Citation Nr: 1340473 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 04-15 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1964. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a May 2003 rating decision of the VA Regional Office (RO) and Healthcare System in Fort Harrison, Montana that denied service connection for disabilities that included PTSD, hypertension, "heart attack", a right leg condition, residuals of head injury, including headaches, and residuals of left heel contusion. In correspondence dated in October 2002, the Veteran clarified that the psychiatric condition for which service connection was being sought was major depression and should be changed from PTSD. The Virtual VA claims file has been reviewed. This case was previously remanded by the Board in April 2006, November 2008, March 2011, and May 2013. In May 2013, the Board denied the Veteran's claims for service connection for hypertension, heart disease, a right leg disability, residuals of a head injury, and residuals of a left heel contusion, but found that additional development, including a VA examination, was necessary prior to adjudication of the remaining issue on appeal, as listed above. The requested VA examination was provided in August 2013 and an additional SSOC was issued thereafter. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). The case has been returned to the Board. FINDING OF FACT An acquired psychiatric disorder to include schizoaffective disorder was not manifest in service and was not manifest within one year of separation; schizoaffective disorder is not attributable to service. CONCLUSION OF LAW An acquired psychiatric disorder to include schizoaffective disorder was not incurred in or aggravated by service, and schizoaffective disorder may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in August 2001, April 2006, and July 2006, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a 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). The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, and the Veteran's own statements in support of his claim. The Veteran was afforded VA examinations responsive to the claim for service connection. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. Additionally, although the Veteran alleged that the October 2009 did not adequately consider the Veteran's service treatment records, the August 2013 VA examination corrected this omission and considered the records in detail. The Veteran has not alleged that the August 2013 examination is inadequate to decide the claim being adjudicated herein, so the examination is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. As schizoaffective disorder is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Service treatment records show that, in September 1963, the Veteran requested to see the base psychiatrist when he was in Correctional Custody and was encouraged to do so because of his drinking problem. The Veteran told the psychiatrist he did not see drinking as a problem. Evaluation did not show distortions of perception; thinking was logical and goal-directed and his affect was appropriate. Previously, in May 1961, he complained of poor sleep and being nervous; the evaluating medical provider stated that there was strong emotional overlay regarding the Veteran's back ache. In April 1963, he got in a fight. At his March 1964 separation examination, the psychiatric evaluation was normal. Personnel records show the Veteran drank heavily, engaged in inappropriate behavior, threatened other service members and received multiple disciplinary actions. VA records from 1972 to 2011 show multiple psychiatric diagnoses, to include multiple hospitalizations for psychiatric treatment and alcohol abuse. From April 1972 to May 1972, the Veteran was hospitalized for schizophrenia. From 1972 to 1997, the Veteran was hospitalized on numerous occasions, including for schizophrenia, alcohol abuse, depressive neurosis, and major depression. The records also show he had an assessment of adjustment disorder in March 1991, anxiety in January 1996, dysthymia and mood disorder in January 2002, bipolar disorder in July 2002, and attention deficit disorder in February 2010. During his 1977 hospitalization, he reported that he was discharged from service as a Private and claimed that he was wounded in service, as well as killed others. In December 1990, the Veteran denied combat experience, Court Martials, Article 15s, and post-service legal troubles. In March 1991, he reported 4 Court Martials related to drinking and fighting and 12 DUIs, as well as a family history of substance abuse. In May 1991, he denied a family history of substance abuse and reported that he was a Sergeant at discharge. In May 1996, the Veteran reported that has been drinking since service and reported seeing a friend die in an explosion in Okinawa, Japan. In January 2002, he reported service in Vietnam; in March 2002, he reported that he was a military police officer in Vietnam. In his claim for service connection, the Veteran reported service in Vietnam; he provided dates of service in Vietnam that are after his discharge from service. The Veteran had a VA examination in October 2009. The VA examiner reviewed the Veteran's post-service treatment history, including diagnoses of passive-aggressive personality disorder in 1991, depression and alcohol abuse in 2001 and 2002, and schizoaffective disorder in 2002. More recent treatment records dated in 2009 showed diagnoses of schizoaffective disorder and paranoid personality disorder. A review of other treatment records shows a lengthy history of alcohol abuse, thought disorder, and mood issues. The Veteran reported a history of alcohol abuse since service. He was evaluated for PTSD, and the examiner found he did not fit the diagnostic criteria for PTSD; the VA examiner stated that the attempts to elicit the Veteran's psychiatric symptoms were made, but that the Veteran was vague and his history was questionable. The VA examiner noted that the Veteran reported service in Vietnam, but that this was not shown in the Veteran's service records. Following an evaluation, the diagnoses were schizoaffective disorder and paranoid personality disorder. The VA examiner opined that there is nothing in the Veteran's service records to suggest that his psychiatric disability is due to his military service. The VA examiner noted that there was no indication in the Veteran's service records or upon mental status examination that the Veteran had a head injury or traumatic event in service, as he alleged; the Veteran's symptoms are due to a psychiatric problems, not cognitive difficulties. The Veteran was afforded another VA examination in August 2013. According to the report, the Veteran's service treatment records and treatment records since service were reviewed; the VA examiner provided synopsis of treatment records since his first post-service hospitalization in 1972, detailing the various diagnoses, and pointing out inconsistencies by the Veteran in reporting his relevant medical history. The VA examiner noted that the Veteran's initial hospitalization in 1972 showed a diagnosis of schizophrenia, but that, from 1972 to 1997, diagnoses also included schizophrenia, alcohol abuse, depressive neurosis, bipolar disorder, adjustment disorder, anxiety, dysthymia and mood disorder, and attention deficit disorder. The Veteran reported a history of incarceration related to his 5 DUIs and he reported that he began abusing alcohol in service. Following a mental status examination, the Veteran was diagnosed with schizoaffective disorder and co-morbid alcohol dependence. The VA examiner noted that the diagnoses took all of the Veteran's symptom presentations over time, and combined both a thought disorder and a mood disorder. The VA examiner noted that the Veteran's alcohol abuse over the years created diagnostic confusion, as symptoms and psychosocial impact mimic other mental health conditions. The VA examiner also noted that there is no support for a PTSD diagnosis. The VA examiner opined that the Veteran's schizoaffective disorder and co-morbid alcohol abuse are not likely related to the Veteran's military service. The VA examiner noted that, prior to 1972, including the Veteran's 1963 in-service psychiatric evaluation, the Veteran presented with an alcohol abuse problem, and that his behavior was associated with such alcohol abuse; no symptoms associated with an Axis I psychiatric disorder were shown. The VA examiner further explained that alcohol abuse or anxiety alone, without evidence of psychosis or paranoia, would not provide sufficient information to show onset of schizophrenia contemporaneous to his service, and that to make such an association would be speculative. The VA examiner further noted that the Veteran's first psychiatric hospitalization and diagnosis of schizophrenia was contemporaneous to the death of the Veteran's wife in 1972. The VA examiner pointed out that the Veteran self-reported that he did not "hear voices" or other symptoms until 2-3 years after service. The VA examiner explained that the Veteran likely had the psychiatric vulnerability prior to his wife's death in 1972, likely in the time frame in the late 1960s, as asserted by the Veteran, but that the onset of the disability was triggered by the death of his wife, as the death of a loved one is a significant stressor. In this regard, the Board observes that the Veteran has claimed that his psychiatric disorder is due to service. Specifically, the Veteran asserts that his psychiatric disorder began during service. In this case, the Veteran's claim must be denied because his schizoaffective disorder is neither caused nor aggravated by service. As the Veteran has been diagnosed with schizoaffective disorder, the provisions of 38 C.F.R. § 3.303(b) are potentially applicable. Here, he was evaluated for potential pathology during service. In addition, he did complain of poor sleep and nervousness. However no acquired psychiatric pathology, including schizoaffective disorder, was "noted" during service and no characteristic manifestations of schizoaffective disorder were identified during service. To the contrary, his September 1963 psychiatric evaluation did not show any psychiatric symptomatology; more specifically, he did not show distortions of perception, thinking was logical and affect was appropriate. The Veteran was treated for alcohol abuse; therefore, section 3.303(b) does not assist the Veteran. The Board reiterates that schizoaffective disorder was not shown in service or within one year of separation. Rather, at time of separation, the examination disclosed that the psychiatric evaluation was normal. Likewise, the Veteran did not report any pertinent symptomatology or otherwise seek treatment until 1972; even in self-report many years later the Veteran's first report of symptomatology is 2-3 years after service, and his first report of treatment is 1970. The Board finds that the weight of the evidence reflects that an acquired psychiatric disorder was not manifest during service and is not related to service. The Board observes that neither the Veteran's treating providers nor the VA examiners found a relationship between the Veteran's schizoaffective disorder and his service. The Veteran is competent to report that he has a psychiatric disorder, including schizoaffective disorder and depression; such statements are confirmed by the record. In addition, he is competent to report when his psychiatric symptoms were first identified. However, his statements regarding onset are not credible. More specifically, the report of a history of psychiatric symptoms during and since service in the Veteran's written statements is inconsistent with the normal separation examination and his own self-report that his symptoms began several years after service, as well as his lack of a report of any psychiatric symptoms in service when initially seeking treatment in 1972. Such contemporaneous reports are far more probative than the Veteran's recently revised history. Furthermore, the Board notes that the Veteran has a history of revising his own medical history, as noted by the August 2013 VA examiner. For example, the Veteran denied a family history of alcoholism when seeking treatment in May 1991, but reported a family history of alcoholism in 1996. Additionally, the Veteran has, on multiple occasions, misled treating providers and examiners as to the nature of his service; he has reported service in Vietnam, combat status, witnessing a death while in serving in Japan, promotion to Sergeant in service, and that he incurred a head injury in service, all of which were not shown by his service records. Here, the most probative evidence establishes that there was a remote onset of a psychiatric disorder, unrelated to service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To the extent that there are lay opinions from the Veteran, linking his psychiatric disorder to an in-service event or illness, the Board finds that the probative value of the general lay assertions are outweighed by the specific, reasoned opinion of the August 2013 VA examination report, as well as the October 2009 VA examination report. In particular, the August 2013 VA examiner found that the Veteran's schizoaffective disorder had its onset as a result of the Veteran's stress when his wife died, and pointed out that, other than the Veteran's claim, he has not otherwise associated his psychiatric disorder with his service. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). The October 2009 and August 2013 VA examiners, in determining that the Veteran's schizoaffective disorder is not related to his service, are entitled to greater probative weight than the more general lay assertions of the Veteran, even assuming those lay assertions were competent. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In this regard, it is important to note that there is simply no indication of any related symptoms during service or for many years thereafter. Rather, the separation examination was normal and he did not report any pertinent pathology until 1972. The remote assertions of the Veteran are inconsistent with the clinical evidence of record, which demonstrates a remote post-service onset, more closely correlated with the death of the Veteran's wife. The August 2013 VA examination report explained the reasons for the VA examiner's conclusions based on an accurate characterization of the evidence of record; thus, this opinion is highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). In sum, there is no reliable evidence linking the Veteran's acquired psychiatric disorder to include schizoaffective disorder to service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Personality Disorder The record does establish that at times, a personality disorder has been diagnosed. However, a personality disorder is not a disease or injury for compensation purposes and is not subject to service connection. 38 C.F.R. § 3.303 (2013). Beno v. Principi, 3 Vet. App. 434 (1992). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs