Citation Nr: 1712652 Decision Date: 04/19/17 Archive Date: 04/26/17 DOCKET NO. 11-22 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant had active duty service from June 13, 1975, to July 7, 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Sioux Falls, South Dakota, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2014, the Board reopened a previously denied claim and remanded the case for additional development. FINDING OF FACT A chronic acquired psychiatric disorder was not manifest during active service; and, the preponderance of the evidence fails to establish that an acquired psychiatric disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION 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) (2016). The duty to notify has been met. See VA correspondence dated in February 2011. Neither the appellant, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, service personnel records, VA treatment and examination reports, non-VA (private) treatment records, Social Security Administration (SSA) records, and statements and testimony in support of the claim. The development requested on remand has been substantially completed. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the appellant's complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Although in a November 2015 statement the appellant's service representative asserted, in essence, that an October 2015 VA medical opinion was inadequate because the examiner failed to specifically note a June 1975 provisional diagnosis of possible conversion reaction, the Board finds no merit to the claim based upon the examiner's report of the evidence reviewed. The available medical evidence is found to be sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim 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. § 1131 (West 2014). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). VA regulations provide that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. It is further noted that in the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. 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. 38 C.F.R. § 3.303(c) (2016). A Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence (obvious or manifest) establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2016). Noted means "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). "Clear and unmistakable evidence" is an "onerous" evidentiary standard requiring that the conclusion be "undebatable." Cotant v. Principi, 17 Vet. App. 116 (2003) (citing Laposky v. Brown, 4 Vet. App. 331 (1993)). The presumption of soundness attaches only where there has been an induction medical examination and where a disability for which service connection is sought was not detected at the time of such examination. Crowe v. Brown, 7 Vet. App. 238 (1994). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that active service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2016). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); 38 U.S.C.A. § 1153 (West 2002). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Psychoses are qualifying chronic diseases under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology may be applicable here. Service connection can be granted for certain chronic diseases, including psychoses, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). A veteran, however, must have served for 90 days or more for the purpose of establishing presumptive service connection. 38 C.F.R. § 3.307(a)(1). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2016). Here, the appellant contends that he has an acquired psychiatric disorder that was either incurred or aggravated as a result of active service. In statements and testimony provided in support of his claim he reported that he first started receiving mental health treatment at age 12 and that he had been held back twice in the seventh grade because of his mental health condition. He testified that he had seen mental health care providers twice during service and that within two or three months after service he was hospitalized at a state mental hospital in Blackfoot, Idaho. He reported he had received psychiatric care continuously since then. Service treatment records show that in his June 1975 report of medical history upon enlistment the appellant noted having depression or excessive worry and frequent trouble sleeping. The examiner noted that he reported he had tried to slash his wrists six years earlier and had been depressed by a friend's death. It was further noted that he had not seen a physician and that there was no sequelae. A June 1975 examination report revealed a normal clinical psychiatric evaluation. He was found to be qualified for enlistment. A Separation examination 16 days later in June 1975 also revealed a normal clinical psychiatric evaluation, but noted he was not qualified for induction due to bilateral chondromalacia. A subsequent June 1976 consultation request noted the appellant was being medically discharged for a knee problem and needed an expeditious mental health clinic evaluation prior to discharge. A provisional diagnosis of possible conversion reaction was provided. A health record dated two days later indicated the appellant had been referred for an emergency evaluation for conversion reaction and that he had been instructed to return to the orthopedic service for re-evaluation. It was also noted that he was informed that he could return to the examiner if he desired. Post-service treatment and hospital records include numerous and various acquired psychiatric disorder diagnoses. Hospital records dated in June 1978 show the appellant was voluntarily admitted after conflicts with his father and brother approximately one week earlier. It was noted he was also experiencing anxiety over the separation from his spouse. Diagnoses of anxiety neurosis and schizoid personality were provided. Hospital reports dated in May 1981 included diagnoses of inadequate personality, atypical schizophreniform, rule out attention deficit disorder, borderline personality, and psychosexual features. SSA records include a September 1981 hospital report identifying problems with drug abuse, a history of suicide attempts, and impulsive and threatening behaviors. An August 1985 hospital report noted a long history of hospitalizations and provided diagnoses of alcohol dependence in remission, atypical psychosis (provisional), and borderline personality with paranoid features. It was noted he had been hospitalized at the Idaho state hospital in 1974, 1976, 1978, 1981, and 1982. VA treatment records show the appellant was provided an initial diagnosis of depression in March 1988. Subsequent reports include additional acquired psychiatric disorder diagnoses. A June 2007 statement noted diagnoses of bipolar disorder, posttraumatic stress disorder (PTSD)/childhood sexual trauma, dissociative identity disorder, anxiety state, and borderline personality disorder. VA examination in October 2015 included diagnoses of other specified trauma and stressor-related disorder and unspecified personality disorder. The examiner noted that the appellant had a long history of mental health symptoms and subsequent treatment. It was noted his symptoms clearly began during childhood and had varied throughout his life. He had received VA treatment including inpatient and outpatient care and his most recent mental health diagnoses were related to mood, NOS, and unspecified personality disorder. There was no history of military-related trauma. The examiner stated the record indicated that there was no previous evidence that his mental health symptoms were exacerbated as a result of his brief military service. The examiner found the diagnoses were less likely incurred in or caused by an in-service injury, event or illness. It was noted his anxiety disorder was due to childhood sexual abuse and had not been exacerbated beyond its natural course due to military service. His personality disorder was also found not to have been exacerbated beyond its natural course due to military service. Based upon the evidence of record, the Board finds that a chronic acquired psychiatric disorder was not manifest during active service and that the preponderance of the evidence fails to establish that an acquired psychiatric disorder is etiologically related to service. Although the record shows the appellant had mental health symptoms manifest since childhood, there is no competent evidence that an acquired psychiatric disorder existed prior to service nor that any chronic psychiatric disorder had its onset during service. The October 2015 VA examiner's opinions are persuasive and based upon adequate rationale. The examiner reviewed the evidence of record and adequately considered the credible lay statements and reported symptom manifestation history of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the appellant's assertion that he had a psychiatric disorder that was aggravated by service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The medical significance of symptoms and chronicity are not conditions readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The appellant is competent to report observable symptoms. However, there is no indication that he is competent to link etiologically any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise as to this disorder. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for an acquired psychiatric disorder is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against this claim. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs