Citation Nr: 1752820 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-26 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, to include bipolar disorder, adjustment disorder, and a personality disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2001 to May 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2016, the Board remanded this case to the RO for additional development. It has now returned to the Board for appellate review. Pursuant to the remand, the RO scheduled the Veteran for VA examinations to determine the nature and etiology of the claimed disabilities. However, as discussed further below, the Veteran failed to appear. Thus, the RO substantially complied with the Board's September 2016 remand instructions, and an additional remand to comply with the Board's directives is not required. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran does not have a psychiatric disorder related to service. 2. The Veteran's low back disability is not the result of an injury or disease incurred in or aggravated by active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder, to include bipolar disorder, adjustment disorder, and a personality disorder, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for low back disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any specific 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). The Board notes that pursuant to the September 2016 Board remand the Veteran was scheduled for VA examinations in November 2016 for his claims. The record shows that the Veteran failed to report for his scheduled VA examinations. No good cause for missing the examinations has been shown, nor has he requested the examinations be rescheduled. Therefore, the Board will proceed to adjudicate the claims based on the evidence of record. 38 C.F.R. § 3.655 (2017). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claims. The Veteran has not identified any outstanding evidence that needs to be obtained. To the extent the evidence of record is incomplete, that is a direct result of the Veteran's failure to cooperate with VA in developing his claims. The Veteran claims entitlement to service connection for a psychiatric disorder and a low back disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In addition, certain chronic diseases, such as psychoses, may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, presumptive service connection may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinseki, 581 F.3d 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). However, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a), such as psychoses. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). According to 38 C.F.R. § 3.384, "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance/medication-induced psychotic disorder. 38 C.F.R. § 3.384. In determining whether service connection is warranted for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Upon careful consideration of the Veteran's allegations in conjunction with all the evidence of record and applicable law and regulations, and for the reasons set forth below, the Board finds that the evidence weighs against the Veteran's service connection claims. Service treatment records indicate the Veteran was diagnosed with alcohol dependence in early remission, adjustment disorder with a depressed mood, and borderline personality disorder in March 2002. A March 20, 2002, record notes the Veteran complained of lower back pain after moving furniture and hearing his back pop and a March 22, 2002, notation implied the Veteran was receiving treatment for his lower back pain. An April 2002 report of mental status evaluation showed the Veteran's mood or affect was labile. Separation documents note the Veteran separated from service due to a personality disorder. Post-service records reflect diagnoses of psychiatric disorders and a low back disability. See November 2006 private treatment record (noting a diagnosis of bipolar disorder); see also September 2007 private treatment record (noting the Veteran had a diagnosis of borderline personality disorder); see also July 2008 private treatment record (noting a diagnosis of sacroiliitis, lumbar sprain/strain, and displacement of intervertebral disc, site unspecified without myelopathy). Additionally, the Veteran was afforded VA psychiatric examinations in September 2010 and December 2011, in which the Veteran was diagnosed with alcohol dependence, cannabis abuse, and personality disorder with antisocial and borderline traits. It was the opinion of the examiner that based upon reasonable scientific and clinical certainty that the Veteran did not currently meet diagnostic criteria for bipolar disorder or any other major mood or psychotic disorder. Therefore, there is debatable evidence as to the Veteran's current psychiatric disorder. The Board determined these examinations were inadequate as neither discussed the Veteran's in-service diagnosis of an adjustment disorder with depressed mood. To resolve this issue, the Board determined that a new VA examination was necessary to identify any psychiatric disorders found to be present and the etiology of the Veteran's disabilities. See September 2016 Board decision. As noted above, the Veteran failed to report for his scheduled VA examination and did not show good cause for missing the examination. Regardless of this discrepancy, the Board still finds service connection is not warranted. First, the available evidence does not show that the Veteran has been diagnosed with what could be characterized as a psychosis (a "chronic disease" listed under 38 C.F.R. § 3.309(a)), such as schizophrenia and the Veteran does not allege such. As the Veteran has not been shown to have a chronic disease under 38 C.F.R. § 3.309(a), service connection may not be awarded under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Second, to the extent the Veteran has been diagnosed with alcohol/drug abuse disorder, as a matter of law, direct service connection for alcohol and drug dependence resulting from alcohol and drug abuse cannot be granted. See 38 38 U.S.C. § 105 (a) (2012); 38 C.F.R. § 3.301 (c)(3)(d) (2017). While the law allows service connection for an alcohol or drug abuse disability secondary to a service-connected disability, this has not been alleged or established in this case. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Third, while post-service records reveal a diagnosis of a personality disorder, such disorders are considered "congenital or developmental defects" which are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303 (c); see also Johnson v. Principi, 3 Vet. App. 448, 450 (1992); Conley v. Peake, 543 F.3d 1301, 1305 (Fed. Cir. 2008). Therefore, as a matter of law, the Veteran is not entitled to service connection for a personality disorder. There is also no suggestion in the evidence that any personality disorder was somehow aggravated by his military service. Fourth, for any other currently diagnosed psychiatric disorder and low back disability, the Board finds there is no medical opinion that addresses the etiology of the Veteran's disabilities. Indeed, the Board previously remanded these issues to the RO in an attempt to schedule VA examinations for the purpose of determining the etiology of the Veteran's disabilities; however, the Veteran failed to report and did not show good cause for missing the examinations. As a chronic psychiatric condition and back condition were not factually shown during service, an opinion is needed linking the post-service diagnoses to some disease, injury, or event during service. The Board recognizes the Veteran's assertion that he has a psychiatric disorder and low back disability related to service and notes his in-service findings of a psychiatric disorder and complaints of low back pain. However, the Board finds that he is not competent to offer an opinion as to the etiology of these disabilities, as such a determination requires a level of medical expertise which the Veteran, as a layperson, does not possess. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"). See also 38 C.F.R. § 3.159 (a)(1)-(2) (2017). Furthermore, the Board notes post-service records reflect the Veteran was first diagnosed with bipolar disorder in November 2006 and was silent as to any complaints of or injury to the low back until June 2007. Additionally, the Board notes a July 2008 private treatment record reflects the Veteran reported his back pain started two weeks ago and reported no history of trauma, injury, or unusual activity prior to pain starting. This statement is inconsistent with the reporting of another cause of the Veteran's low back pain, as well as inconsistent with any allegation he had low back symptoms since service. If he had low back symptoms since service and had seen a doctor for those symptoms, he would have reported such in a treatment context and cited his belief that military service was the reason for his low back pain. Therefore, absent competent evidence of a current psychiatric disorder and low back disability related to any event of active service, the Veteran's claims must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a psychiatric disorder, to include a bipolar disorder, an adjustment disorder, and a personality disorder, is denied. Service connection for a low back disorder is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs