Citation Nr: 1537818	
Decision Date: 09/03/15    Archive Date: 09/10/15

DOCKET NO.  11-15 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include
bipolar disorder and schizophrenia.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. L. Wolinsky Associate Counsel


INTRODUCTION

The Veteran had active military service from November 1978 to October 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The Veteran's appeal was previously remanded by the Board in February 2013, and September 2014.  The September 2014 Board remand recharacterized the issue on appeal pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (Vet. App. Fed 17, 2009).

In May 2012, the Veteran testified at a travel Board hearing conducted before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing has been associated with the claims file. 

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.

FINDING OF FACT

The probative evidence does not show that the Veteran's acquired psychiatric disability is causally or etiologically related to his military service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder and schizophrenia, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).






REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Board must discuss whether VA has complied with its duties to notify and assist the Veteran in substantiating his claims.  In this respect, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)(2014).

Proper notice from VA must inform the Veteran of any information and 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). The notice requirements apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

A letter sent to the Veteran in May 2009, advised the Veteran with what information or evidence is necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information, and how VA determines the disability rating, and effective date.  The May 2009  VCAA letter was sent prior to the rating decision in September 2009.  Therefore, VA fulfilled its duty to notify. 

VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The RO associated the Veteran's service treatment records (STRs) and VA treatment records with the claims file.  Private records, and the Veteran's Social Security Administration records were associated with the claims file.  The Veteran has not identified any treatment records aside from those that are already of record, nor is there any indication that the Veteran has sought additional treatment relevant to the instant appeal.

The Veteran was also provided an opportunity to set forth his contentions during a travel Board hearing in May 2012, which fulfilled the requirements set forth by Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked).

The prior remand instructions were substantially complied with for the Veteran's claim.  The September Board remand instructions stated that the Veteran should be examined for nexus opinions regarding his acquired psychiatric disabilities.  The Veteran was examined in October 2014, and an addendum was associated with the record in July 2015.  Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The October 2014, and July 2015 addendum opinion are adequate, as the examination report shows that the examiner considered the Veteran's relevant medical/military/occupational history, reviewed relevant mental examinations with testing and provided reasoned analysis to support the medical opinion provided.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that VA must ensure that the examination provided is adequate).   

As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.   

Legal Criteria 

Service connection may be granted for a disability resulting from an injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b).  Service connection may also be granted for certain chronic diseases, including psychosis, if manifested to a compensable degree within one year following discharge from active military service.  38 C.F.R. §§ 3.307, 3.309, 3.384.

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  "The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant."  Id. at 367.



Analysis

At the Veteran's October 2014 mental disorders Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with schizoaffective disorder, depressive type, and unspecified substance related disorder.  The Veteran has also received VA psychological treatment throughout the appeal period.  Thus, the Veteran suffers from an acquired psychiatric disability, and fulfills the current disability element for service connection.  At the Veteran's travel Board hearing he essentially alleged that his in-service attack on a fellow service member represented his initial symptomatology for his acquired psychiatric disability.  The Veteran testified to having homicidal ideation, and lack of judgment beginning in service.  The Veteran recollected an incident in which he "snapped" and assaulted someone with a knife, cutting them.  The Veteran's service personnel records confirm this incident.  Thus, based on the Veteran's testimony, and his documented attack on a fellow service member, the Board finds that the Veteran's assault and alleged homicidal ideation fulfills the in-service element for service connection. 

In the instant appeal, there is conflicting evidence on the issue of nexus.  Specifically, the Veteran contends that he has had psychological symptoms during and since service.  On the other hand, the October 2014 opinion with addendum from July 2015 submitted by the VA examiner indicates a negative nexus opinion stating that the Veteran's acquired psychiatric disabilities are not as least as likely as not related to his military service.

The October 2014 medical opinion and July 2015 addendum contained not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  In coming to her conclusion, the examiner reviewed the Veteran's service treatment records, enlistment examination, separation examination, VA treatment records, and civilian medical records.  The examiner also reviewed the Veteran's social/marital/family history, reviewed the Veteran's relevant occupational and educational history, mental health history, legal and behavioral history, and substance abuse history.  The examiner's October 2014 opinion essentially concluded that the Veteran's psychological problems developed nearly thirty years after service, and that because the first documented records of the Veteran's symptoms were years after service, service played no role in the development of the Veteran's acquired psychological disorders.  The examiner also discussed the Veteran's lay assertions of his drug use, mood, and hallucinations and therefore complied with Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Based on the addition of personnel records to the record, the examiner updated her opinion and rationale in a July 2015 VA addendum opinion.  The examiner specifically reviewed the Veteran's assault of a fellow service member with a knife and maintained her conclusion and rationale that the Veteran's psychological symptoms were first documented many years after service.  The examiner also specifically stated that the Veteran's personnel records did not indicate any mental health symptoms, diagnostic evaluations, or treatment during military service.  The Board finds that the VA examiner's opinion is detailed, thorough, and based on a full review of the record, and therefore is of great probative value.  See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the review of the claims file and thoroughness and detail of the opinion).

The Veteran's contention that the cause of his service experience caused and/or exacerbated his acquired psychiatric symptoms, is not sufficient to outweigh the medical examiner's opinion.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).
While symptoms of an acquired psychiatric disorder are capable of lay observation, and the Veteran contends that his drug abuse started in-service, that he had hallucinations in-service and has had continued homicidal ideation, ultimately, the Board finds that the determination of whether a current psychological disorder is a continuing disease process of symptomatology noted in service or rather a separate and distinct disorder due to post-service events is a complex medical determination requiring medical knowledge of psychiatry, and consequently, necessitates medical expertise to resolve.   See Jandreau v. Nicholson, 492 F.3d 1372, 1377 & n.4 (stating that a veteran is not competent to identify a complex disability like cancer).  The medical expert determined that the Veteran's description of his symptomatology was inconsistent with not needing medical intervention to treat his currently diagnosed substance abuse, and schizophrenia disorder over the decades between his discharge from service and his initial documented complaints of his symptoms in 2009.  Thus, given the examiner's medical expertise and the sound basis for the unfavorable opinion rendered, the Board finds that there is credible and persuasive evidence that the Veteran's current acquired psychological disorders are not etiologically related to his service.  In short, the Veteran's lay opinion on the etiology of an acquired psychiatric disability does not outweigh the VA medical opinion.  See Madden, 125 F.3d at 1481.

The Board acknowledges that the VA examiners did not provide a clear opinion regarding whether any reported pre-service psychological disorder was aggravated beyond its natural progression by an in-service injury, event, or disease.  However, as discussed below, the Board finds the presumption of soundness attaches in this case and has not been rebutted, so an opinion regarding aggravation is not necessary.

The Board notes that while the October 2014 VA examination and July 2015 addendum did not provide an opinion regarding the aggravation of a pre-existing disability, the opinions remain adequate.  As the record lacks medical evidence of any psychological problems prior to service and the Veteran's enlistment examination was within normal limits; the presumption of soundness attaches in this case. However, as the record lacks clear and unmistakable evidence that the Veteran had a psychological disorder prior to his enlistment, the presumption of soundness has not been rebutted and an opinion on the issue of entitlement to service connection based on aggravation of a pre-existing disability is not necessary.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 

The Veteran believes that his acquired psychological disability pre-existed and was aggravated by, was incurred in, or is otherwise etiologically related to his active service; however, he is not competent to provide a diagnosis or a nexus in this case.  The issues are medically complex and require specialized knowledge and experience.  Jandreau, 492 F.3d at 1377, 1377 n.4.    

Additionally, while the Veteran has been diagnosed with schizophrenia, there is no indication that any psychosis was present to a compensable degree within one year of his separation from service, that is, by October 1981.  Therefore, service connection on a presumptive basis has not been established.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309, 3.384.  

Specific to the Veteran's history of substance abuse: when drug and alcohol abuse is at issue, service connection is precluded "in two situations: (1) for primary alcohol abuse disabilities; and (2) for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse."  Allen v. Principi, 237 F.3d 1368, 1376   (Fed. Cir. 2001).  Service connection is not precluded if abuse is secondary to a service-connected disability.  Id.; 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509, (1998).  However, for the reasons stated above, the Veteran's schizophrenia disorder is not service-connected, and a direct service connection theory is legally precluded.  As such, service connection for substance abuse must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).

As such, service connection for an acquired psychiatric disorder, to include schizophrenia, and bipolar disorder, is not warranted on any basis.  In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine.  However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim.  38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013).  Therefore, the Veteran's claim for service connection is denied.


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include
bipolar disorder and schizophrenia, is denied.


____________________________________________
WAYNE M. BRAEUER
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs