Citation Nr: 1343138 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 04-02 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). (The issue of entitlement to VA compensation benefits pursuant to 38 U.S.C.A. § 1151 is the subject of a separate decision of the Board of Veterans' Appeals). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran had active military service from September 1981 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) following an April 2003 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for PTSD; and, a January 2004 rating decision that denied service connection for obsessive-compulsive disorder with associated dysthymia. This issue was before the Board in August 2008 and May 2012 when the matter of service connection for PTSD was denied and the matter of service connection for an acquired psychiatric disorder other than PTSD was remanded for additional development. In July 2008, the Veteran testified at a videoconference hearing before one of the undersigned, and in March 2011 he testified at a videoconference hearing before another of the undersigned. Transcripts of those hearings are associated with the claims files. As the Veterans Law Judges who presided at hearings must participate in the decision on the claim (see 38 C.F.R. § 20.207) (2013), this appeal is being decided by a panel of three Veterans Law Judges. The Veteran has been advised of his entitlement to a hearing before the third judge of the panel, but he did not respond within 60 days of such notice and the Board will accordingly proceed with the panel decision. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In October 2012, the Veteran applied to reopen a claim for service connection for PTSD. This issue 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. FINDING OF FACT The Veteran's current anxiety disorder was not manifest in service and is unrelated to service. CONCLUSION OF LAW Anxiety disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With respect to the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, the Board notes that the Veteran was provided letters in January 2003 and October 2008 that contained all required notice. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that any ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 10 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). In any event, neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009 (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs), service personnel records, and post-service treatment records were obtained. The Veteran has been afforded appropriate VA examination. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Veteran was afforded hearings 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) (2010) requires that the Board Member who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Veterans Law Judge (VLJ) and Acting VLJ identified the issue to the Veteran and asked specific questions directed at identifying whether he met the criteria for service connection. Additionally, the Veteran volunteered his history and symptoms since service. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he 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. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issue on appeal. Law and Regulations Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Board notes that it has reviewed all of the evidence in the Veteran's claims files, and on Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran alleges that four incidents occurred in service which caused psychiatric disease. In testimony provided at a July 2008 videoconference hearing, and in a statement received in November 2008, the Veteran maintained that in the spring or summer of 1985 or 1986, while assigned to the 177th Field Artillery, 85th Maintenance Battalion at Fort Bragg, he was sent to recover another tracked vehicle. Reportedly, after the Veteran and his crew hooked up to the track and pulled the vehicle out, they discovered that the "113" had run over and killed a black private (whose name the Veteran thought was "Johnson") who had been laying underneath in a sleeping bag. (The Board notes that an M-113 is an armored personnel carrier.) The Veteran also testified that in April 1987, while assigned to the 596th Maintenance Battalion, Fort Irwin, California, he was training for a summer REFORGER. (The Board notes that REFORGER is an acronym for REturn of FORces to GERmany.) During a live-fire exercise, however, a major reportedly used the incorrect grid coordinates and a mortar shell missed the target area and exploded among the troops, resulting in one individual being killed and several others injured. The incident reportedly occurred on Fort Irwin in an area called "the Painted Rocks." In a January 2003 statement, the Veteran indicated that the consequences of being falsely accused of rape in service had caused psychiatric disease. He also indicated that in June or July 1986, while assigned to the 177th Field Artillery, 85th Maintenance Battalion, Fort Bragg, he witnessed the tailgate of the truck fall open, causing three soldiers to fall out, including one female soldier who reportedly broke her neck and died. In a November 2008 statement, he reported that this incident occurred in the winter of 1987 while he was assigned to the 596th Maintenance Battalion. Finally, in various statements of record including a March 2011 hearing transcript, the Veteran maintained that he was falsely accused of rape during his military service and that this accusation caused the failure of both his marriage and his military career. The Veteran's service personnel records show that his military occupational specialty was tracked vehicle repairman. They also show that he was charged with rape in April 1988 and thereafter requested discharge for the good of the service in lieu of court martial. He separated from service in September 1988 with a general discharge. The Veteran's service treatment records (STRs) are silent for psychiatric treatment. Following service, the Veteran sought psychiatric treatment from VA in January 2002. He reported that his wife divorced him because of conflicts with their 20-year old son. He would reprimand the son when he come 30 minutes late in the evening, and once this led to physical altercation (pushing). He was reprimanded at work as a bus driver when a passenger complained that he did not stop at his house, and a female co-worker had complained that he compared her to Dolly Parton. He complained of trust issues, which he attributed to being falsely accused of rape while in the Army, and compulsive behaviors. He denied any history of mental illness or psychiatric treatment. He obsessively ruminated about what happened to him in service. The examiner noted an assessment of obsessive-compulsive disorder with associated dysthymia, isolation affect and externalization. In December 2002, the Veteran submitted a claim of service connection for PTSD, alleging in part that it was due to a fall on the head that he sustained. (Service connection for PTSD was eventually denied by the Board by a decision in May 2012.) VA treatment records and examination reports dated from 2002 to 2006 note that the Veteran continued to receive treatment for psychiatric problems. On VA psychiatric examination in December 2004, dysthymic disorder and panic disorder with agoraphobia were diagnosed. A January 2007 VA outpatient treatment record notes the Veteran's complaints of intrusive thoughts and nightmares related to traumatic events during his military service. The diagnoses included PTSD with secondary depression, obsessive-compulsive disorder, and panic disorder. Additional treatment records dated in 2007 likewise note the Veteran's treatment for various psychiatric problems, including PTSD. During the Veteran's October 2007 RO hearing, he testified that after being accused of rape in service, and given the option of a general discharge, he had nightmares about what happened and was very angry. Nobody wanted to be around him. He was divorced from his wife in May 2000, and he started being treated psychiatrically in 2000 or 2001. On VA psychiatric examination in December 2007, PTSD was not diagnosed, and the diagnoses were of panic disorder with agoraphobia and obsessive-compulsive disorder. An August 2008 statement from a VA Doctor of Pharmacy notes that the Veteran continued to be treated for various psychiatric disabilities. A July 2009 psychological evaluation report from S.F., Psy.D., notes the Veteran's complaints of panic attacks, insomnia, and nightmares about two alleged stressors -- a mortar exploding among the troops and running over the private with the 113. The diagnoses included PTSD, major depressive disorder, and social phobia. In an August 2010 mental status examination report, J.A., the Veteran's psychologist, opined that the Veteran suffered from "clear symptoms of PTSD which he relates to events in service where he saw people being killed and felt responsible." It was noted that the Veteran's refused to give enough details of his stressors for verification. During the Veteran's March 2011 Board hearing, he testified about in-service events and post-service symptoms and indicated that his behavior had changed after service. The Board remanded the case to the RO in May 2012 for an examination on the matter of whether the Veteran's current or recent psychiatric disability (other than PTSD), to include obsessive-compulsive disorder, panic disorder, and major depression noted in VA and private treatment records, was causally or etiologically related to his service. On VA psychiatric examination in August 2012, the examiner reviewed the Veteran's claims folder and electronic records including VA treatment records in extensive detail, and examined the Veteran at length and found him to have anxiety disorder NOS, and personality disorder. As for anxiety disorder, the examiner noted that the majority of the Veteran's complaints were consistent with clinically significant anxiety. Although he had many symptoms of specific disorders such as obsessive compulsive disorder, social phobia, and specific phobias, the full criteria for any of the specific anxiety disorders (such as those) were not met. Therefore, a diagnosis of anxiety disorder NOS was warranted as the most appropriate description of the Veteran's symptoms at that time. The examiner reviewed the Veteran's pre-service, service, and post-service history, and noted that the Veteran indicated that he began having anger problems and had thrown objects at family functions, when he returned to the United States, and that his marriage had lasted for 20 years, but eventually ended in a final divorce in April 2000, which he attributed to his anger problems. Review of medical records revealed an October 2001 VA treatment note indicating sleep disturbance; rule out depression. The Veteran was referred to a mental health consult that was completed in November 2002 by a psychiatrist. The consult report indicated that the Veteran was complaining of a recent divorce which he attributed to conflicts with his 20-year old son which had led to shoving on one occasion. The Veteran had also been reprimanded at work recently due to a passenger's complaint that in his bus driver job, he did not stop at the correct location and a female co-worker's complaint that he made a sexually inappropriate comment about her. The VA psychiatric examiner felt that due to the lack of a continuum of treatment between service and the Veteran's seeking treatment in 2002, and in the context of a variety of stressors occurring since his military service, it was less than likely that the Veteran's anxiety disorder and personality disorder were related to or caused by his service. Analysis Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's anxiety disorder NOS, the acquired psychiatric disorder which the preponderance of the evidence indicates has persisted during the course of the claim. The evidence shows that it was not manifest in service. There was no psychiatric treatment or diagnosis in service, and no competent evidence indicates that a psychiatric disorder was present in service. The evidence also shows that it is unrelated to service. The Veteran first sought treatment for psychiatric issues in 2001, which was years after service, and at that time, he had just been divorced and had been having problems with his son and at work. The examiner who examined him in 2013 reviewed his records in detail, considered this and other relevant information, and felt that his anxiety disorder was unrelated to service. It had been many years since he had been discharged from service when he first sought treatment, and he had had stressors post-service. Moreover, he had denied any prior history of mental illness when he was seen by VA in January 2002. There is no competent evidence of record relating the Veteran's current anxiety disorder to service, and the preponderance of the evidence including the absence of treatment and his January 2002 denial of a prior history of mental illness for years post-service works against continuity since service. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this case, the VA examiner demonstrably was informed of the pertinent facts and provided a fully-articulated opinion with full supporting rationale. The Board accordingly finds the opinion to be probative under the criteria of Nieves-Rodriguez. The Board also notes that this probative medical opinion is not contradicted by any other medical opinion of record. Personality disorder is not a disease or injury within the meaning of VA compensation law, so service connection may not be considered. 38 C.F.R. § 3.303(c). VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence offered by the Veteran in the form of his testimony, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Veteran's lay evidence is offered to demonstrate incidents during service and to assert an etiological relationship between those events and his claimed psychiatric disorder. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to report events during service, but in its May 2012 decision denying service connection for PTSD the Board found the Veteran to be less-than-credible as a historian. In regard to the etiology of the Veteran's psychiatric disorder, this is a complex medical question not within the competence of a layperson. Kahana, supra. In sum, based on the evidence and analysis above, the Board finds that an acquired psychiatric disorder other than PTSD was not incurred in or aggravated by service. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49. 54. ORDER Service connection for an acquired psychiatric disorder other than PTSD is denied. _________________________ ________________________ DEREK R. BROWN JOHN H. NILON Veterans Law Judge, Acting Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ___________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs