Citation Nr: 1343161 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 05-28 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to November 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2012, the Board denied entitlement to service connection for paranoid type schizophrenia. The appellant appealed and in an April 2013 order the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand. In September 2013, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), and recharacterized the issue more broadly in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), in which the Court held that what constitutes a claim cannot be limited by a lay Veteran's assertions but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The preponderance of the evidence, to include the Veteran's lay statements, which the Board finds not to be credible, is against a finding that a current psychiatric disorder is due to the Veteran's active military service or events therein. 2. There is no competent and credible evidence of a psychosis, to include paranoid schizophrenia, within one year following the Veteran's discharge from active duty. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in February 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran had previously been informed of how disability evaluations and effective dates are assigned. The claim was most recently readjudicated in November 2013. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains the Veteran's service treatment records, service personnel records, VA medical records, and private medical records. The Veteran has not identified any other outstanding record of treatment. In its September 2013 remand, the Board instructed that the Veteran be asked to identify any treatment providers who had treated him for a psychiatric disorder and whose records had not previously been submitted. The RO/AMC sent such a letter in October 2013. As acknowledged by the Veteran's representative in the December 2013 post-remand brief, the Veteran did not respond to the RO/AMC's letter. The RO/AMC therefore complied with the Board's remand instructions, Stegall v. West, 11 Vet. App. 268, 271 (1998), and was not required to take further action pursuant to its duty to assist. 38 C.F.R. §§ 3.159(c)(1)(i), (c)(2)(i) (requiring claimant to cooperate fully with VA's efforts to obtain federal and non-federal records, including providing identifying information). In addition, the Veteran underwent a VA examination pertaining to his claim and an addendum opinion was provided which is adequate to decide the claim, as explained below. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has been diagnosed with paranoid schizophrenia, which is a psychosis and therefore a chronic disease. 38 C.F.R. § 3.384(f) (defining psychosis to include schizophrenia). The Board will therefore consider the chronicity and continuity provisions of 38 C.F.R. § 3.303(b). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, chronic diseases including schizophrenia 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(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). In this case, the preponderance of the evidence reflects that a psychiatric disorder did not manifest in service, within the one year presumptive period, or for many years thereafter. As noted by the parties to the joint motion, the Veteran has contended that he became stressed and paranoid during his service in the Korean demilitarized zone. He indicated that upon arrival in Korea, he was told that his unit could come under attack at any time. As a result, he reportedly grew fearful, started to use drugs and alcohol, and stopped showing up for formation and duty assignments. He alleges that as a result of this he was discharged from service. He reported continuing to suffer from a psychiatric disability since service and had been incarcerated on and off over the years since service, and therefore had not gotten the psychiatric care that he needed. Lay witnesses are competent to testify as to their observations, but this testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the following reasons, the Board finds that the Veteran's testimony in this regard is not credible because it conflicts with other evidence of the record that is of greater probative weight. The Veteran's service treatment records do not reflect any complaint, finding, treatment, or diagnosis with respect to either claimed psychiatric disability. As noted by the parties to the joint motion, this absence of evidence does not, by itself, warrant the conclusion that the Veteran's later statements, indicating that he experienced psychiatric symptoms in service, are not credible. Significantly, however, the Veteran himself indicated on the October 1981 separation report of medical history that he did not have and had never had depression or excessive worry, nervous trouble of any sort, or frequent trouble sleeping. The Board finds that this contemporaneous statement made to a health care provider is of greater probative weight than the Veteran's later statements made during the course of an appeal from the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999) (interest may affect the credibility of testimony); Fed. R. Evid. 803(4) (noting that statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy and not excluded by the hearsay rule because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran's statements indicating that he experienced psychiatric symptoms in service are therefore not credible, and the most probative evidence of record reflects that he did not have such symptoms. The lack of notation of psychiatric symptoms or diagnosis and the lack of credible evidence of such symptoms or diagnosis warrant a finding that 38 C.F.R. § 3.303(b) is not for application, as that regulation applies either where a chronic disease is shown as such in service or a chronic disease is noted in service but chronicity in service is not adequately supported. For the above reasons, neither circumstance is present in this case. The Veteran's service personnel records also indicate that he was involved in a number of disciplinary actions. In October 1979, he went absent without leave for a period of four days. Then in May and June 1981, his privileges were suspended because he had missed formation. Reports dated in August and September 1981 reflect that the Veteran was written up for ration control violations, delinquent payments, missing formations, and refusal to report to duty. In October 1981, the Veteran was recommended for separation prior to the normal expiration of his term of service for the good of the service. The report indicated that the Veteran had received one Article 15 and had been counseled five times. The recommendation report notes that no psychiatric evaluation was conducted. Following service, a July 1987 VA hospital discharge summary reflects that the Veteran reported a history of cocaine use for the prior four years. He denied previous treatment. The Veteran participated in counseling and occupational and corrective therapies. Axis I diagnoses included cocaine dependence and cannabis abuse. Records from the Texas Department of Criminal Justice from a period of incarceration reflect that he was seen for psychiatric disorders as early as 2004. A May 2004 report notes that the Veteran complained of hearing voices. He also reported treatment for schizophrenia and PTSD since 2001. The treatment providers noted a diagnostic impression of schizoaffective disorder. A June 2004 report indicates the Veteran's report of hearing voices since the early 1990s, as well as a history of cocaine abuse. An August 2004 treatment plan notes diagnosis of paranoid schizophrenia. The fact that the Veteran was hospitalized in July 1987 and the Axis I diagnosis was of cocaine dependence and cannabis abuse, but there was no diagnosis of schizophrenia or any psychiatric disorder, constitutes evidence that he did not have a psychiatric disorder, to include schizophrenia, at that time. Had the Veteran had either psychiatric symptoms or symptoms warranting a diagnosis of a psychiatric disorder, it would be expected that the health care professional who recorded the other diagnoses would have noted these other symptoms or diagnoses in the document summarizing the Veteran's hospitalization. Buczynski v. Shinseki, 24 Vet. App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). This contemporaneous evidence of a lack of psychiatric symptoms or disorders approximately 6 years after service is of greater probative weight than the Veteran's later statements indicating continuity of psychiatric symptomatology that were made during the course of an appeal from the denial of compensation benefits. The above analysis reflects that the preponderance of the evidence indicates that the Veteran did not have psychiatric symptoms or a disorder in service, within the one year presumptive period, or for many years thereafter. With this analysis in mind, the Board will consider the October 2010 VA examination report and December 2011 addendum. The October 2010 VA examiner indicated that he reviewed the Veteran's claims file. The examiner noted that the Veteran was not involved in combat, but reported being stationed twelve miles from the Korean demilitarized zone. He stated that during a war game exercise, South Korean soldiers dressed as North Korean soldiers threw a dummy grenade in the tent and announced that they were now dead. He also reported that he did not feel safe while stationed there because he was not issued ammunition to protect himself. He reported intense fear, and "going off on the sergeants" because he was not issued ammunition, and that he asked to be discharged from service. He did not report any life-threatening trauma. The Veteran did indicate that his substance abuse increased after the training exercise incident. The examiner noted that the Veteran received one Article 15 for going absent without leave, as well as a few other infractions including missing formation, a ration control violation, pass violation, and refusing a lawful order. After service, the Veteran reported that he had been incarcerated from 1983 to 1984, 1987 to 1989, 1992 to 1994, and 2003 to 2009 for various crimes, including drug-related offenses. The Veteran indicated that he first used cocaine in 1986 or 1987. After obtaining the Veteran's complete social and psychiatric history, and performing a mental status examination, the examiner diagnosed paranoid schizophrenia and cocaine dependence, in full remission. In a December 2011 addendum report, another VA examiner noted that he reviewed the Veteran's claims file, including his personnel and service treatment records, as well as the appellant's statements in support of his claim. With respect to paranoid schizophrenia, the examiner opined that it was less likely than not that this disability was caused by or was a result of military service. In so finding, the examiner determined that there was no relationship between the diagnosis and the Veteran's service or any complaints or problems in service. He noted that there were no records of any mental health complaints, diagnosis, or treatment in service, and that the Veteran himself admitted that he was not evaluated by mental health and he waived such review at discharge so he could be separated from service as soon as possible. He noted that military personnel records indicated that the Veteran was recommended for discharge due to continued pass violations and indebtedness, and that none of these documents contain any statements from the Veteran or others of a psychiatric or mental health nature, or indicate that the appellant was experiencing any such problems in service. In sum, the examiner found no evidence to support the Veteran's claim that his mental health problems started in service or are related to service. The Board finds that the October 2010 VA examination and December 2011 addendum are adequate and entitled to significant probative weight. The examiners accurately characterized the evidence of record, including the absence of psychiatric symptoms in service. While the Veteran indicated in his statements that he had psychiatric symptoms in service, the Board has found those statements not credible, and the examiners' statements and conclusions are consistent with this finding. Moreover, the December 2011 VA examiner explained the reasons for his conclusion of a lack of nexus between the current psychiatric disorder and service in light of this accurate characterization of the evidence of record, and his conclusion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The only other opinion as to whether there is a relationship between the Veteran's current psychiatric disorder and service is that of the Veteran. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran's testimony as to the etiology of his psychiatric disorder is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Clemons, 23 Vet. App. at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). The Veteran's statements indicating a nexus between his current psychiatric disorder and service are therefore not competent. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia. 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). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs