe events that occurred during military service and his symptomatology regarding his perceived psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as a lay person, he is not competent to diagnose a psychiatric disorder as such requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In addition, psychiatric disorders can have many causes, and determining the etiology of such disorders requires medical expertise to determine. Accordingly, the Veteran's lay opinion that he suffers from a psychiatric disorder including PTSD related to service or to service-connected disabilities is not a competent medical opinion. Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). Accordingly, to the extent the Veteran suffers from a personality disorder, service connection for such is not warranted. Similarly, service connection may not be established as directly related to service for a disability deemed to be the result of abuse of alcohol or drugs. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301 (2013). Due to the Veteran's lack of cooperation in scheduling examinations, there is no probative opinion linking the Veteran's psychiatric disorders to active service or to a service connected disability. The Board notes that the June 2005 VA examiner provided a somewhat favorable opinion regarding tinnitus and a psychiatric disorder. However, such opinion could not further elaborate without resort to speculation. Moreover, that examiner, as well as various clinicians in the record, attributed his psychiatric problems to various other life stressors, including his nonservice connected back pain. Accordingly, as the June 2005 opinion is speculative and includes insufficient rationale, it is entitled to no probative weight and cannot serve as a basis for establishing service connection. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). No psychiatric disorder was diagnosed in service, and he was not diagnosed with an acquired psychiatric disorder until years after service. As the Veteran has failed to cooperate in attempts to schedule an examination, first agreeing to report then cancelling the request, there is insufficient evidence to establish that his current psychiatric disorders are related to service. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood, 1 Vet. App. at 193. Further, there is also no competent evidence showing a psychosis was manifested within one year of his discharge from service. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, to include PTSD, and it must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See Gilbert v. Derwinski, supra. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs