Citation Nr: 1337586 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 06-26 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from April to August of 1960 and was subsequently in the United States Army Reserve for a period including May 1971 through May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1962 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The case was remanded in January 2009, January 2011, and November 2012. In prior remands, the claim for service connection for an acquired psychiatric disorder was characterized as an issue of whether new and material evidence had been received to reopen a claim for service connection for an acquired psychiatric disorder. However, a claim for service connection for a "nervous condition" was denied in a February 1962 rating decision and, since the issuance of that decision, VA has received numerous service department documents, including numerous service personnel records concurrent with the Veteran's period of active duty service in 1960. These records include his application for enlistment and his record of discharge/release from active duty (on the basis of "unsuitability"). These records were not contained in the claims file at the time of the February 1962 rating decision. Pursuant to 38 C.F.R. § 3.156(c), these service department records are "relevant," and, as noted in the Board's November 2012 remand, VA must reconsider the claim on its merits. The claim has accordingly been recharacterized. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. As noted in the Board's November 2012 remand, in August 2012 the Veteran applied for an increased rating for bilateral hearing loss. This claim is again referred to the Agency of Original Jurisdiction for appropriate action. FINDING OF FACT The Veteran did not have an acquired psychiatric disorder at the time of his January 1962 claim for benefits and has not had one at any time since. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 101(22), (24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 4.9 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a July 2004 letter. While this letter was issued after the appealed February 1962 rating decision, the claim was subsequently readjudicated by the agency of original jurisdiction, most recently in a January 2013 Supplemental Statement of the Case. The July 2004 letter also pre-dated the Dingess/Hartman decision and did not address disability evaluation and effective date considerations, but this omission did not prejudice the Veteran; as the service connection claim is being denied, there is no possibility of a disability evaluation or an effective date for that evaluation being assigned. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has made all necessary efforts to obtain records of post-service treatment, and records obtained pursuant to these efforts have been associated with the claims file. VA has gone to considerable lengths in this case to obtain all of the Veteran's U.S. Army Reserve records. Entities contacted by the RO or the VA Appeals Management Center (AMC) include the National Personnel Record Center (NPRC), the Department of the Army, the U.S. Army Reserve Command, the Kansas Adjutant General's office, and the Surgeon General's Office (Department of the Army). Pursuant to the January 2011 remand instructions, additional service records were received pursuant to inquiries to the service department entities. Two separate inquiries, from February and April of 2011, were made to the U.S. Army Human Resources Command (Army Reserve), but no response was ever received. Following a negative response from the NPRC in March 2011, the AMC issued a Formal Finding of Unavailability as to Surgeon General's Office records in April 2011. The Veteran was also requested to provide additional service records, but an April 2011 Report of Contact reflects that the Veteran did not have any service treatment records in his possession. The Board notes that the January 2011 remand contained an instruction to contact the Adjutant General of the State (here, Kansas). The RO, in fact, had previously made such contact in March 2005, and was informed in February 2006 that Army Reserve records are in St. Louis, Missouri. The Board separately notes that, in a February 2010 letter from the NPRC in St. Louis, the AMC was notified that requests must be initiated through the Personnel Information Exchange System (PIES). Subsequent to the Board's remand, it does not appear that direct contact was again made with the Kansas Adjutant General. However, the AMC did obtain numerous additional service department documents in October 2011, with the PIES identification number indicated on that documentation. Given the noted February 2006 and February 2010 correspondences, the Board finds that the AMC has, for all intents and purposes, accomplished the evidentiary development that would have been initiated had the Kansas Adjutant General again been contacted. Thus, the Board concludes that while the AMC did not absolutely or strictly comply with the January 2011 remand, its compliance was entirely sufficient for the purposes of the pending claim, particularly in light of the previous request to the Kansas Adjutant General. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) ("substantial compliance" rather than "strict compliance" is required under Stegall v. West, 11 Vet. App. 268 (1998)). The Board also notes that the January 2011 remand included an instruction to contact the Veteran in furtherance of obtaining information and a release form for records of his Workman's Compensation claim(s). This matter was fully addressed in a February 2011 letter sent by the AMC to the Veteran, but he never responded with either additional information or a signed release form, despite being reissued that letter in combination with a separate April 2011 letter. Accordingly, the AMC was precluded from pursuing further action to obtain these records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist a claimant is not always a "one-way street," and a claimant seeking help cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining putative evidence). Pursuant to the Board's November 2012 remand instructions, the Veteran was afforded a VA mental health examination in November 2012. The examination and associated report were adequate because, along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination report was based on examination of the Veteran by a clinical psychologist with appropriate expertise who reviewed and discussed the evidence contained in the claims file. 38 C.F.R. § 3.159(c)(4) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Under these circumstances, the Board finds that there has been substantial compliance with its remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries, 22 Vet. App. at 104-106; Stegall v. West, 11 Vet. App. 268 (1998). Finally, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the September 2007 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed psychiatric disorder, specifically regarding his symptoms and treatment, and how he believed his condition was related to service. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The disability at issue in this case 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). Service connection may be also granted only for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or injury incurred or aggravated while performing inactive duty training (INACDUTRA). See 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen, 10 Vet. App. 183. 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. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Where, as here, the claimant's service medical records appear to have been at least partially destroyed or lost, the Board has a heightened duty to explain its findings and conclusions and to consider the benefit of the doubt. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In this case, as reflected in his original January 1962 claim for service connection, the Veteran contends that he has an acquired psychiatric disorder, originally described as a nervous condition, related to his period of active service. As reflected in his testimony during his September 2007 Board hearing, the Veteran also contends that, during his time in the Reserves, his treatment by superior officers caused him anxiety and stress. Service treatment records reflect that in July 1960 the Veteran arrived in the dispensary by ambulance in a state of hyperventilation and crying, indicating that he was very upset because he had to be away from his wife, although she was not legally his wife yet. He stated that she was going through a divorce and the previous week had attempted suicide twice, and that he was constantly worried about her and had not been able to do his work. He reported having various episodes of depression during his three months in service. The initial diagnosis was emotional instability reaction. A subsequent July 1960 report of a medical board reflects that the Veteran expressed poor motivation for continued military service and stated that he would do anything to be discharged, and it was noted that throughout the interview he was fidgety and his responses to questions indicated considerable impulsivity and immaturity. The Veteran reported that, leading up to his admission, he had been thinking about his wife and experiencing feelings of frustration about his inability to adjust to his ship and get along with members of the crew. It was noted that the Veteran was observed to have had longstanding evidence of pathological emotional immaturity that precluded his rendering any useful service. The medical board determined that the Veteran suffered from an inherit, pre-existing personality disorder that rendered him unsuitable for any further service, but that he did not have a disability that was the result of an incident of service or which was aggravated thereby. Following the Veteran's period of service from April to August of 1960, he served in the United States Army Reserve for a period including May 1971 through May 1995. A November 1990 service examination reflects a normal psychiatric evaluation. A January 1995 private medical evaluation report reflects that the Veteran denied all psychiatric symptoms including depression and nervousness. Service records further reflect that, in September 1994, a Medical Review for Administrative Discharge was ordered. A related November 1994 memorandum indicates that the Veteran had the medical conditions of hypertension, diabetes mellitus, degenerative joint disease of the cervical spine, and anxiety. An August 1995 memorandum reflects that the Veteran was released from service due to being medically disqualified for retention. An August 1999 private treatment note reflects that the Veteran had "some chronic anxiety," although there were no psychiatric diagnoses at that time. A December 2009 VA private care physician note reflects assessments of multiple disorders including "Anxiety/Anger," and it was noted that the Veteran had previously been on valium but had stopped on his own, and still became very upset when talking about his wife who had died two years before. During his September 2007 Board hearing, the Veteran testified that he received mental health treatment from his private doctor around the late 1980s, and was on medication for about one year. He testified that during his time in the Reserves he was told by various officials that he would never accomplish what they were accomplishing and never move up in his position, which caused him a lot of anxiety and stress. September 2012 VA treatment records contain a notation of a past medical history of anxiety and assessment included anxiety disorder. It was noted that the Veteran was prescribed Ativan as needed. The report of a November 2012 VA examination reflects that, while the examiner found that the Veteran had symptoms of difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting, he found that the Veteran did not have and had not ever had a diagnosed mental disorder. The examiner explained that the Veteran did not meet the criteria for an anxiety disorder, and that his symptoms were of an anger-related nature rather than anxiety-related. The examiner stated that the Veteran was irritable and frustrated with others, felt wronged by others easily and became frustrated easily when he perceived injustice, and that this was a style of thinking that led to interpersonal conflict but was not currently a diagnosable condition. The examiner explained that anger was separate and different from anxiety, and that the Veteran's style of thinking was also not significant enough to be considered a personality disorder. The examiner further explained that the Veteran's specific recollections of panic attacks, such as when witnessing a helicopter crash or being in a car accident, were from times when the autonomic nervous system would cause his heart to beat faster and when he would reasonably have symptoms similar to panic, but that panic attacks did not happen spontaneously and without reason. The examiner noted that the Veteran did not have general worry; although he was easily stressed and irritated by many things, he did not worry about them. The examiner stated that the Veteran did not have any records of being seen by a mental health professional, and had rather been prescribed medication from primary care doctors, but without a thorough examination. The examiner noted a memorandum from November 1994 referencing anxiety noted from another internal memorandum dated in November 1993, which the examiner was unable to find. The examiner stated that without actual treatment records it was very difficult to make any significant judgments about that memorandum. However, according to the examiner, it appeared, by the Veteran's self-report, that he was under significant stress due to discrimination and a hostile workplace and had reactions that were not above what would be considered normal for those situations. The examiner further stated that the Veteran appeared to minimize his social functionality, as he was raising a child, taking care of a sister-in-law, and having conversations with many people, though denying friends, and noted that by the Veteran's own account he was wholly functional when working. Considering the pertinent evidence in light of the governing legal authority, the Veteran's service connection claim must be denied. A preponderance of the evidence demonstrates that the Veteran does not have, and has not had at any time since his January 1962 claim for service connection, any acquired psychiatric disorder that can be service-connected. The most probative evidence of whether any such acquired psychiatric disorder exists is the November 2012 VA examiner's report and opinion that, while the Veteran had symptoms of difficulty with relationships and stressful circumstances, he did not have and had never had a diagnosed mental disorder. The Board finds the November 2012 VA examination report to be persuasive evidence that the Veteran does not have an acquired psychiatric disorder and has not had any such disorder from the time of his January 1962 claim for service connection to the present. The examiner was a clinical psychologist with appropriate expertise, thoroughly reviewed and discussed the evidence contained in the claims file, and thoroughly examined the Veteran, including interviewing and taking an extensive history from the Veteran regarding his military experiences and current and past mental health symptoms. Furthermore, the examiner supported his opinions with clear and persuasive explanations. The Board finds that the November 2012 VA examination report outweighs any evidence reflecting the existence of an anxiety disorder or any other acquired psychiatric disorder since the Veteran's January 1962 claim for service connection. This includes the November 1994 Medical Review for Administrative Discharge memorandum indicating the medical condition of anxiety, the August 1999 private treatment note reflecting "some chronic anxiety," the December 2009 VA physician note reflecting an assessment of "Anxiety/Anger" and that the Veteran had previously been on valium, and September 2012 VA treatment records reflecting a notation of anxiety disorder and a prescription for Ativan. While reflecting assessments of anxiety and prescribed treatment, these records contain no mental health assessment of the Veteran nearly as thorough as the November 2012 VA examination, no review of the entire record available, and little to no explanation of any psychiatric diagnosis in terms of the applicable diagnostic criteria. Moreover, such evidence was considered and discussed by the November 2012 VA examiner, who nonetheless determined that, despite the Veteran's past assessments and medication, he never met the diagnostic criteria for a psychiatric disorder. As explained by the VA examiner, the Veteran had been prescribed medication from primary care doctors, but without a thorough examination, and he did not have any records of being seen by a mental health professional. The VA examiner also explained that while the Veteran did have difficulty with relationships and stressful circumstances, anger, irritability, and frustration, these did not constitute, and were not related to, any psychiatric disorder, and that his reported episodes of panic were simply normal responses to situations, and did not happen spontaneously or without reason. The VA examiner noted the service memorandum from November 1994 referencing anxiety noted from another internal memorandum dated in November 1993, which the examiner was unable to find, and stated that without actual treatment records it was very difficult to make any significant judgments about that memorandum. However, the examiner also noted that, despite the absence of these records, it appeared by the Veteran's self-report that he was under significant stress at those times due to discrimination and a hostile workplace; based on this history, the examiner determined that the Veteran had reactions that were not above what would be considered normal for those situations. This given history of the Veteran, on which the examiner based his assessment that the Veteran's reactions were not indicative of a psychiatric disorder, is consistent with the Veteran's testimony during his September 2007 Board hearing that, during his time in the Reserves, his anxiety and stress were caused by being told by various officials that he would never move up in his position. Thus, the Board finds that the VA examiner made a reasonably informed determination despite the absence of additional medical records leading to the November 1994 assessment of anxiety. In short, the Board finds the November 2012 VA examiner's opinions and explanations to be highly persuasive, consistent with the evidence of record, and more probative than any conflicting evidence. The Board notes that during the Veteran's period of active service in July 1960, while the initial assessment was emotional instability reaction, the medical board determined that he suffered from an inherit, pre-existing personality disorder that rendered his unsuitable for any further service, but that he did not have a disability that was the result of an incident of service or which was aggravated thereby. Personality disorders are not diseases or injuries within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. Nevertheless, service connection can be warranted where such a disorder is subject to a superimposed disease or injury during military service that results in increased disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). However, the November 2012 examiner opined that the Veteran's reported symptoms were not significant enough to be considered a personality disorder; for reasons given above, the Board finds the examiner's opinions to be persuasive. Also, the VA examiner's is the only post-service assessment of whether there exists any personality disorder, and the VA examiner had the benefit of a thorough examination of the Veteran and full review of the record, including service treatment records. Thus, the Board finds that the probative evidence demonstrates that no superimposed disease or injury during military service resulted in increased disability warranting service connection in this case. The Board also notes that the Veteran is competent to report matters within his own personal knowledge. See Layno, 6 Vet. App. at 469. Also, lay evidence may be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins). However, in this case, the determination of whether the Veteran has a psychiatric disorder according to the relevant diagnostic criteria is one that is medical in nature, and requires medical expertise to make. Therefore, the Veteran is not competent to diagnose an acquired psychiatric disorder. Moreover, even if the Veteran were in some way competent to make any such determination, the Board would find such determination to be greatly outweighed by the expert opinion of the November 2012 VA examining clinical psychologist. Thus, while the Board recognizes its heightened duty to consider the benefit of the doubt, the weight of the evidence reflects that the Veteran did not have an acquired psychiatric disorder at the time of his January 1962 claim for benefits and has not had one at any time since. Therefore, there can be no valid service connection claim for such disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, service connection for an acquired psychiatric disorder must be denied. 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); Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs