Citation Nr: 1604239 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 09-33 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for alcohol dependence, to include as due to an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from January 2001 to October 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In July 2012, the Veteran testified before a Veterans Law Judge at a Board videoconference hearing; a transcript of the hearing is of record. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that an appellant does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for PTSD and bipolar disorder specifically, the Board notes that the Veteran has been diagnosed with and has sought treatment in the past for other acquired psychiatric disorders. The Board thus finds that, pursuant to Clemons, the Veteran's claim is more accurately characterized as one for any acquired psychiatric disorder. Id. The claims considered herein were remanded in September 2012 and October 2014. The required development has been completed and the case has been returned to the Board for further appellate review. Stegall v. West, 11 Vet. App. 268 (1998) (the U.S. Court of Appeals for Veterans Claims vacated and remanded a Board's decision because it failed to ensure that the RO achieved full compliance with specific instructions in a Board remand). FINDINGS OF FACT 1. The preponderance of the evidence fails to establish that the Veteran suffers from PTSD as a result of a verified or corroborated stressor which occurred during service. 2. An acquired psychiatric disorder was not shown in service or during the year thereafter, and there is no competent and probative opinion suggesting a link between a psychiatric disorder and service or any incident of service. 3. The Veteran's claimed alcoholism is the result of his own willful misconduct or alcohol abuse; service connection is in effect only for tinnitus. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for an acquired psychiatric disorder including PTSD are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2015). 2. Service connection for primary alcoholism or for alcoholism as secondary to a service-connected disability is precluded as a matter of law. 38 U.S.C.A. §§ 105(a), 1110 (West 2014); 38 C.F.R. §§ 3.1(m), 3.301, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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) (2015). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters in December 2007, March 2008, March 2012 and October 2012 that fully addressed all notice elements. The letters provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letters informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal; however, fully compliant notice was later issued in an October 2012 communication, and the claim was thereafter readjudicated, most recently, in September 2015. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him 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 necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The AOJ has attempted to corroborate the Veteran's stressor, contacting such agencies as the Department of the Navy, the Naval History and Heritage Command, obtaining Deck Logs, and the Naval Criminal Investigative Service, with no information obtained which matches the Veteran's claims concerning his in-service stressor. In any case, there is no prejudice to the Veteran in this case as the VA examiner accepted the Veteran's stressor as fact in his consideration of the claim for PTSD. The Veteran's statements in support of the claim are of record, including testimony provided at his July 2012 hearing. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. The Veteran was afforded the opportunity to testify before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge, noted the elements that were lacking to substantiate the service connection claims on appeal. In addition, the Veteran demonstrated actual knowledge of this information. The Veteran specifically addressed evidence in support of his claims, indicating an understanding of requirements to establish service connection. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.) Additionally, the presiding Veterans Law Judge noted the issues on appeal and provided a basic explanation of them. Accordingly, the Veteran is not shown to be prejudiced on this basis. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Psychiatric Disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and manifests a psychosis to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms 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 a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, 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). If the evidence establishes that a 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)(2). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran asserts that his current psychiatric disorders were incurred in service. Specific to PTSD, he alleges this condition is due to a personal assault. During the Board hearing, he testified that he was assaulted by three African-American sailors at a pier in Italy in May 2004. He said that he was bruised and received counseling from a priest. He also said that the individuals involved were brought before a Captain's Mast and one individual was charged. After the incident, he said he felt threatened and was very nervous. He said he has continued to feel very anxious around African-Americans. The Veteran also alleges that he had anger outbursts and other symptoms during military service that were the early manifestations of a psychiatric disorder. In March 2002, service treatment records indicate that the Veteran had a physical altercation with police while he was intoxicated. He had facial abrasions and neck pain. The Board also notes that on May 2003 and August 2005 Post-Deployment Health Assessments, the Veteran indicated that he had little interest or pleasure in doing things, but denied feeling down or depressed and denied having suicidal ideation. The August 2005 separation examination indicates that the Veteran denied problems with sleep, depression or excessive worry or nervous trouble of any sort. During an August 2007 private psychiatric consultation, the Veteran reported that he had head injuries on at least five occasions and loss of consciousness due to substance abuse on at least two occasions. The Veteran reported a history of polysubstance abuse, including alcohol, methamphetamines, mushrooms, ecstasy, marijuana, cocaine, pain pills, benzodiazepines, nicotine, caffeine, and over-the-counter substances. He also reported a history of assault, as both the victim and perpetrator. It was noted that he had been arrested four times for assaultive behaviors. It was also noted that he had a head scar and had sustained a head injury from a fall. The record reflects diagnoses of bipolar disorder and PTSD or adjustment disorder by a private psychiatric clinical nurse specialist in October 2007. Vet Center records from October 2007 indicate a mood disorder, probably bipolar disorder; noting significant childhood stressors identified as being physically abused by a step-father and being sexually abused by older children; further indicating that he had counseling in childhood. The Veteran also reported fighting with military police, brandishing a knife, and that he had lost interest in leisure activities during the previous two years. He also indicated that his mother was bipolar and had schizoaffective disorder. VA treatment records reflect a diagnosis of bipolar disorder with a note to rule out intermittent explosive disorder. A July 2008 VA treatment note indicates a negative PTSD screen, with the Veteran denying PTSD symptoms to include nightmares or reexperiencing a frightening event; being constantly on guard, watchful or easily startled; or feeling numb or detached. In a July 2008 psychiatric intake, the Veteran reported that he had bipolar disorder which began while he was in the military; he would get very angry and hit his head on things and he was arrested three times for assault. VA outpatient treatment records reflect that the Veteran had a positive screen for traumatic brain injury (TBI) in August 2008. During that evaluation, he described having gone through a "head butting phase" where he would hit his head against objects and other people. It was noted that he had headaches, but the findings were not consistent with TBI. An October 2008 VA evaluation indicates that the Veteran became alcohol dependent while in the Navy. He got into several fights with black sailors who he said were angry with whites and did the underground controlling. The Veteran also indicated that there was jealousy towards him because he was athletic and physically fit and the others were not. The Veteran agreed with his diagnosis of bipolar disorder. Objective testing did not indicate that the Veteran had suffered a debilitating brain injury. In 2012, the Board remanded for a VA psychiatric examination. A sufficient December 2012 VA examination thoroughly evaluated the Veteran's psychiatric claims. The examiner, Chief of Psychology at a VA Medical Center, declined to diagnose the Veteran with PTSD and did not find a relationship between service and any acquired psychiatric disorder. He noted that the Veteran's bipolar disorder was diagnosed in 2008 and there was no indication of such disorder during service. The examiner also diagnosed the Veteran with obsessive compulsive disorder and indicated that there is no indication that the symptomatology began in service. The examiner noted that the Veteran's substance abuse disorder began in service and caused his anger problems. The examiner also noted that the Veteran provided a significantly different history than was reported in the Veteran's interview with a private nurse practitioner when the Veteran reported numerous non-military stressors, including the death of his paranoid schizophrenic mother by suicide and sexual and physical abuse as a child. The Veteran also reported he had no problems with substance abuse prior to service; however, a waiver for entry indicates that the Veteran had used marijuana prior to service. The Veteran reported stressors of the altercation with black sailors as recounted previously and introducing a fellow sailor to Lithium who eventually was killed in a motor vehicle accident; the examiner indicated that neither of the reported stressors supported a diagnosis of PTSD as they were not "extreme trauma" and the Veteran, further, did not report re-experiencing the events, a requisite for a PTSD diagnosis. The examiner also noted that in the Veteran's service personnel records, prior to the assault, his marks were noted as "progressing," in 2005, post-claimed assault, the Veteran was noted as "met standards." Thus, any behavior changes were noted prior to the alleged stressor. The examiner also reiterated that the only medical indication of PTSD recounted the Veteran's childhood traumatic experiences but not the claimed in-service events. The Appeals Management Center (AMC) requested an opinion from a physician employed at the AMC. The Board observes that this physician is apparently not a trained psychologist or psychiatrist and therefore not competent to opine on a claim for service connection for a psychiatric disorder. The Board additionally observes that, after indicating that the Veteran's acquired psychiatric disability is not related to active service, the physician indicated the Veteran should receive TBI evaluation to "clarify severity of head injury, if any, associated with injury while on active duty from striking head on bottom of lake in 2001" as the physician stated that some medical literature indicates a link between a TBI and bipolar disorder. The Board notes that the Veteran reported he hit his forehead in the sand when jumping into a lake head first in August 2001, which is apparently the possible TBI the AMC physician referred to. The Veteran was afforded an additional VA examination in June 2015 with a subsequent addendum attached to the 2012 VA examination; the examiner reiterated portions of the evidence in the claims file to include statements from the Veteran's father indicating the Veteran had anger problems at discharge from the Navy. The examiner indicated that the Veteran's bipolar disorder went back to 2007-08 and the Veteran was originally diagnosed with obsessive-compulsive disorder at his 2012 VA examination. The examiner reiterated his views from the 2012 VA examination as there were no "behavioral markers" prior to the alleged 2004 assault. The examiner went on to indicate that the point is moot as he thoroughly believed the Veteran's stressor statement that, indeed, the in-service assault occurred; however, the examiner indicated that, again, it was his view that the event did not meet the PTSD criteria A of a traumatic event. The examiner also indicated that the Veteran's other acquired psychiatric disabilities have no relationship to service; as indications are that he had treatment for substance abuse and anger management but without psychiatric counseling during service. The Veteran was also afforded a TBI examination. The examiner reiterated that the Veteran reported various head injuries to include head butting for at least six months' duration due to anger problems and hitting his head on a garbage can while drunk; as well as the documented in-service hitting his head on the sandy bottom of a lake. The examiner observed that the service treatment record detailing the injury indicated a neck injury with no head injuries. The examiner declined to diagnose the Veteran with a TBI as there were no apparent symptoms of such and insufficient clinical evidence to make such a diagnosis. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a finding that the Veteran suffers from PTSD, or any other psychiatric disability, as a result of a verified or corroborated stressor occurring during military service or any incident of service. Firstly, there is no indication that the Veteran has been diagnosed with PTSD related to an in-service stressor during the relevant period, even when conceding the in-service event has actually occurring. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). To summarize, the evidence of record contains no competent and probative evidence of in-service injury or disease, and the Veteran's claim for service connection for a psychiatric disability fails on that basis. Furthermore, the lack of credible evidence of an in-service injury or psychiatric complaints combined with a lack of credible evidence of psychiatric symptoms or treatment for two to three years after service weighs against a finding that any current psychiatric disability was initially manifested during service and has continued since service. The Board additionally notes that there is also no indication that the Veteran had any psychosis which manifested within one year of service. The Board is compelled to find the most probative evidence of record to be the VA examination from 2012 with the 2015 addendum. The examiner conclusively indicated that the Veteran does not meet the diagnostic criteria for PTSD based on his in-service stressors and any acquired psychiatric disorder is not related to service or any incident of service, with a thorough rationale, review of the claims file and with consideration of the Veteran's contentions. Therefore, the Veteran has not shown any in-service event, disease, or injury resulting in a disability that would be the precursor to establish service connection. The Veteran's claim for service connection for a psychiatric disability, to include PTSD, bipolar disorder or obsessive-compulsive disorder, therefore fails on that basis. The Board notes that the Veteran, though entirely competent to report his symptoms both current and past, is not competent to opine on matters such as the etiology of his current psychiatric problems and further to delineate such problems from his in-service substance abuse. Such opinion requires specific medical training in the field of psychiatric medicine and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training in the field of psychiatric medicine to render medical opinions, the Board must find that his contention with regard to a nexus between his acquired psychiatric problems and military service to be of no probative value. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claims are not competent evidence of a nexus. The Board acknowledges that VA is required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of any outstanding issue. However, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Alcoholism Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 U.S.C.A. §§ 105(a), 1110 (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(a) (2015). The Veteran's claim for direct service connection for alcohol abuse must be denied. The law very clearly states that service connection cannot be established on a direct basis for a disease or injury that results from a claimant's abuse of alcohol or drugs if, as here, the claim was filed after October 31, 1990. 38 C.F.R. §§ 3.1(m), 3.301(a). Moreover, when, as here, the law is dispositive of the claim, it should be denied because of lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the law and not the evidence is dispositive of the claim, the claim should be denied because of lack of entitlement under the law). As to the Veteran's claim of service connection for alcoholism as secondary to PTSD or another acquired psychiatric disorder, the Board observes that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board further notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310 and compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, service connection is not in effect for any psychiatric disability and the Veteran's only service-connected disability is tinnitus. Hence, as a matter of law, service connection for alcoholism as secondary to a service-connected disability is without legal merit, and must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. Entitlement to service connection for alcohol dependence is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs