Citation Nr: 1624509 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 12-14 422A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a psychiatric disability, claimed as depression and schizophrenia. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The May 2010 decision found that new and material evidence had not been submitted to reopen a previously denied claim for service connection for a psychiatric disability. The August 2013 decision denied service connection for right and left knee disabilities. In May 2013, the Board reopened and remanded the claim for service connection for a psychiatric disability. It is now before the Board for further appellate review. The Board notes that the Veteran was previously represented by a private attorney. In an October 2015 letter, that attorney withdrew from representation. The attorney stated that he had notified the Veteran of his action and he provided good cause by informing VA that the Veteran had failed to cooperate with the proper preparation and presentation of the appeal, specifically by failing to keep in contact with the attorney. As a result, the attorney's withdrawal was in compliance with 38 C.F.R. § 20.608(b)(2) (2015). The Veteran has not objected to the attorney's withdrawal of representation. Since the attorney withdrew, the Veteran has not appointed a new attorney, agent, or representative, and he is thus unrepresented before the Board in this appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A psychiatric disability was not manifested in service and is not shown to be related to service. 2. A right knee disability was not manifested in service and is not shown to be related to service. 3. A left knee disability was not manifested in service and is not shown to be related to service. CONCLUSIONS OF LAW 1. Service connection for a psychiatric disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Service connection for a right knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 3. Service connection for a left knee disability is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Asist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The notice requirements have been met. Appropriate letters notified the Veteran of the information needed to substantiate and complete his claims of service connection, to include notice of the information that he was responsible for providing and of the evidence that VA would attempt to obtain. He was also provided notice as to how VA assigns disability ratings and effective dates. With regard to any defects in timeliness of the notice, the Board finds that any prejudice arising from the timing of the notice has been effectively cured by the subsequent readjudication of these claims. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (issuance of a fully compliant notification followed by readjudication of the claim is sufficient to cure a timing defect). Regarding the duty to assist, the service medical records, VA treatment records, Social Security Administration (SSA) records, and some private treatment records have been secured. The Board notes that some of the Veteran's private treatment records are unavailable despite efforts by VA to obtain them. The Veteran has had the opportunity to obtain and submit those records. The Veteran has not identified any additional records that could be used to support the claims. The Veteran was provided March 2012 and June 2015 VA examinations for his claims. The Board acknowledges that the July 2015 mental disorders examination was based on a review of the claims file and did not include an in-person examination. Several attempts were made to schedule an in-person examination. However, the Veteran repeatedly failed to report to scheduled examinations. VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Board finds the opinions provide adequate competent evidence to allow the Board to decide the matters, and that no further development of the evidentiary record is necessary. The Board finds that the July 2015 mental disorders examination substantially complied with the remand request. Stegall v. West, 11 Vet. App. 268 (1998). No additional pertinent evidence has been identified by the Veteran as relevant to the issues adjudicated in this decision. The Board is satisfied that evidentiary development is complete and that VA's duties to notify and assist are met. The Veteran is not prejudiced by the Board deciding these claims. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Service Connection Service connection will be granted if it is shown that the Veteran has a disability resulting from an injury incurred or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in line of duty, in active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection on a direct basis, the record must contain: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disabilities diagnosed after separation will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The determination as to whether the requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2015). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt in resolving each such issue shall be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting a decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Psychiatric Disability Post-service treatment records show that the Veteran has psychiatric diagnoses, including antisocial personality disorder, polysubstance dependence, and paranoid schizophrenia. A current disability is therefore established. To establish service connection, the evidence must still show that a current disability is related to service, or any incident of service. The Veteran's service medical records show that he received a general discharge due to a personality disorder. Specifically, after the Veteran stated he would kill someone if he did not get out of the Marine Corps, a psychological consultation recommended rapid administrative separation due to emotionally unstable personality disorder, characterized by a lifelong history of extremely poor impulse control and inability to tolerate authority. That was noted as severe in degree, and even included leaving home at thirteen and living on his own due to an inability to tolerate his father's authority. Psychotherapy and hospitalization were described as useless in their ability to restore him to duty status. His post-service treatment records show a long history of psychiatric problems, first evidenced in a June 1990 psychiatric evaluation that was obtained for a criminal proceeding. In a letter dated August 2010, a licensed psychologist diagnosed a cognitive disorder, paranoid schizophrenia, and posttraumatic stress disorder (PTSD). The psychologist stated the Veteran reported experiencing psychotic symptoms, including auditory and visual hallucinations with paranoid ideation, in his early twenties. The psychologist stated that was the typical age of onset for that condition, and that although one could only speculate, it was possible he was demonstrating symptoms of a psychotic disorder prior to separation from the service. In October 2012, the Veteran had a private mental status examination by telephone. The private psychologist reviewed the claims file. At that time, the Veteran reported he "became paranoid" when he received orders to go to Vietnam, hid under his bed, started hearing voices, and got into fights with his superiors. He reported working in construction for seventeen years and as an insurance adjuster for three years following service. He obtained a commercial driver's license and worked as a truck driver until he became "paranoid while driving in traffic." The psychologist noted the Veteran had a significant post-service history of psychiatric hospitalizations, substance abuse, and felony convictions with prison time. He reported that although the Veteran was discharged from service due to a personality disorder, there was no history of similar behavior or history of any mental health treatment prior to service. The psychologist stated that because the Veteran's pre-service history did not provide any data to support the existence of symptoms consistent with a personality disorder, that suggested more likely than not that the behaviors exhibited in service were in fact a psychotic disorder, which progressively worsened following separation from service. In June 2015, a VA examination was conducted by review of available records, as the Veteran repeatedly did not report for scheduled examinations. The examiner noted that a review of the records indicated the Veteran claimed he became paranoid and heard voices while in service, leading to discharge due to a personality disorder. In a June 1990 medical record to determine sanity for legal purposes, the Veteran reported using "LSD, Peyote, mescaline, black beauties, rainbows, and hash" fairly heavily during service. He further reported he did not use drugs from 1970 until 1982, during which time he maintained a successful general contracting and mobile home repair business and bought 120 acres and built a large house on it. The examiner noted the Veteran had a history of a very abusive childhood and a very extensive history of heavy drug use, including LSD and methamphetamines, which were quite capable of producing hallucinations and delusions. The examiner stated that the Veteran's reported heavy drug use while in service was followed by twelve drug-free and successful years building a business and establishing a family. The examiner noted it was not likely that an individual with schizophrenia would be symptom-free long enough to be able to accomplish that, but that a person whose psychotic incidents were caused by drugs could perform successfully when drug abstinent. The examiner further stated that due to the many years of heavy, extensive drug use, it seemed more likely than not that the Veteran's symptoms were due to chronic, long-term drug use rather than any schizophrenic disorder. His extensive drug use and criminality were noted as positive indicators of an antisocial personality disorder. The examiner thus opined that the Veteran's current psychiatric symptoms were the result of long-term drug use and not due to a psychiatric disability. The Board finds that the evidence of record does not support a finding of service connection for a psychiatric disability. The Board finds the VA examiner's opinion to be the most probative evidence of record regarding the relationship between any current psychiatric disorder and service. The examiner expressed familiarity with the record and provided a clear explanation of a rationale. The examiner outlined the Veteran's medical history and found it less likely than not that any current psychiatric symptoms were related to service. The opinion was fully articulated with clear conclusions based on an accurate factual foundation and supported by sound reasoning. The Board finds no reason to question the provider's expertise or the rationale given. The Board finds that opinion to be the most persuasive evidence of record as it considered all previous opinions and medical evidence. The Board has considered the Veteran's reports of experiencing psychotic symptoms during and since service and attributing his current psychiatric symptoms to service. The Board acknowledges that laypersons are competent to provide evidence of matters within their personal knowledge, to include the occurrence of in-service injury, and with respect to the existence, and continuity, of problems. Washington v. Nicholson, 19 Vet. App. 362 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board does not find the Veteran's reports credible regarding experiencing psychotic symptoms in service and symptoms since service. That is because his statements are inconsistent with the contemporaneous evidence. For example, the Veteran's psychological consultation during service indicated he had extremely poor impulse control and an inability to tolerate authority, but it did not report any symptoms of psychosis. Likewise, although he has reported continued psychiatric symptoms since service, the medical records and the Veteran's reports note he worked successfully for many years after that October 1970 separation from service. The Board finds that the contemporary evidence is more persuasive than later statements made in furtherance of a claim for benefits. Further, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a diagnosis or a competent opinion as to medical causation with respect to psychiatric symptoms. The question of causation involves a complex medical question, and the Veteran does not have the medical expertise to provide such an opinion. Therefore, he is not competent to provide an opinion as to the etiology of any current psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). With respect to the August 2010 and October 2012 private opinions that were submitted, the Board notes those relied heavily on the Veteran's lay statements and reported history, which the Board has been found not credible. Therefore, the probative value of those opinions is reduced. Finally, to the extent the Veteran contends his current psychiatric disorder is due to drug use during service, service connection on a direct basis for drug abuse dependence is precluded as a matter of law. With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110 (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(d) (2015). Direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. VAOPGCPREC 7-99 (1999), 64 Fed. Reg. 52,375 (1999); VAOPGCPREC 2-98 (1998), 63 Fed. Reg. 31,263 (1998). The Board finds that the preponderance of the evidence supports a finding that any current psychiatric symptoms are the result of the abuse of alcohol or drugs and thus, service connection is precluded. To the extent that the Veteran has been diagnosed with a personality disorder, which was the reason for separation from service, the Board notes that personality disorders are not disabilities for VA purposes and service connection cannot be granted for a personality disorder. 38 C.F.R. § 3.303(c) (2015). Accordingly, the Board concludes that the preponderance of the evidence is against the claim. Service connection for a psychiatric disability must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Knee Disabilities The Veteran contends he has right and left knee disabilities due to service. A February 1969 Report of Medical Examination at entrance noted right and left knee scars, as did an October 1970 Report of Medical Examination at separation from service. There is no evidence of complaints or treatment for right or left knee problems during service. On March 2012 VA examination, the Veteran was diagnosed with mild bilateral knee degenerative joint disease (DJD). He reported he had skin cancer of the right knee in service that was surgically removed. He denied injury to the right knee in service, but stated he had deep internal burning pain since then. He denied scar pain. He also reported a knife injury to the left knee during service that was treated with stitches. He said he had pain in the left knee since the injury. The examiner opined that the claimed right and left knee disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner was unable to find records of the stated knee problems in the Veteran's service records. While the separation examination noted bilateral knee scars, there was no record of their occurrences. Even if the Veteran's information regarding in-service knee injuries was accurate, the examiner noted the current bilateral knee complaints were not due to service. the current knee symptoms related to mild bilateral knee degenerative joint disease, and were not due to knee scars or their causative knee injuries. The examiner noted there was no nexus between knee scars and degenerative joint disease (DJD). The Board finds that the evidence of record does not support a finding of service connection for right or left knee disabilities. The Board finds the VA examiner's opinion to be the most probative evidence of record regarding the relationship between the Veteran's current mild bilateral knee DJD and service. The examiner expressed familiarity with the record and provided a clear explanation of rationale. The examiner outlined the Veteran's medical history and found it less likely than not that the Veteran's mild bilateral knee DJD was related to service. That opinion is fully articulated with clear conclusions based on an accurate factual foundation and supported by sound reasoning. The Board finds no reason to question the provider's expertise or the rationale given. The Board has also considered the statements from the Veteran attributing his right and left knee disabilities to service. However, the Board does not find the Veteran's reports of in-service knee injuries credible. That is because his statements are inconsistent with the contemporaneous evidence, specifically the service medical records, which note knee scars prior to service and no complaints of knee injuries during service. There is specifically no indication in the service medical records that the Veteran had skin cancer in the right knee surgically removed during service, or that he incurred a left knee knife injury requiring stitches during service. Further, the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to provide a competent opinion as to medical causation. The question of causation involves a complex medical question, and the Veteran does not have the medical expertise to provide such an opinion. Therefore, he is not competent to provide an opinion as to the etiology of any current bilateral knee disabilities. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the preponderance of the evidence is against the claims. Service connection for right and left knee disabilities must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015). ORDER Entitlement to service connection for a psychiatric disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs