Citation Nr: 1606771 Decision Date: 02/23/16 Archive Date: 03/01/16 DOCKET NO. 11-01 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July to November 1977 and from October 1978 to January 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012, the Veteran testified during a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was remanded in March 2014, January 2015, and August 2015 for further development. FINDING OF FACT The Veteran's current acquired psychiatric disorders, which are adjustment disorder and depressive disorder NOS, were not manifest in service and are unrelated to service. CONCLUSION OF LAW The criteria for service connection for a chronic acquired psychiatric disorder to include PTSD are not met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Adequate notice was provided in September 2009. VA has obtained all available treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran the opportunity to give testimony before the Board. No further development of evidence is necessary. Exhaustive attempts to obtain all available service treatment records were made. Furthermore, the Veteran has not provided enough information to perform meaningful research on his claimed in-service stressors, despite multiple requests for the same. Additionally, it was previously thought that the Veteran had undergone psychological testing at a VA facility prior to an attempted July 2014 VA examination, and attempts were made to obtain these records and then examine him. However, in September 2015, the RO indicated that there are no outstanding VA medical records in reference to results of psychological testing conducted prior to the Veteran's scheduled July 2014 VA examination. The RO reported that a July 2014 note indicates that the Veteran arrived on time for a testing appointment but did not return to the clinic for his compensation and pension interview. He was paged overhead and his cell phone was called, and he did not respond. The Veteran failed to report to a VA examination scheduled in September 2015 and provided no cause for doing so. No further attempts to provide the Veteran with a VA examination are necessary. All known and available records relevant to the issue being decided on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. 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); 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). 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). The Board notes that it appears that not all of the Veteran's service treatment records are of record. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The following analysis has been undertaken with this heightened duty in mind. Available service treatment records are silent for reference to psychiatric problems, and the Veteran has not testified to having any relevant treatment in service. On a Report of Medical History completed in March 1977, the Veteran answered "no" to having nervous trouble. No pertinent defects, diagnoses or history were noted. On service entrance examination for the his second period of active service, in October 1978, the Veteran denied having or having had psychiatric symptomatology, and his psychiatric evaluation was normal. On service discharge examination in December 1979, the Veteran was again clinically normal psychiatrically. Psychiatric problems are first shown in medical records many years post-service. There was a negative post-service PTSD screen in October 2009. At that time, the Veteran's active problems were listed as heroin dependence in remission; other and unspecified alcohol dependence in remission; lack of housing; and unemployment. He also lacked support and was new to the area. He reported a 14-year sobriety from heroin and alcohol at that time. He reported that he had previously owned a vendor business in a large city, and that he had been unable to sustain it for the last few years and eventually gave it up. He had been on a lease in an apartment in that city, but had to leave due to no longer being able to afford rent. He reported some mild depression/anxiety symptoms due to the situation. He was felt to have an adjustment disorder with depressive/anxiety features. He reported no other history of mental health issues, and had received no mental health services through VA. In November 2011, depression NOS was diagnosed. There have been no PTSD diagnoses. Based on the evidence, the Board concludes that service connection is not warranted for the Veteran's acquired psychiatric disorders, which have been diagnosed as adjustment disorder and depressive disorder NOS. The preponderance of the evidence indicates that these were not manifest in service or for years post-service and are unrelated to any incident of service. At the time of the Veteran's initial VA treatment in October 2009, he reported no other history of mental issues, other than those he had then. Additionally, none were shown in service, and he denied pertinent symptomatology in March 1977 prior to service and on service entrance examination in October 1978. Psychiatric evaluations were normal in October 1978 and on service discharge examination in December 1979. Service connection cannot be granted for PTSD because the Veteran has not been diagnosed with it as required. Even if there were a diagnosis, there is no credibly supported stressor. While the Veteran has indicated that he witnessed deaths in service, there is no credible evidence to show this, and there is no competent medical evidence of record indicating that if he did, that it caused his current psychiatric disorders. While he testified in April 2012 that doctors had told him that his psychiatric conditions are related to service, there is no indication in any of his medical records that they have done so, and his original psychiatric treatment records from October 2009 show psychiatric symptoms due to his then current situation which included unemployment and housing issues. He testified in April 2012 that he wound up being an addict/IV drug user in 1979. However, even if this is true, the preponderance of the evidence is against a finding that he had an acquired psychiatric disorder in or as a result of service to cause it, and the provisions of 38 U.S.C.A. § 1131 indicate that no compensation shall be paid if a disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. The only other evidence in the record concerning the etiology of the Veteran's psychiatric disorders is the Veteran's own statements. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the diagnosis of a psychiatric disability, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). The case was previously remanded to afford the Veteran a medical examination and obtain an opinion as to the etiology of any diagnosed psychiatric disability; however, he failed to report to the examination. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). The preponderance of the evidence is against the claim and there is no doubt to be resolved. Service connection is not warranted. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs