Citation Nr: 1740343 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 13-08 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran had active service from August 1977 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing has been associated with the record. In December 2016, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran has not been shown to have a current psychiatric disorder that manifested in service or a psychosis that manifested within one year of his active service. The evidence also does not show that he has a current psychiatric disorder that is related to his military service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in active service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The record shows that the Veteran was scheduled for a VA psychiatric examination in January 2017 in connection with his claim for service connection for an acquired psychiatric disorder, but he failed to report without explanation. 38 C.F.R. § 3.159(c)(4) (2016). Where entitlement to a VA benefit cannot be established or confirmed without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant fails to participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). Here, given the evidence of record as set forth below, the Board remanded the case for a VA examination in order to determine the nature and etiology of any current psychiatric disorder. The Veteran, however, failed to report for the examination and has provided no explanation for his failure to do so. In the February 2017 supplemental statement of the case (SSOC), the AOJ advised the Veteran that, in light of his failure to appear, evidence expected from the examination which might have been material to the outcome of his claim could not be considered. The Veteran and his representative have not challenged the fact that he failed to report, requested that the examination be rescheduled, or provided good cause. Under these circumstances, the Board finds that the Veteran's failure to appear was without good cause, and the applicable regulation now requires that the claim be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(b); Turk, 21 Vet. App. 565 (2008). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis 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 (West 2014); 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As psychosis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). Section 4.125(a) has recently been revised to require that diagnoses conform to the updated, Fifth edition of the DSM (DSM-5) for all claims that were received by VA or were pending before the AOJ on or after August 4, 2014. See 79 Fed. Reg. 149, 45094 (August 4, 2014). If VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). At the outset, the Board acknowledges that, on July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843-39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304 (f)(3), corrected by 75 Fed. Reg. 41, 092 (July 15, 2010). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for an acquired psychiatric disorder. An August 1977 enlistment examination report noted a normal psychiatric evaluation. However, the examining physician noted that a neuropsychiatric evaluation was recommended due to the Veteran's reports that he "gets shaky" and that he was thrown out of school after he started a riot in the cafeteria. In an associated August 1977 enlistment report of medical history, the Veteran reported he had nervous trouble. The examining physician noted that he had atypical symptoms that the Veteran described as nervousness. An October 1977 service treatment record indicated that the Veteran was physically examined due to corrective custody. He had no complaints, the examination was essentially negative, and he was found fit for custody. A December 1977 service treatment record documented that the Veteran presented to sick call with complaints that he was dying. A Minnesota Multiphasic Personality Inventory (MMPI) was conducted and the results showed an invalid profile. It was noted that the Veteran was malingering. A January 1980 separation examination report noted a normal psychiatric evaluation. Service personnel records include several recorded nonjudicial punishment proceedings for wrongful appropriation, dereliction of duty, and disrespect to a commissioned officer. The Veteran was recommended for a general discharge for frequent involvement in misconduct. In a February 1980 Naval Discharge Review Board summary, the Discharge Review Board noted that the Veteran was discharged in January 1980 with a General Discharge by reason of misconduct. It was noted that, during the Veteran's two years, five months, and twelve days on active duty, he received five nonjudicial punishments for an unauthorized absence totaling 14 days; three specifications of absence from an appointed place of duty; three specifications of disobedience of a lawful order; disrespect to a superior; four specifications of assault; theft; wrongful appropriation; dereliction of duty; resisting apprehension; and conduct prejudicial to good order and discipline. The Discharge Review Board found that the Veteran's record of service was replete with violations of the Uniform Code of Military Justice and that many of the violations could have resulted in punitive discharges if the Veteran was tried by court-martial. The Discharge Review Board also found that the Veteran's record contained "obvious evidence of complete disregard for the rules and regulations of the Naval service" and showed average military behavior and overall trait averages of 2.08 and 2.78. Post-service treatment records included several correctional facility mental health evaluations spanning an 18-year incarceration for murder. In an October 1990 mental health evaluation at a correctional facility, the psychologist noted that the Veteran needed no immediate mental health services. The Veteran made no psychological complaints, and he denied having any significant history of psychiatric treatment, suicidal attempts or ideation, cerebral trauma, or past or present institutional adjustment problems. The psychologist noted that no gross signs of psychopathology or serious intellectual impairment were observed. In an undated Pontiac Correctional Facility psychiatric evaluation, the Veteran reported that he had requested to see a psychiatrist in the past, but he did not have any problems. He did not report any neurovegetative symptoms, and he stated that he was doing okay. He indicated that he had no history of any psychiatric treatment in the past. The psychologist also noted that there was no indication for psychiatric treatment at that time. In an August 1994 Menard Correctional Facility mental health evaluation report, the psychiatrist noted that the Veteran refused an evaluation. The psychiatrist stated that he had never evaluated the Veteran in the past, and his chart showed no indication that he suffered from any form of mental illness. The psychiatrist noted that the Veteran had not been referred to a psychiatrist, except for one instance in 1991, but a diagnosis was not provided at that time. In March 1995, December 1995, September 1997, October 1998, January 2000, November 2000, October 2002, January 2003, April 2003, and September 2005 Menard Correctional Facility psychological evaluations, the psychologist administrator noted that the Veteran had been placed in segregation status and that there were no significant mental health or adjustment issues noted that would warrant further services. There were no contraindications for continued segregation placement. In a September 2005 Illinois Department of Corrections mental health note, the Veteran denied having the need for mental health services during routine periodic segregation rounds. In January 2007 and August 2007 corrections facility intake mental health assessments, the Veteran denied any prior treatment for mental health or emotional issues, and he denied taking any medication for mental health or emotional issues. He made no indications of depression or feeling anxious. He also denied any past suicide attempts or ideation as well as any history of head trauma. In a May 2007 Social Security Administration (SSA) psychological evaluation, the Veteran reported that he had a tenth grade education with multiple school suspensions. He stated that he began drinking at 13 years old and used alcohol daily until his incarceration. He noted that he was initially arrested when he was 15 years old, and he stated that he was discharged from the Navy after two years due to frequent misconduct. He estimated that he last worked in 1988 in a maintenance-construction job for two years before he was incarcerated and subsequently served an 18-year prison term for murder. He was released in November 2006, and he was briefly incarcerated after his release in January 2007 for loitering. He related that he had approximately 15 prior arrests. He denied any psychiatric hospitalizations, but he indicated that he was evaluated by a mental health professional during his incarceration because he became withdrawn and would not talk to anyone. He stated that he was depressed due to his residential and financial situation. The psychologist diagnosed the Veteran with alcohol abuse by history and a personality disorder, not otherwise specified. In a May 2007 SSA psychiatric evaluation, the examining psychiatrist diagnosed the Veteran with a personality disorder and a substance abuse disorder. He opined that the Veteran's primary symptoms related to his antisocial behavior and possible alcohol abuse, which may or may not have been in remission. He also noted that the Veteran's depressive complaints were situational and that he had no other indications of major psychiatric illness. In an October 2007 Illinois Department of Corrections intake chart review, it was noted that the Veteran had a history of depression and bipolar disorder and that he was prescribed four medications as of May 2007. During a July 2009 VA substance abuse treatment program admission evaluation, the Veteran reported that he used alcohol daily and had limited cannabis use; he denied other drug use. He felt that he functioned better while using alcohol and indicated that he was moody and impatient when he was not using alcohol. The Veteran indicated that he began drinking when he was 13 years old and that his longest period of sobriety was during his imprisonment. He indicated that he drank to control shaking. He also related that he was homeless and unemployed; he stated that he last worked in June 2009. The Veteran admitted that he was treated by a psychiatrist twice in the past for antisocial behavior, but he denied being prescribed any medications or hospitalizations. He also stated that he was told that he had behavioral problems growing up. He related that he was in the brig for half of his time in the Navy for drinking, disorderly conduct, and missing ship's movement. The Veteran also stated that he had been arrested a few times and had been to prison twice in the past. He was released in September 2008 after a 16 1/2 year prison sentence for first degree murder. He stated that, after he was released, he refused to check in with his probation officer and was arrested again. The diagnosis was an addictive disorder. In a July 2009 VA mental health note, the Veteran indicated that he was seeking help to understand why his alcohol use impacted his social abilities. He reported that he was imprisoned for 16 1/2 years for murder after he killed someone burglarizing his residence. He stated that he used alcohol daily for 37 years and that he used cannabis. He was homeless and unemployed. An August 2009 VA treatment note included a diagnosis of alcohol and/or drug dependence. In a January 2010 VA treatment note, the Veteran reported that he recently moved from Phoenix, Arizona. He related that he was homeless, lived in a shelter, and was unemployed. He also stated that he was incarcerated from 1988 to 2005. The Veteran indicated that he was depressed due to his homelessness and unemployment. The nurse noted that he would refer the Veteran to the posttraumatic stress disorder (PTSD) team for further evaluation and treatment. In an April 2010 VA social work note, the Veteran stated that he came to Seattle to enroll in the PTSD program. The social worker noted that the Veteran subsequently asked what PTSD was and then reported that his only bad experiences in the Navy were his many trips to the brig. In an April 2010 Washington State Department of Social and Health Services psychological evaluation report, the psychologist noted that the Veteran claimed that he had PTSD and social obstruction. The psychologist indicated that no past records were available for review. He also noted that the Veteran reported a history of a head injury of uncertain consequences when he was 11 years old and that he was hospitalized for three days. The psychologist noted that the Veteran presented as intellectually impaired. The Veteran related that he was referred by various individuals for mental health services, but he had refused. He stated that his only episode of mental health treatment was in Illinois in 1985 when he was briefly hospitalized for "wanting to hurt someone, maybe it was for the criminally insane." The Veteran reported that he left school in eleventh grade to join the Navy, and that during service, he was "busted down" for frequent misconduct. The psychologist diagnosed the Veteran with severe, recurrent major depression with an onset in young adulthood; an anxiety disorder, not otherwise specified, with an onset in young adulthood; alcohol dependence in partial remission with an onset in young adulthood; and antisocial personality disorder with an onset in adolescence. The psychologist also stated, "In spite of the fact that this gentleman managed to enlist in the Navy, he does appear rather intellectually impaired." The psychologist also noted that the Veteran had symptoms of PTSD from "both a number of assaults and also from his 15 years in prison." In an April 2010 Social Security Administration (SSA) field report, the Veteran reported that his psychiatric disorder began in 2006. In an August 2010 private psychological evaluation, the psychologist noted that the Veteran reported and presented with significant emotional difficulties, including severe symptoms of depression, auditory hallucinations, paranoia, an exaggerated startle response, social impairment, and flashbacks. The psychologist stated that the Veteran struggled to articulate a specific trauma; however, he reported that he was recently "placed in the positive range for PTSD" on a brief VA scan. The psychologist indicated that VA treatment records generally confirmed much of the Veteran's reported history and indicated that there was a long history of heavy alcohol use without any formal diagnoses. The Veteran reported that he spent half of his Navy service in the brig and that he had issues related to alcohol and disorderly conduct during service. The psychologist diagnosed the Veteran with severe, recurrent major depressive disorder with psychotic features; a provisional diagnosis of PTSD; and alcohol dependence in partial remission. During a November 2011 private psychology evaluation, the Veteran stated that he suffered from depression throughout his life and referenced feeling unwanted during his childhood. He stated that he was stabbed three times in 1975, 1986, and 2006. He endorsed the following symptoms: auditory hallucinations, chronic paranoia, significant hypervigilance, exaggerated startle response, regular nightmares, intrusive thoughts, emotional numbness, and suicidal ideation. The psychologist noted that the Veteran's overall cognitive functioning placed him in the fourth percentile and in the borderline intellectual functioning range. The psychologist diagnosed severe, recurrent major depressive disorder with psychotic features; PTSD; alcohol abuse in early full remission; and borderline intellectual functioning. In a December 2011 statement, a private psychologist opined that the Veteran had chronic issues with depression and psychosis that would clearly impact his ability to make judgments. He also opined that these difficulties were exacerbated by the Veteran's long prison stint. VA treatment notes dated from March 2013 through January 2016 documented diagnoses of alcohol abuse and paranoid schizophrenia. In a January 2014 Washington State Department of Social and Health Services psychological evaluation, the Veteran stated the following: Things were alright until my grandma died when I was 13. After that just didn't nobody care about me. The doctors say I might have schizophrenia. It's because I hear voices and the voices don't like people. They don't want me to be around people. The Veteran reported that he had a history of suicide attempts, including one attempt when he was 14 years old. He also related that he started using alcohol when he was 13 years old and that he drank until approximately 2012. He stated that he went to prison for 18 years in 1988 for murder and that he spent a majority of his imprisonment in solitary confinement because he was a danger. He also reported that he was stabbed twice in prison. In January 2014, the Social Security Administration (SSA) determined that the Veteran had severe impairments due to a depressive disorder, an anxiety disorder, alcohol dependence, and PTSD. During the September 2016 hearing, the Veteran testified that he had been distrustful of people since 1978. He stated that his feelings of isolation began during boot camp and that he felt that he did not fit in. He recalled a specific incident in which he was asked to leave the gun range and he was referred to the chaplain for feelings of separation from his family. The Veteran also acknowledged that he was involved in multiple fights and disobeyed orders during service. He stated that, before service, he hit himself in the head with the top of an axe and it was recorded as a suicide attempt. He stated that, when he was 17 years old, he did not want to be around the people that he knew anymore, so he enlisted, but he had the same feeling in service. In reviewing the evidence, the Board notes that the presumption of soundness applies because no psychiatric abnormalities were noted on the enlistment examination. There is also insufficient evidence to rebut that presumption. Moreover, the evidence does not show that the Veteran has a psychiatric disorder that manifested in service or a psychosis that manifested within one year of his separation. Indeed, the Veteran even denied having a psychiatric disorder on numerous occasions and for many years, and his health care providers did not diagnose him with any disorder for many years following his military service. In addition, the evidence does not show that the Veteran has a current psychiatric disorder related to his military service, to include any reported symptomatology therein. The post-service records do document various diagnoses, such as a personality disorder, depression, PTSD, an anxiety disorder, and schizophrenia, but the available evidence does not relate those disorders to his military service. In fact, VA treatment records dated in January 2010 indicate that the Veteran reported that his depression was instead related to his unemployment and homelessness. An April 2010 Washington State Department of Social and Health Services psychological evaluation report also notes that the Veteran had symptoms of PTSSD from assaults and his 15 years in prison after service. Similarly, in a December 2011 statement, a private psychologist indicated that the Veteran's depression and psychosis were exacerbated by his long prison sentence. The Board attempted to obtain a VA examination and medical opinion to address the etiology of any current psychiatric disability; however, as noted above, the Veteran failed to report for that examination. According to 38 C.F.R. § 3.655, in an original compensation claim, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. The VA examination and medical opinion may have provided evidence to support the Veteran's claim, but due to his failure to report, the claim must be adjudicated based on the available evidence of record. Furthermore, the Board notes that the Veteran has not been diagnosed with PTSD based on a verified in-service stressor. In fact, the Veteran told a VA social worker in April 2010 that his only bad experiences in service were his many trips to the brig. See 38 U.S.C.A. § 105(a) (West 2014); 38 C.F.R. §§ 3.1(m), 3.301(d) (2016) (providing that 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). In summary, the Board finds that the available and most probative evidence shows that an acquired psychiatric disorder did not manifest in service or within one year thereafter and is not otherwise related to the Veteran's military service. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs