Citation Nr: 1607326 Decision Date: 02/25/16 Archive Date: 03/04/16 DOCKET NO. 08-05 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, paranoid type, and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his brother ATTORNEY FOR THE BOARD Anthony Flamini, Counsel INTRODUCTION The Veteran had active service from August 1977 to August 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2007 and August 2007 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee. The Veteran requested and was afforded a Travel Board hearing before the undersigned at the RO in Nashville, Tennessee, in July 2009. A written transcript of that hearing has been associated with the claims file. FINDING OF FACT The Veteran's acquired psychiatric disability, diagnosed as schizophrenia and major depressive disorder, did not begin during service, nor is it related to military service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability, to include schizophrenia and major depressive disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA correspondence issued in January 2007 satisfied the duty to notify provisions with respect to service connection and notified the Veteran of the regulations pertinent to the establishment of an effective date and disability rating. In addition, the duty to assist the Veteran has been satisfied in this case. The Veteran's service treatment records as well as his VA treatment records and private medical treatment records have been associated with the claims file. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Further, the issue decided herein has been the subject of numerous VA examinations and Veterans Health Administration (VHA) opinions over the years. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As described in additional detail below, the Board finds that the most recent VHA opinion obtained in August 2015 is adequate to decide this issue because the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the report set forth detailed nexus opinions, with adequate bases for the opinions and conclusions reached. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran also testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (VLJ) in July 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2015) requires that the Veterans Law Judge who conducts 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. During the Veteran's July 2009 Board hearing, the Veteran was assisted by an accredited representative from Disabled American Veterans. The representative and the Acting VLJ asked questions to ascertain the onset of the Veteran's psychiatric symptomatology, and any relationship between his symptomatology and his period of active duty service. The hearing focused on the evidence necessary to substantiate the Veteran's claim for service connection. Following the Veteran's testimony, the case was remanded so that Social Security Administration (SSA) records and other private medical records could be obtained. Otherwise, no pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Therefore, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In this case, the Veteran has claimed that he has a current diagnosis of an acquired psychiatric disorder, to include schizophrenia, paranoid type, as well as major depressive disorder, and that this diagnosis is attributable to his period of active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a) (2015). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Here, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of an acquired psychiatric disorder, to include schizophrenia or depression. The Veteran elected not to undergo a separation examination in June 1980. The Board acknowledges the Veteran's testimony that he began having suicidal thoughts and hearing voices during his military service. The Veteran conceded that he did not seek psychiatric care during his military service due to embarrassment and fear of a dishonorable discharge. However, the Veteran has contended that he sought treatment for headaches during service as a way of reaching out for some kind of help, and that he began using marijuana and cocaine as a means of dealing with the voices. The Veteran's service records confirm that he sought treatment for headaches on numerous occasions and that he received Article 15 non-judicial punishments for drug use. Following service, a March 1983 VA treatment note diagnosed the Veteran as having mixed substance abuse and depression. This treatment note indicated that the Veteran attempted suicide in November 1981 by slashing his wrists and now had residual right median nerve damage. A July 1984 VA treatment note also indicated that the Veteran had attempted suicide in the past. A November 2001 VA outpatient treatment report noted that the Veteran presented with a long history of maladjustment beginning, per the Veteran's history, in childhood. The Veteran reported continuous drug use since his military service, and reported that his alleged suicide attempts had been associated with the use of cocaine. It was further noted that the Veteran's performance on psychological testing was suggestive of over-endorsement of psychological problems, making it difficult to ascertain the veracity of his claims, with secondary gain as a possibility. The Veteran was hospitalized in February 2002. On admission, it was noted that he was hearing voices that told him to cut his wrist and wrap a telephone cord around his neck. The Veteran insisted upon hospitalization, and he presented with a history of paranoid schizophrenia. It was noted that the Veteran had a prior admission in the 1980s following a suicide attempt. The Veteran was again hospitalized in February 2003 with similar symptomatology. The Veteran reported hearing voices, as well as suicidal ideation, per a February 2002 VA medical report. In August 2006, the Veteran reported a history of a past suicide attempt in 1980, as well as three VA hospitalizations due to a substance abuse induced mood disorder and major depressive disorder. The Veteran stated that, during service, the military was controlling his thoughts and was following him. He further noted that he was hearing voices which were derogatory in nature, crying spells, and saying things to himself such as "I'm not going to do it, you can't make me." At that time, he was diagnosed with schizophrenia, paranoid type, with depressive features. An October 2003 private report noted that the Veteran's psychiatric illness was of late onset. The Veteran reported that his illness started after the death of his wife three years prior. Auditory hallucinations were first noted, followed by paranoid thoughts, depressive symptoms, low energy, poor sleep and concentration, and hearing voices encouraging the Veteran to harm himself and others. At that time, it was noted that the Veteran was a crack cocaine user, but had been off the drug for two years. A 3-to-5-year history of schizophrenia was recorded. His mood was depressed and irritable, his thought process logical, though the content was paranoid, he was oriented to person, place, and time, and judgment and insight were good. Depressive symptoms were noted in addition to other schizophrenia symptoms. However, during the Travel Board hearing held in July 2009, the Veteran testified that he started hearing voices when he returned from overseas during active duty. He stated that he left Korea in 1979, and that he started hearing voices shortly thereafter. At that time, he reported having racing thoughts, emotional highs and lows, crying spells, and paranoia. He noted that he was paranoid about his sergeants listening to and following him. He also noted suicidal thoughts. He thought he was homesick at first. When he returned home, however, he started hearing voices commanding him to hurt other people and himself. He testified that, on one occasion, he knocked on a door and, when a man opened the door, the Veteran lunged at him, choked him and struck him, because the voices told him to do so. He noted that he received an Article 15 non-judicial punishment and was held at the U.S. Army Retaining Brigade. The Veteran stated that he did not share the cause of the incident with his lieutenant commander, as he did not want a dishonorable discharge. A VA examination was provided in December 2009. The examiner noted that several service treatment records noted reports of headaches. It was further noted that the Veteran was not treated for an in-service mental disorder. The examiner summarized a psychiatry attending note, dated November 5, 2009, indicating that the Veteran was inquiring as to service-connected disabilities, and then began to discuss schizophrenic-related symptoms, such as hearing voices in his head while he was in the military. Per the Veteran, at the time he attributed the experience to homesickness, with symptoms worsening after separation. The Veteran then turned to drugs to "medicate the experience." He stated that he was afraid to disclose these experiences while in the military. The Veteran asserted that he started "feeling down" in 1979, and that the onset of his mental disorder occurred in 1979. On examination, the Veteran complained of hearing voices, sleep problems, and mild paranoia. A history of suicide attempts (twice, the most recent in 2005) was noted. The Veteran stated that auditory hallucinations were persistent. Ultimately, the Veteran was diagnosed as having chronic paranoid schizophrenia; however, a wholly separate diagnosis of major depressive disorder was not confirmed. As to the opinion, while the examiner noted that the Veteran's service treatment records did not offer support for the presence of a psychiatric disorder during service, the Veteran's verbal report was given due consideration and "examined more closely." The examiner pointed out that the Veteran reported onset in 1979, at age 19 or 20, and that the onset of schizophrenia typically occurs between the late teens and mid-30s. It was also noted that for men, the onset of the first psychotic episode is in the early to mid-20s. The examiner stated that the Veteran's report of crying spells and depression was consistent with this information, and noted that the Veteran was reluctant to report his hallucinations. The examiner stated that she could not say that there was written evidence that the schizophrenia began in service, but she also could not say that the symptoms did not begin in service, due to the Veteran's report. As such, there was no way to be certain, and therefore the examiner opined that it was at least as likely as not that the Veteran's disorder was related to service. The examiner went on to assert that excessive and continuous use of alcohol and other substances is often and most likely an attempt at self-medicating painful and unresolved emotions and/or psychiatric symptoms, and that it was most likely that the Veteran's in-service drug use was an early manifestation of a psychiatric disorder. Finally, the examiner stated that it was not likely that the Veteran could have correctly invented prodromal symptoms, or an onset consistent with the DSM-IV criteria. An additional medical opinion, dated November 10, 2010, noted that the Veteran had been a patient in the mental hygiene clinic for more than 10 years. On review of his medical record and self report, it was the opinion of the provider that the Veteran began to have prodromal symptoms of schizophrenia dating back to 1979, which was consistent with medical facts which indicate that males generally start with first symptoms in their early 20s. The Board obtained a Veterans Health Administration (VHA) opinion in August 2011. In that opinion, the psychiatrist indicated that the first mention of psychiatric symptomology occurred in February 2002. The psychiatrist went on to opine that it was not as least as likely as not that the Veteran's schizophrenia and major depressive disorder were incurred during his period of active duty military service from August 1977 to August 1980. She concluded that his schizophrenia was in no way related to his period of active duty, and based this conclusion on the Veteran's own report that his depression did not begin until 1989. However, the August 2011 VHA opinion did not acknowledge the Veteran's 1983 VA treatment notes which diagnosed depression and which indicated that the Veteran had attempted suicide by slashing his wrists in 1981, approximately one year after his discharge from active duty service. Moreover, correspondence received from the Veteran since the August 2011 VHA opinion vehemently denied that he reported the onset of his depression to be in 1989; rather, the Veteran indicated that he began experiencing suicidal thoughts during service in 1978. Several members of the Veteran's family, including his mother and sisters, submitted correspondence indicating that they observed a transformation in the Veteran's psychiatric symptomatology since his discharge from service. As such, in September 2014, the Board found that further medical opinion was necessary. Specifically, the examiner was asked to opine as to whether it was at least as likely as not that any current mental disorder, to include schizophrenia and/or major depressive disorder, was incurred during the Veteran's period of active military service or was otherwise related to his period of active service. In responding to this inquiry, the examiner was requested to comment on whether in-service drug and alcohol abuse was a manifestation of the current psychiatric disorder. Pursuant to the Board's request, another VHA opinion was obtained in November 2014. The examiner opined that it was not at least as likely as not that the Veteran's current mental disorder, to include schizophrenia and/or major depressive disorder, was incurred during his period of active military service, and that the Veteran's schizophrenia or major depressive disorder was not otherwise related to his period of active service. However, the examiner additionally indicated that, "It would not be possible to make conclusion that the veteran's in service drug and alcohol use was a manifestation of a current psychiatric disorder without resorting to mere speculation." As there was no explanation as to why the examiner was unable to provide this opinion without resorting to mere speculation, the Board found that it was necessary to obtain another VHA opinion. The most recent VHA opinion pertaining to the Veteran was obtained in August 2015. Following a comprehensive review and summation of the entire record, the August 2015 examiner opined that it was not at least as likely as not that the Veteran's current schizophrenia and/or major depressive disorder was incurred during the Veteran's period of active duty service. The examiner explained that the Veteran's schizophrenia and major depressive disorder were not related to his time in service, and indicated that the Veteran's in-service drug and alcohol abuse were not manifestations of his current schizophrenia and major depressive disorder. Rather, the examiner emphasized that the Veteran's medical records clearly and consistently documented a marked substance abuse disorder, beginning with his hospitalization between February 1983 and March 1983. The examiner reiterated that during this prolonged 1983 admission, the discharge summary did not mention psychotic symptoms or continued depressive symptoms. Rather, the examiner opined that the Veteran's depressive symptoms developed secondary to his drug abuse, which was consistent with the depressive symptoms resolving completely without medications by the time of the Veteran's 1983 discharge. The examiner indicated that she did not see medical treatment records documenting mental health treatment of psychiatric symptoms until 2001, and noted that the Veteran's August 2006 psychiatric admission was the first description consistent with the Veteran's showing symptoms of schizophrenia or schizoaffective disorder, which was after he reported being clean and sober for 2 years. The Board notes that the claims file contains differing opinions as to whether the Veteran's diagnosed schizophrenia and major depressive disorder are related to or manifested in service. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). Thus, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See Colvin v. Derwinski, 1 Vet. App 171 (1991). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Here, there are legitimate reasons for affording the unfavorable medical nexus opinions of the August 2015 VHA letter, that the Veteran's schizophrenia and major depressive disorder are not related to service, greater probative weight than the other opinions of record. The Board finds the August 2015 VHA opinion to be of high probative value. Specifically, the examiner reviewed the entire claims file and performed a comprehensive recitation of the Veteran's entire medical history. There is no indication that the August 2015 examiner was not fully aware of the Veteran's past psychological history or that she misstated any relevant fact. Moreover, the examiner was a behavioral health specialist, and had the requisite medical expertise to render a medical opinion regarding the etiology of the disorders and as well as sufficient facts and data on which to base the conclusions. The August 2015 VHA opinion contained reasons and bases supporting the examiner's opinions, which cited to and were supported by the Veteran's own medical treatment records and unique medical history. Therefore, the Board finds the August 2015 VHA opinion to be of great probative value. However, the Board finds the December 2009 and November 2010 medical opinions to be of significantly less probative value. Whereas the August 2015 VHA opinion cited to the Veteran's specific treatment records in support of its negative nexus conclusions, the December 2009 examiner conceded that "she could not say that there was written evidence that the schizophrenia began in service." Rather, she based her positive nexus opinion purely on the Veteran's self report of medical history as well as data about the typical age for onset of schizophrenia in men in the general population. The Court has held that "[g]enerally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise 'is too general and inconclusive'". Mattern v. West, 12 Vet. App. 222, 228 (1999) (citing Sacks v. West, 11 Vet. App. 314, 317 (1998)). Similarly, the November 2010 medical opinion also based its conclusion on the Veteran's self report as well as medical facts which indicated that males generally started with first symptoms of schizophrenia in their early 20s. In doing so, without explanation, the December 2009 and November 2010 opinions contradicted the October 2003 private report which determined that the Veteran's psychiatric illness was of late onset (following the death of his wife only three years prior), instead endorsing an earlier date of onset merely because such a date was typical for men in the general population. As such, the Board affords these medical opinions little probative value. The Board also affords the August 2011 VHA opinion little probative value because, as indicated above, it failed to acknowledge the Veteran's 1983 VA treatment notes which diagnosed depression and which indicated that the Veteran had attempted suicide by slashing his wrists in 1981. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995) (stating if medical opinion of record was based on incomplete records, it is of limited probative value); Reonal v. Brown, 5 Vet. App. 458 (1993) (holding that an opinion based upon an inaccurate factual premise had no probative value). Likewise, the Board finds the November 2014 VHA opinion to be of limited probative value, as the examiner indicated that it was not possible to render a conclusion that the Veteran's in-service drug and alcohol use were manifestations of his current psychiatric disorder without resorting to mere speculation. Where an examiner finds that he or she cannot provide an opinion without resorting to speculation, then "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion." Jones v. Shinseki, 23 Vet. App. 382 (2010). In summation, the only clinical opinion which the Board affords significant probative value is the August 2015 VHA opinion. The Board has also considered the lay assertions of the Veteran and his family members that his current psychiatric symptomatology is related to service. It is well established that lay statements are competent evidence with respect to some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, lay evidence is competent with regard to identification of a disease with 'unique and readily identifiable features' which are 'capable of lay observation.' See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); see 38 C.F.R. § 3.159(a)(2). While the Veteran's relatives are competent to report what they observed, they are not competent to provide evidence as to more complex medical questions, such as whether the behavior they observed in the Veteran following his separation from service was due to an acquired psychiatric disorder or rather due to substance abuse. While the Veteran is competent to describe his symptoms, determining the etiology of disorders such as schizophrenia and major depressive disorder is not the equivalent of relating a broken bone to a distinct injury. The determination as to the etiology of schizophrenia and major depressive disorder requires medical knowledge which the Veteran has not demonstrated he possesses. In addition, the Board finds the Veteran to be a poor historian. Past examinations have been suggestive of over-endorsement of psychological problems, and the Veteran has ascribed several vastly different dates to the onset of his psychiatric symptomatology over the years (i.e., during childhood, in service, following the death of his wife, etc.). The Board therefore finds that the element of nexus (a relationship between an active duty injury or disease and a current psychiatric disorder) or any continuity of symptomatology since service have not established by an approximate balance of the evidence. Accordingly, the Board concludes that service connection for a an acquired psychiatric disorder is not warranted. In reaching this conclusion, 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include schizophrenia, paranoid type, and major depressive disorder, is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs