Citation Nr: 1536712 Decision Date: 08/27/15 Archive Date: 09/04/15 DOCKET NO. 09-12 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from July 1973 to August 1975. This case comes before the Board of Veteran Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for a psychiatric disorder. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. In October 2010, the Veteran was afforded a Board video hearing from the RO before the undersigned in Washington, DC. A transcript of the hearing is of record. In September 2013, the Board remanded the claim currently on appeal for further evidentiary development of requesting outstanding post-service VA treatment records and to obtain a medical opinion regarding the Veteran's psychiatric disability. This was accomplished, and the claim was readjudicated in a February 2014 supplemental statement of the case. For this reason, the Board concludes that that the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran has currently diagnosed MDD, polysubstance dependence, and personality disorder not otherwise specified. 2. In-service treatment records reveal complaints and treatment for psychiatric symptoms, but no diagnosis of a psychiatric disorder. 3. The Veteran's currently diagnosed acquired psychiatric disorder is not etiologically related to service. 4. A personality disorder is not a disability for VA compensation purposes. 5. Service connection for alcohol abuse or substance abuse on a direct basis is precluded by law. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include MDD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A December 2007 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The notice included provisions for disability ratings and for the effective date of the claim. With regard to the duty to assist, service treatment records, service personnel records, VA treatment records, private treatment records, and the Veteran's statements, including the transcript from the October 2010 Board hearing have been obtained and associated with the claims file. Further, the RO arranged for a VA examination in December 2010 and a medical opinion was obtained in January 2014. For reasons discussed in detail below, the Board finds the January 2014 VA medical opinion is adequate. The opinion was provided by a qualified mental health professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor his representative has challenged the adequacy of the examinations obtained. 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 his 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). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The condition of MDD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2015); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for an Acquired Psychiatric Disorder The Veteran asserts that he is entitled to service connection for a psychiatric disorder incurred in service. See October 2010 Board Hearing Transcript. Upon review of all the evidence of record, both lay and medical, the Board finds that the Veteran's currently diagnosed psychiatric disorder, MDD, is not etiologically related to service. The evidence of record shows treatment for psychiatric problems while the Veteran was in service. The June 1973 entrance examination should that the psychiatric clinical evaluation was normal. Service treatment records show reports of depression, insomnia and nervous trouble. The Veteran saw a psychiatrist in service for several months after engaging in a fight. His personnel records also show that he was absent without leave (AWOL) in service and had difficulty with authority. In a June 1975 consultation report, the Veteran reported feeling "very nervous" and at times became "very shaky." He also reported symptoms of insomnia, weight loss, feeling tense, and trembling. The June 1975 mental health professional noted that the Veteran had been seen at the clinic on three occasions. It was also noted that the Veteran should continue outpatient treatment. The Veteran also claimed auditory hallucinations. However, in May 1975, the Veteran underwent a mental status examination and it was noted to be normal. The May 1975 service separation examination also reveals a normal clinical psychiatric evaluation at service discharge. Notably, service treatment records, to include the service separation examination report, do not demonstrate a diagnosis of a psychiatric disorder during service. The Veteran underwent a VA examination in December 2010. After interviewing the Veteran and performing a mental status examination, the VA examiner diagnosed the Veteran with MDD, polysubstance dependence in remission, and a personality disorder not otherwise specified. The examiner noted that the Veteran had several significant inconsistencies in his report. It was noted that the most significant of these discrepancies was his report of feeling protected and secure during his childhood and being whipped with an extension cord and belts by both parents. The Veteran also reported acute distress associated with his sister's death. Aside from that, he was presenting with moderate depression. The Veteran was also noted to have a long and significant polysubstance dependence problem. It was unclear to the examiner whether it was in remission or current as the Veteran's report was not particularly credible. The examiner noted that he Veteran had presented with behavioral problems and aggressive behavior both in the military and since discharge. Given all of the available information, the examiner stated that the Veteran's behavior problems and depression were most likely explained by characterological issues and substance/dependence, or a combination of both. They were likely not a result of his military experience. His behavior in the military was likely not due to any specific psychiatric condition. The VA examiner also opined that the Veteran's psychiatric disorders were not likely a result of service. During the description of the Veteran's military history, the VA examiner noted that the Veteran indicated that he received some psychiatric treatment during service. However, according to the VA examiner, "there were no records in the chart indicting that this did actually occur." The Board finds the December 2010 VA medical opinion to lack probative value as it is based on an inaccurate factual history. To be adequate, a medical opinion must be based upon an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As noted above, service treatment records indicate that the Veteran did in fact receive psychiatric treatment in service. He also reported symptoms of insomnia, weight loss, feeling tense, and trembling. The Board notes that the December 2010 VA examiner did not discuss any of these service treatment records which directly related to in-service psychiatric symptoms or treatment. Accordingly, the December 2010 medical opinion lacks probative value. Pursuant to the Board's September 2013 remand, the RO obtained a VA addendum opinion in January 2014 from the examiner who conducted the December 2010 psychiatric examination. The examiner noted that the claims file had been reviewed. The examiner then opined that it was less likely as not that the Veteran's psychiatric disorder had its onset in service or was otherwise related to service. In support of this opinion, the examiner stated that the Veteran's previous psychiatric symptoms were best accounted for by his underlying character style and a chronic history of alcohol and illegal substance abuse. These characterological concerns included a tendency to get into fights, which per his report, led him to being fired on several occasions. During the original interview in December 2010, the Veteran reported that depressive symptoms were partly related to his unemployment status. His difficulties in employment at that time were best accounted for by his characterological issues, as described above, and as described in the initial 2010 report. His medical problems (i.e., kidney failure) were also noted to be contributing factors to his unemployment status. It was further noted that, although the Veteran did receive mental health treatment during service, those mental health services appeared to be related to drug and alcohol abuse, a pending court martial, and legal issues secondary to an assault and an AWOL. In light of the Veteran's history, including his substance use and conduct concerns, the examiner stated that his symptoms were best accounted for by his personality style. The reported symptoms on the May 1975 and June 1975 service treatment records were therefore most likely transient reactions to situational stressors at that time which were the direct result of the Veteran's underlying personality and characterological style. His reported mood symptoms during military service therefore did not constitute an inherent mood disorder diagnosis and were not directly linked to symptoms experienced after service, including the time the initial exam was conducted in 2010. The Board finds the January 2014 VA medical opinion regarding the Veteran's psychiatric disorders to be probative. The examiner reviewed the claims file, interviewed the Veteran, discussed relevant service treatment records, and provided a medical opinion supported by a well-reasoned rationale. VA treatment records dated from August 2005 to September 2013 and private treatment records from Dr. R.G. from September 2010 to March 2011 have also been reviewed. The records reflect diagnosis and treatment for major depressive disorder. However, an opinion as to the etiology of the Veteran's disorder was not provided. The Board has also considered the Veteran's statements purporting to relate his psychiatric disorder to service. As a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the complex psychiatric disorder of MDD. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). MDD is a complex psychological disorder because of its multiple possible etiologies and manifests symptomatology that may overlap with other disorders. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a condition capable of lay diagnosis). Accordingly the Veteran's statements as to the etiology of the claimed psychiatric disorder are outweighed by the January 2014 VA examiner's findings and opinions. Regarding the Veteran's personality disorder, the Board notes that personality disorders are by definition preexisting disorders, considered a congenital or developmental defect, and are not subject to service connection under 38 C.F.R. § 3.303(c) (see also 38 C.F.R. §§ 4.9, 4.127 (2015)) in the absence of superimposed disease or injury during service. VAOPGCPREC 82-90. Although the Veteran has been diagnosed with a personality disorder, the evidence does not demonstrate that the Veteran's personality disorder was subject to a superimposed disease or injury during service. Service treatment records reveal numerous evaluations of the Veteran; however, the May 1975 mental status examination was normal. The May 1975 service separation examination also revealed a normal clinical psychiatric evaluation at service discharge. In regard to the Veteran's polysubstance dependence, the Board notes that direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C.A. §§ 1110 and 38 U.S.C.A. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). In this case, the evidence of record does not suggest that an alcohol or drug abuse disability is secondary to, or a symptom of, a service-connected disability. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder, to include MDD, and the claim must be denied. Because the preponderance of the evidence is against the claim , the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a chronic acquired psychiatric disorder, to include MDD, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs