Citation Nr: 1538975 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 06-14 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for bilateral glaucoma. 3. Entitlement to an initial compensable disability rating for a corneal scar of the right eye. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2005 and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board remanded the Veteran's claim for service connection in May 2007, May 2008, and January 2009. Following development, the Board denied the Veteran's claim in an April 2011 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2013 Memorandum Decision, the Court vacated the April 2011 Board decision. The Board then remanded the claim in February 2014. In January 2015, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in March 2015. In March 2015, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him and his representative a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. The Veteran has responded and the 60 day period has expired. Accordingly, the Board will proceed with the consideration of his case. In the April 2011 decision, the Board remanded the issues of entitlement to service connection for bilateral glaucoma, and entitlement to an initial compensable disability rating for a corneal scar of the right eye. Those issues remain on appeal in remand status, and are being adjudicated by the RO. FINDING OF FACT The preponderance of the evidence shows that an acquired psychiatric disorder is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial July 2005 RO decision by way of a letter sent to the Veteran in January 2005 that informed him of his duty and the VA's duty for obtaining evidence. In September 2006, June 2007, and March 2014, prior to the May 2014 supplemental statement of the case, the RO also provided adequate notice of how disability ratings and effective dates are assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. The Veteran's available service personnel and treatment records, VA treatment records, and lay evidence have been obtained. Additionally, the March 2015 VHA specialist's opinion is adequate. The VHA specialist used his expertise to draw conclusions from the totality of the evidence. His report discussed the medical and lay evidence of record sufficiently to render complete opinions and rationales. See Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008). This claim was remanded by the Board for additional development in May 2007, May 2008, January 2009, and February 2014. There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA provided the requisite notice letters, requested additional treatment records and lay statements, scheduled the Veteran for a videoconference hearing (which he withdrew in July 2008), and provided the Veteran with a VHA specialist's opinion in March 2015. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Analysis: Service Connection 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); see also 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). To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). However, in this case, the most probative evidence of record shows that the Veteran was not in combat. As such, this presumption is not applicable. The United States Court of Appeals for the Federal Circuit (Federal Circuit) observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated." See Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011) (observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence'" in personal-assault cases of PTSD). The Veteran contends in his January 2005 claim that "While in the Marine Corps I became totally mentally unstable. I could not deal with anyone raising their voice at me." In May 2006, the Veteran told a VA clinician that he was "mistreated" while in service, and that he was "jumped on and beat on." In a September 2006 statement, the Veteran reported that in August 1975: [I] was charge[d] with smoking pot and the two officer[s] that enter[ed] our room tried to physically detain us and we fought back. After that....I knew they wanted to kill [me]....[T]he Authorities was [sic] the one who was doing this to me. I was lock[ed] up and told I would be killed and they would say I was at some other duty station and got killed. The time I was at this duty station there was a lot of accident [sic] that wastn [sic] accident where people got killed....I was drinking heavy in the [service]. I hated the military authority and they hated me. In an August 2007 stressor statement, the Veteran reported that during one episode of discipline, a guard beat him with a nightstick and threatened to kill him. He reported that during a second episode of discipline, two officers took away his marijuana and threatened to kill him. In November 2007, the Veteran told a VA clinician that he was given an Article 15 for fighting and insubordination, was beaten unconscious in the brig, and witnessed a lot of violence against his fellow inmates. The Veteran expressly denied any combat experience in service. In a July 2008 statement, the Veteran attributed his current psychiatric symptoms to his military service. In September 2008, the Veteran's representative wrote that the Veteran reported being beaten and threatened while incarcerated in service. In September 2008, the Veteran wrote in a letter to VA stating that: During my stay in the military my total conscious mind became altered from what I knew to be reality....During my stay I can remember being punished ninety-eight percent of the time. Many times there was a gun put to my head to shock me into following the dictated path. My world became a total nightmare...until my nerves and emotional state began to suffer....Punishment was a daily routine simply because someone did not like you...[I was] beaten with a night stick and was knocked unconscious....[An officer] informed me that they would kill me and would say that I was overseas. In an August 2014 statement, the Veteran reported that in May 1974 his "truck flip[ped] over and [pinned] the Sergeant under the truck." The Veteran also reported in August 2014 that "I was lock[ed] up in the Bri[g] for 30 days which was very stressful." The Veteran's family members have also submitted statements, including dated August 2005 and September 2008, stating that his psychiatric status was adversely affected by his service. Also in September 2008, a fellow Veteran , E.H., reported that the claimant was "lock[ed] up most of the time I went on his post to find him." As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements and inconsistency with other evidence submitted on behalf of the appellant. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Board finds that the Veteran's statements regarding an in-service incurrence lack credibility both because they are inconsistent, and because they are unsupported by any contemporaneous complaints, diagnosis, or treatment. Specifically, as discussed above, the Veteran's descriptions of his stressors vary significantly, ranging from being unable to deal with anyone raising their voice at him to beatings to death threats to reports of working at a duty station at which there were multiple killings that were falsely reported as accidents. Statements from the Veteran's family are likewise inconsistent with the evidence of record. Specifically, the Veteran reported at a December 2007 VA examination that he had his first drink of alcohol at age 12, and had developed a drinking problem by age 17 or 18. By contrast, his family members wrote to VA in August 2005 that "he use[d] to never drink," "my son never drank now he does to help him sleep," and "Mt [sic] brother was not a drinker, but now he is a heavy drinker. What the service does to the people that go in...sure changes them when they get out. [His] personality, well hell his whole demeanor has changed for the worst." The fact that the Veteran provided such inconsistent accounts of the event(s) that ostensibly occurred during his service leads the Board to find that they lack credibility. Moreover, the Board finds the fact that the Veteran's statements are unsupported by any contemporaneous complaints, diagnosis, or treatment further demonstrates that they lack veracity. Additionally, in the Veteran's March 1976 Report of Medical Examination a clinician found that the Veteran's psychiatric status was "Normal." In light of the foregoing, the Board finds that none of the statements regarding the events which ostensibly occurred during the Veteran's service, and to which he attributes his acquired psychiatric disorder, are credible for purposes of establishing service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed.Cir. 2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). Further, the most probative evidence is against a nexus between any in-service event and any current disability. Specifically, the March 2015 VHA specialist diagnosed four distinct disorders: polysubstance abuse, personality disorder including rule out antisocial personality, schizoaffective disorder, and PTSD. The Board finds that, in this case, the first two diagnoses are not subject to service connection. Specifically, personality disorders as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (2015). Similarly, the Veteran's polysubstance abuse reflects willful misconduct, including, as the VHA specialist expressly cited, the Veteran's November 1975 Possession of Marihuana, which is well-documented in his service personnel records. 38 C.F.R. § 3.301 (2015). The Veteran's in-service polysubstance abuse is a primary disability, and was not incurred in the line of duty. Allen v. Principi, 237 F.3d 1368 (Fed.Cir. 2001). Finally, the Veteran is not in receipt of any service-connected disability to which his polysubstance abuse is secondary. Id. The Board further finds that the March 2015 VHA specialist's opinions as to the Veteran's schizoaffective disorder and PTSD are most probative. Specifically, the VHA specialist found that "It is less likely than not that the schizoaffective disorder is related to or had its onset in service" because there was no evidence of any such disorder or its symptoms in service, and it was first diagnosed decades after his separation from service. Similarly, the VHA specialist opined that "It is less likely than not that the Veteran suffers from posttraumatic stress disorder secondary to trauma experienced in the military [because]....it is less likely than not that the reported stressors occurred." The VHA specialist's opinions are competent because he is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Also, his opinions are credible based on their internal consistency and his duty to provide truthful opinions. The Board further finds that the VHA specialist's opinions are most probative because they considered the Veteran's medical records and discussed his medical history, provided unequivocal and conclusive opinions, and offered clear reasoning demonstrating that the Veteran's claimed psychiatric disorders are unrelated to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The VHA specialist's opinions warrant greater probative weight than the Veteran's own statements because the VHA specialist based his conclusions on correct facts consistent with the evidence of record, whereas the Veteran based his conclusions on assertions that contain internal contradictions and are likewise inconsistent with the contemporaneous findings of willful misconduct in service and psychiatric normalcy at separation from service. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999) (the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given). The Board recognizes two contentions of the Veteran's representative in her April 2015 response to the VHA specialist's opinion, but finds that neither is availing. First, she asserts that "it is not the medical examiner's role to determine if the record corroborates the appellant's account of his in-service injury. Dalton v. Nicholson, 21 Vet. App. 23, 29 (2007)." However, here, unlike in Dalton, the VHA specialist did not ignore the Veteran's lay statements; rather, he recounted them in great detail and determined that they were inconsistent with the contemporaneous evidence of record. Id. at 39. Further, unlike in Dalton, the Board did not in this case specifically assume the existence of an in-service event or injury. Id. Finally, while the Board has made its own credibility determination in this case, neither Dalton nor any other authority precludes the Board from seeking a VHA specialist's opinion as to credibility in assessing whether the Veteran has a psychiatric disability related to these in-service experiences. Consequently, this assertion is unavailing. Second, the Veteran's representative asserts in April 2015 that "the examiner failed to opine about whether the veteran's acquired psychiatric disorders, which he clearly found pre-existed service, were aggravated thereby." The Board finds that the Veteran's representative has mischaracterized the evidence in an attempt to apply the presumption of soundness where it does not belong. Specifically, the March 2015 VHA specialist did not find that the Veteran's acquired psychiatric disorders pre-existed service; rather, he found only that the polysubstance abuse pre-existed service, as the Veteran had stated in his December 2007 VA examination report that he began drinking alcohol at age 12 and had developed a drinking problem by age 17 or 18. However, as discussed above, the Veteran's polysubstance abuse is not subject to service connection because it is a primary disability and was not incurred in the line of duty, and the Veteran is not in receipt of any service-connected disability to which his polysubstance abuse is secondary. Allen v. Principi, 237 F.3d 1368 (Fed.Cir. 2001). Consequently, even if the presumption of soundness were applied to the Veteran's polysubstance abuse and demonstrated that the second requirement of service connection-in-service incurrence or aggravation-was met, it would not warrant a grant of service connection because service connection is not available for a primary disability of polysubstance abuse. Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed.Cir. 2009) (the presumption of soundness relates to the second requirement, namely the showing of in-service incurrence or aggravation of a disease or injury). By contrast, the March 2015 VHA specialist found with respect to schizoaffective disorder that "There is no evidence in his military medical record of any symptoms of anxiety, depression, or psychosis during the time he was in the military." He further found that the Veteran was first diagnosed with schizoaffective disorder in 2007. In order to invoke the presumption of soundness, a claimant must show that he suffered from a disease or injury while in service. Holton, 557 F.3d at 1367 (Fed.Cir. 2009). Here, the VHA specialist expressly found that the Veteran did not suffer from that disease or its symptoms while in service. Likewise with respect to PTSD, the VHA specialist found that there was "no evidence that the index trauma [in service] that might have led to a diagnosis of PTSD actually occurred." Consequently, the Veteran's representative's statement that the VHA specialist "clearly found [that the acquired psychiatric disorders] pre-existed service" is a mischaracterization of the VHA specialist's opinion, and neither his opinion nor the evidence of record warrants application of the presumption of soundness to the Veteran's schizoaffective disorder or PTSD. (The Board notes parenthetically that although the VHA specialist likewise found that the Veteran's personality disorder had its "first signs...manifested early in his military career," and thus not preexisting service, that disorder is not subject to service connection under the circumstances of this case, so further discussion is unwarranted. 38 C.F.R. § 3.303(c)). The Board finds that the preponderance of the evidence shows that the Veteran's reports of in-service incidents lack credibility; his contemporaneous service treatment records show that he had no complaints, diagnosis, or treatment of any acquired psychiatric disorder during service or at separation; he was not diagnosed with a psychiatric disorder until many years after service; and there is no competent and credible nexus linking any acquired psychiatric disability potentially subject to service connection, to his service. Therefore, the Board finds that service connection is not warranted for an acquired psychiatric disorder. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 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). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs