Citation Nr: 1336378 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-33 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, depression, schizoaffective disorder, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from August 1976 to March 1984, with unauthorized absences from October 28, 1977 to April 30, 1978 and from May 3, 1978 to January 9, 1984. This matter came to the Board of Veterans' Appeals (Board) from a January 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in June 2010, October 2011, and December 2012 for further development. A review of the record shows that the RO has complied with all remand instructions by obtaining available service treatment records, asking the Veteran to identify additional treatment, obtaining Social Security Administration (SSA) records, providing a VA examination, attempting to verify the Veteran's main stressor and providing supplemental statements of the case. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT An acquired psychiatric disability did not have onset during the Veteran's active duty service, was not aggravated during active service, and is not otherwise related to such service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. §§ 105, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in June 2007. The RO provided the appellant with additional notice in September 2008 and June 2010, subsequent to the initial adjudication. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. While the September 2008 and June 2010 notices were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in April 2009, April 2011, July 2012 and June 2013 supplemental statements of the case, following the provision of notice in September 2008 and June 2010. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained available service treatment records, obtained private treatment records, obtained Social Security Administration (SSA) records, reviewed Virtual VA and VBMS files, assisted the Veteran in obtaining evidence, and afforded the Veteran a VA examination in December 2011. Several attempts have been made to locate service treatment records from the first period of service, but to no avail. A PIES request for records was made in May 2007, and records provided from this request include a March 1984 personnel record, which shows that the Veteran's service record was forwarded "WITHOUT HEALTH AND DENTAL RECORDS. REASON: UNABLE TO LOCATE RECORDS DUE TO LENGTHY PERIODS OF UNAUTHORIZED ABSENCE." A specific PIES request was made for medical/physical evaluation board records in October 2007. Both requests yielded treatment records other than for the initial period of service. In statements received from the Veteran and his representative in June 2013, both have responded that there was no additional information or evidence to submit, and requested that the case be returned to the Board for appellate consideration. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations The issue before the Board involves a claim of entitlement to service connection for an acquired psychiatric disability. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153. To be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). Requirements as to line of duty are not met if at the time the injury was suffered, the Veteran was avoiding duty by desertion, or was absent without leave (AWOL) which materially interfered with the performance of military duty. 38 C.F.R. § 3.1(m)(1). Analysis Initially, the Board notes that records prior to service and service treatment records from the first period of service (August 1976 to October 27, 1977) are not of record. As a result, the entrance examination is not of record. A March 1984 service personnel record shows that the United States Navy was unable to locate the Veteran's health and dental records due to his lengthy periods of unauthorized absence. Personnel records show unauthorized absences (UA) from October 28, 1977 to April 30, 1978 and from May 3, 1978 to January 9, 1984. From his second period of service, January 1984 to March 1984 service treatment records show hospitalization for psychiatric symptoms. As noted in the introduction, the Veteran was AWOL from May 3, 1978 to January 9, 1984, a period of almost 6 years. Upon his return to military control, a January 19, 1984 treatment record shows that the Veteran was admitted to psychiatry for the first time on January 13, 1984 because of his decision to stop eating after being in confinement (due to a six year UA). After five days of hospitalization he returned to duty to face pending UA charges but reported to have "acting out behavior" when turned over to the brig for a pre-trial confinement. The second time he was admitted because of the "inability to cope brig confinement and suicidal threat." The impression was mixed personality ... with dependent and schizoid features. Rule out Manipulative Behavior. A February 1984 Medical Board Report Cover Sheet shows that when the Veteran was admitted in January 18, 1984, the primary diagnosis was atypical psychosis, and the secondary diagnosis was dysthymic disorder. It was noted that the Veteran was to be discharged from service for a "disability which existed prior to enlistment." Attached was a report of the Medical Board that noted that the Veteran experienced symptoms of severe anxiety, nervousness and hallucinatory periods at around 12 years of age. A March 1984 service treatment record shows that he was discharged to return home. He was bright, cheerful, almost euphoric mood and effect; and planned to seek post service psychiatric treatment at a mental health clinic at home. The Medical Board's report of psychiatric symptoms as a preteen and outstanding service treatment records from the first period of service prompted the Board to remand the claim in October 2011, in part, for a medical opinion regarding whether a preexisting condition was aggravated by service or is due to the natural progression of the disease. The Veteran was afforded a VA examination in December 2011. After interviewing and examining the Veteran, the examiner diagnosed schizo-affective disorder, bipolar type and polysubstance abuse/dependence in long-term remission. He stated that the "Veteran relates a highly traumatic incident while in active service that he feels is the cause of all his psychiatric problems. History as noted in the records clearly suggests otherwise, though an incident of the nature he described, if it occurred, could have contributed to his instability. However, it is not possible to determine how much might be ascribed to the incident versus the disorder's natural progression." In a November 2012 statement, the Veteran's representative argued that the VA examination is inadequate in its discussion of whether there is clear and unmistakable evidence of a preexisting disability and whether there is clear and unmistakable error of aggravation. He further asserted that no rationale was provided. Because the presumption is not rebutted (as will be discussed below), the Board finds that the adequacy of the examination is irrelevant. Evidence from the first period of service has not been located. In a statement received in September 2011, the representative asserted that since entrance examination could not be located, it must be presumed that the Veteran was sound upon entry. The Board finds that with the unavailability of treatment records from prior to the first period of service, the presumption of soundness is not rebutted. The Board acknowledges a February 1983 service treatment record reflecting history provided by the Veteran of having symptoms since he was 12 years old. This history alone is not clear and unmistakable evidence that an acquired psychiatric disability existed prior to service. Thus, a discussion of whether there is clear and unmistakable evidence of whether the acquired psychiatric disability preexisted service and whether it was aggravated by service is moot. Nevertheless, it must still be determined whether a current disability had onset during a "good" period of service, as opposed to having onset during the Veteran's multi year period of being AWOL. The Veteran asserts that in-service stressors led to his disability. He has described various stressors that could not be verified. In a statement received in October 2008, he stated that while aboard the USS Franklin D. Roosevelt in February 1977, he witnessed a death in which a seaman was hit by a tanker. Afterwards, he said he experienced hallucinations and confusion, and he reports that due to the symptoms he did not return to the military after attending a funeral in 1977. In a statement received in February 2009, he reported that in the early spring or late winter of 1977 in Italy or Spain, the USS Franklin D. Roosevelt was hit by a huge ship that resulted in a hole ripped on the starboard side. The crew spent a month in dry dock due to repairs. The Veteran stated, "It scared the death out of me." In October 2008 and February 2009, the Veteran was advised to provide additional information regarding his stressors. To date, no such information has been provided. Instead, he described another stressor. In a statement received in June 2010, he mentioned a friend who was beaten to death and the Veteran assumed that he would be next. Attached were copies of pictures from a yearbook for Company 414's graduation class of November 1976. In a statement received in August 2011, the Veteran stated that in 1976 at basic training, he and some others took turns hitting a fellow recruit (named Charles) until he stopped screaming. The Veteran stated that he is haunted not knowing if Charles was killed. He stated that he was happy before that night and had enjoyed the Navy until then. He reports that he has nightmares because of this incident. The Board notes that the aforementioned stressors could not be verified. In January 2013, a request was submitted to Defense Personnel Records Information Retrieval System (DPRIS) regarding the recruit incident aboard the USS Franklin D. Roosevelt. In January 2013, the Veteran's wife clarified that the recruit beating occurred in recruit training and not aboard the USS Franklin D. Roosevelt sometime in August 1976 to November 1976. Nevertheless, a February 2013 DPRIS response provides that the 1976 command history submitted by the USS Franklin D. Roosevelt, 1957-1977 ship history and deck logs (for August and September 1977) show that the "incident described by the veteran is not recorded." It was noted that in order to conduct additional research, "the veteran must provide the full name of the casualty." In response to the clarification submitted by the Veteran's spouse, a February 2013 request was submitted to the JSRRC regarding the recruit beating incident at boot camp. A March 2013 JSRRC search shows that 1976 command histories submitted by the Recruit Training Command (RTC) and by the Naval Training Center (NTC) in Orlando, Florida show that the "incident listed by the veteran is not recorded." A May 2013 Formal Finding memorandum shows the procedures that were followed to try to verify the Veteran's main stressor. In a statement received in June 2013, the Veteran's wife reiterated that the stressor regarding the hitting of a recruit occurred during recruit training. In support of the claim she noted that pages had been submitted of all the recruits in the Veteran's company. The Board acknowledges that the yearbook shows two recruits named Charles R. and Charley H. The Board notes, however, that command histories did not confirm the death of a recruit named Charles. Also, when asked to provide a full name of the recruit, the Veteran and his representative failed to respond with the specific information. Overall, no additional development is necessary as no new information has been provided regarding the stressors. Since the Veteran asserts he has PTSD, the Board notes the following. The applicable regulation 38 C.F.R. 3.304 eliminates the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted confirms that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Although the Veteran had been scared to death due to a ship collision in 1977 and mentioned that he was scared that he would have been the next recruit to be beaten, this is not the type of fear recognized by the regulation. This is not fear of hostile or military activity. As noted by the December 2011 VA examination, the Veteran believes that his stressor led to his acquired psychiatric disability. The examiner stated "though an incident of the nature he described, if it occurred, could have contributed to his instability." (Emphasis added). The Board notes that none of the Veteran's stressors have been verified. Even assuming for the sake of argument that they were, the use of the term "could have" provides a speculative aspect to the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board acknowledges the Veteran's assertions that his acquired psychiatric disability is related to his reported in-service stressors. While the Veteran is competent to testify as to his disability, he is not competent to render a medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no credible evidence of psychiatric problems during the first period of service. In a statement received in September 2011, the Veteran's representative asserted that the Veteran's disability started after boot camp, school and assignment on a ship. He noted that the Veteran had at least two years in service before having any psychiatric problems, which the Board notes would date the onset to 1978. Further, the Veteran is certainly competent to testify as to his symptoms. Given his assertions and testimony, and given the evidence of record, it appears to the Board that the Veteran's psychiatric disability did not develop during the first period of service, but rather during AWOL. The immediate hospitalization upon his return to service supports such a finding. The Board notes that it is precluded from granting service connection for a disability that arises during a period of AWOL. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.1 (m)(1). Additionally, in a statement received in October 2008, he stated that he feared for his own life to explain why he was AWOL for five years. However, a January 1984 service treatment shows otherwise. He stated that when he went on leave in August 1977 to attend a family funeral, he decided not to report back to service so that he could take care of his family. He stated that his wife took one month to get over her bereavement. The Board notes that there was no indication that the Veteran had not returned because he feared for his safety. This contradiction cast doubt on the credibility of the Veteran's statements regarding this claim. An August 1994 treatment record from Moccasin Bend Mental Health Institute shows that the only in-service psychiatric treatment he reported was a nervous breakdown when he was around 29 years old, which would date the onset to 1984. The Board notes that there was no mention of any psychiatric disability prior to that period of time such as his initial period of service. Although an August 1994 private treatment record from Hiwassee Mental Health Center shows the Veteran's claim of first receiving psychiatric treatment "while he was enlisted in the USN (76-84)". However, the Veteran's specific mention of spending two months at a military psychiatric unit indicates to the Board that the Veteran was not referring to his original period of service, but rather to his subsequent service after going AWOL. Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). While not determinative of itself, post service treatment records show he was first seen in August 1994, which is 10 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, depression, schizoaffective disorder, and PTSD, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs