Citation Nr: 1609586 Decision Date: 03/09/16 Archive Date: 03/15/16 DOCKET NO. 13-19 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The appellant had active service from July 23, 1984, to August 15, 1984. This appeal is before the Board of Veterans' Appeals (Board) from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In pertinent part, this rating decision denied service connection for schizophrenia. A subsequently-issued Statement of the Case (SOC), dated in April 2013, characterized the issue as entitlement to service connection for "schizophrenia or another acquired mental condition." The scope of a mental health disability claim includes any mental disorder reasonably encompassed by the claimant's description of the claim, reported symptoms, and the other information of the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the Veteran did not appeal the June 2009 rating decision that denied service connection for PTSD, that decision is final, and the issue currently on appeal is one for service connection for a psychiatric disorder other than PTSD. As part of his VA Form 9, dated in June 2013, the appellant requested to be afforded a hearing before a Veterans Law Judge in Washington, DC. He was notified by letter of the date on which the hearing was scheduled (May 28, 2015), but he did not appear for the hearing. As the appellant is not shown to have sought to have his hearing rescheduled, his hearing request is deemed withdrawn. In June 2015, the Board remanded this matter to afford the Veteran's appointed representative the opportunity to submit written argument. In October 2015, the Veteran's representative submitted a VA Form 646. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. FINDINGS OF FACT 1. The appellant served on active duty for a period of less than 90 days. 2. The appellant was diagnosed with a personality disorder during service, which is not a disability for VA compensation benefits. 3. The appellant experienced no superimposed injury on his personality disorder during service. 4. An acquired psychiatric disorder was not manifest during active service, a psychosis was not manifest within one year of discharge from active service, and the probative evidence of record weighs against a finding that any psychiatric disability was incurred in or aggravated by the appellant's active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, other than PTSD, are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in September 2009, October 2012, July 2014, and September 2015. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent December 2015 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. In this regard, in October 2012, the RO issued a formal finding on the unavailability of Naval Medical Center records for the period of August 1984. The Veteran was notified in an October 2012 letter and informed that all efforts to obtain them have been exhausted and further attempts would be futile. He was requested to furnish copies of medical records from August 1984 that he had in his possession. In a November 2012 letter, he advised the VA that he did not have them. The appellant has not referred to any additional, unobtained, relevant, available evidence. Further, VA has obtained an examination with respect to the claim on appeal. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). That decision requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2015). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases (e.g., a psychosis) become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101 , 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In this case, as the appellant served less than ninety days of active service, he is not entitled to any presumptions for chronic disabilities listed in 38 C.F.R. § 3.309(a). Service records include a recommendation for administrative discharge noting that the appellant was evaluated by a psychologist and did not exhibit any characteristic of mental or emotional illness. It was found that on entry level performance and conduct the appellant failed to adapt. It was believed that he would become an administrative and disciplinary burden to any command or unit if retained on active duty. Comments noted the appellant claimed to hear voice of God. He related magical thinking involving dreaming about something and the event happening the next day, social anxiety, and expressed suicidal ideation. Mental health impression was an adjustment disorder with atypical features as well as a schizotypal personality disorder. Entry level separation was recommended and approved on August 15, 1984. An April 1985 neurology evaluation report states "patient claims that he is always nervous and hyperactive. He was given Mellaril for two years when he was in the fourth and fifth grades for hyperactiveness." An October 1993 University of Texas medical record notes that the appellant gave a history of chronic depression. A November 1995 private medical record notes that the appellant's chief complaint was chemical dependency (crack cocaine). A January 1998 Trinity Springs Pavilion record reflects that the appellant was assessed with an adjustment disorder with mixed disturbance of emotions and conduct; active cocaine dependence; and borderline personality disorder. A November 2002 UTMB managed care mental health services record reflects that the appellant has received mental health services inconsistently for depression and stress related issues during his past five years of incarceration. In November 2002, he reported irritability related to job stress and environmental stressors. He exhibited no signs or symptoms of serious psychological distress or disorder. Provisional diagnostic impression, Axis I and II was noted as "none." An April 2003 record notes that the appellant gave a history of personality disorder. A June 2004 record notes that the appellant was stressed over health problems. A November 2008 record notes that the provisional diagnostic impression, Axis I and II, was "no diagnosis." An October 2003 University of Texas medical record noted that the appellant had quit crack cocaine nine years earlier. The assessment was depression. The appellant was not on any medications at that time. An August 2007 VA mental health note reflects that the appellant's psychiatric diagnosis was drug abuse/dependency. In his August 2009 claim for VA benefits, the appellant asserted that he developed schizophrenia while on active duty. In a November 2012 VA form 21-4138, the appellant stated that the shock and trauma of being constantly yelled at and forcing him to extreme physical limits caused his "digestive system" to shut down. In a VA form 21-4142, dated in November 2012, the appellant asserted that, since his release from basic training in 1984, he has suffered with personality disorders as well as suicidal attempts due to stress and digestive problems. An April 2013 VA mental disorders examination report reflects that the appellant was diagnosed with depressive disorder, not otherwise specified (NOS), that appeared to be secondary to situational stressors including incarceration and health problems, cocaine/crack dependence in full sustained remission, and rule out personality disorder such as antisocial, borderline traits. The examiner stated that there was no evidence of a mental health disorder related to appellant's military service. His current depressive symptoms are mild and appear to be related to frustration with his current incarceration and current health problems. The appellant was diagnosed with an Adjustment Disorder and Schizotypal Personality Disorder during his military service. There was no evidence of schizophrenia or other psychotic disorder per current examination, and there was no evidence of previous schizotypal traits contributing to a current Axis I Disorder. There was no clear evidence of a personality disorder during the interview, although the appellant's legal and behavioral history suggests some antisocial and borderline traits (e.g., fighting, assault, multiple arrests/incarcerations, multiple suicide attempts, substance abuse, poor relationships with family members). The appellant served in the military for three weeks. He reported feeling nervous "all my life" and appears to have suffered from anxiety hyperactivity and seizures prior to his military service. The VA examiner opined that it is less likely as not that the appellant's current depressive disorder is the result of his military service. After a careful review of the pertinent evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, other than PTSD. While the service records show that the Veteran had schizotypal personality disorder, personality disorders are not considered diseases or injuries within the meaning of VA law and regulations, and they are not subject to service connection. 38 C.F.R. § 3.303(c), 4.9 (2015) (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. VA's General Counsel, after studying 38 C.F.R. § 3.303(c), issued the interpretation, binding on the Board, that service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. The VA General Counsel also has interpreted that a congenital defect can be subject to superimposed disease or injury, and, if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In this case, the Board finds no evidence of aggravation of the personality disorder, or of a superimposed disorder, during service. Consequently, service connection for the in-service findings of a personality disorder is not warranted. Significantly, the probative evidence of record, to include specifically the April 2013 VA opinion, does not support a grant of service connection for any currently diagnosed psychiatric disorder. The Board finds that the April 2013 VA examiner's opinion constitutes probative evidence on the diagnosis and medical nexus question, based on a thorough review of the appellant's documented medical history and assertions and examination. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The VA examiner has provided a thorough discussion of the rationale for the opinions expressed, as provided in detail above, but opined that the appellant's current depressive disorder is not related to service, and in fact, related the diagnosis to current situational stressors including incarceration and health problems. While an adjustment disorder was diagnosed in service, such disability has not been diagnosed post-service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the April 2013 opinion is supported by a rationale that was apparently provided after the VA examiner considered all procurable and assembled data. Significantly, neither the appellant nor representative has presented or identified any contrary medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Board acknowledges that the appellant himself has opined that he suffers from an acquired psychiatric disorder which is attributable to his military service. The Board has considered those lay assertions. While a lay person, the appellant is certainly competent to offer evidence about his current and past psychiatric symptoms, which fall within the realm of his personal experience. See Layno v. Brown, 6 Vet. App. 465, 471 (1994). Significantly, however, the appellant has not demonstrated that he has the requisite clinical expertise to opine as to medical diagnosis and etiology. Barr v. Nicholson, 21 Vet. App. 303 (2007); Grover v. West, 12 Vet. App. 109 (1999); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, the Board notes that sometimes laypersons are competent to identify a condition, i. e., when simple, such as a broken leg, and sometimes not, e.g., a form of cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A psychiatric disorder is not necessarily accompanied by observable symptoms, and for that reasons alone is more akin to cancer than a broken leg. See Tyrues v. Shinseki, 26 Vet. App. 31 (2012). Thus, the appellant's statements, standing alone, are insufficient to address a medically complex question as is presented in this case. Accordingly, even after careful consideration of those lay statements, the Board finds service connection is not warranted. In summary, the Board finds that the weight of the competent and credible evidence establishes that a psychiatric disorder other than PTSD did not manifest in service and that a current psychiatric disorder first manifested many years after service separation and is not medically related to injury or other incident of active service. In the absence of any actual objective opinion linking a psychiatric disorder other than PTSD to his period of military service, the appellant has failed to meet this crucial element of a service connection claim. Accordingly, the Board finds that the claim for service connection for an acquired psychiatric disability, other than PTSD, must be denied. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs