Citation Nr: 1754070 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 11-18 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a previously denied and final claim for a psychiatric disorder. 2. Entitlement to service connection for a psychiatric disorder, to include schizophrenia. 3. Entitlement to service connection for an eye condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1977 to December 1980. These matters come before the Board of Veterans Appeals' (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before the undersigned Veterans Law Judge in a June 2017 video conference hearing. A transcript of that hearing has been associated with the file. FINDINGS OF FACT 1. The Board denied the petition to reopen entitlement to service connection for a psychiatric disorder in December 2006; VA and private treatment records, hearing testimony, and a private psychotherapy intake examination submitted between September 2009 and June 2017, when considered credible for purposes of reopening, relate to unestablished facts necessary to substantiate this service connection claim. 2. The probative evidence of record demonstrates that the Veteran's currently diagnosed psychiatric disorder had its onset years after service and is not related to any in-service disease or injury. 3. The Veteran has not provided any probative evidence of a medical relationship, between his psychiatric disorder and service. 4. The probative evidence of record demonstrates that the Veteran's currently diagnosed eye condition had its onset years after service and is not related to any in-service disease or injury. 5. The Veteran has not provided any probative evidence of a medical relationship, or nexus between his eye condition and service. CONCLUSIONS OF LAW 1. The December 2006 Board decision that denied the petition to reopen the claim of entitlement to service connection for a psychiatric disorder is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received to reopen the claim of service connection for a psychiatric disorder. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.125 (2017). 4. The criteria for service connection for an eye condition have not been met. 38 U.S.C. §§ 1110, 1101, 1131, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any 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). New and Material Evidence By way of a December 2006 decision, the Board denied the petition to reopen the claim of entitlement to service connection for a psychiatric disorder. The Veteran did not appeal this decision and no additional evidence was timely submitted; therefore, the December 2006 Board decision is final. See U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. In order to reopen a finally disallowed claim, new and material evidence must be submitted. See 38 U.S.C. § 5108; see also 38 C.F.R. § 3.156. Evidence added to the file since the December 2006 denial includes the Veteran's VA treatment reports, private treatment records, a private examination, and a hearing transcript. These records are new because they were not previously considered by agency decision makers. They are relevant to the Veteran's present claim on appeal, as they document a current psychiatric disability and his contentions relating the disability to service, which are considered credible for purposes of reopening. As the evidence received since the Board's December 2006 denial includes new and material evidence, the criteria to reopen and consider this claim on the merits are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, 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). Generally, to establish direct service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Psychoses are included among the enumerated chronic diseases. The term "psychosis" is defined as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition of the American Psychiatric Association (DSM-5): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to Another Medical Condition; (d) Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; and (h) Substance/Medication-Induced Psychotic Disorder. See 38 C.F.R. § 3.384 (2017). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A lay person is competent to report on the onset and recurrence of his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claims. Factual Background and Analysis Psychiatric Disorder The Board notes that the Veteran filed a claim for PTSD and testified that this disability had been diagnosed and made part of the record. However, upon review of the record, the Veteran has not been shown to have a confirmed diagnosis of PTSD under the DSM. Therefore, the Board will discuss the issue of psychiatric disorder as it relates to diagnoses other than PTSD. The Board also notes that the Veteran has made statements, reinforced by a letter from a physician, that indicate that the Veteran suffered from a psychiatric disorder prior to service. See December 1983 handwritten medical note. Given that no psychiatric disorder was noted upon entry and the evidence that it existed prior to service is not clear and unmistakable, the Board concludes that the Veteran did not have a psychiatric disorder that existed prior to service. In addition, the Veteran's representative argued that the Veteran entered service without defect. See Hearing Transcript dated June 2017. 38 C.F.R. § 3.304, 3.306(b) (2017). The Veteran asserts that service connection is warranted for his psychiatric disorder as he contends its onset occurred service. During the June 2017 hearing, he testified that two sexual assaults and one physical assault occurred in service. The service entrance examination does not note any psychiatric condition or symptoms. The service treatment records do not indicate any complaints of, or treatment for, symptoms related to a psychiatric disorder. The service exit examination indicates that there was no psychiatric disorder. The service records document the Veteran was involved in a fight, but there is no suggestion this was considered an attack on the Veteran or that he was in some way victimized by an assailant. A September 1982 VA medical certificate reflects the Veteran's chief complaint as "I'm paranoid." He was diagnosed with paranoid schizophrenia. During this visit, it was noted that this was the first time the Veteran sought psychiatric treatment. He reported that while in service he had a dream or fantasy that a man had oral sex with him. A July 1984 letter from a VA doctor states that the Veteran had been under medical care with that specific doctor since February 1982. In a June 2003 private evaluation, the Veteran reported that he became involved in a physical confrontation when he refused to answer an interrogator's questions and it was noted that he received one article 15 for sleeping while on guard. The onset of psychiatric symptoms was noted to have happened in 1982. The Veteran authored and submitted several statements regarding his contentions and one lay statement he did not write. A lay statement dated April 2010 attests that the Veteran's behavior changed after service. The Veteran's sister in law stated that the once friendly Veteran appeared distant and did not visit with the family as often. She stated that she noticed the behavioral change in 1978 or 1979 and that his behavior changed specifically with her in 2009, as he would get angry and have outbursts. The Veteran's sister in law noted that there have been deaths over the years since the Veteran has been out of service and suggested that could have impacted his life. An August 2010 VA medical outpatient note reflects a diagnosis of chronic schizophrenia. The Veteran underwent a private psychotherapy examination in November 2010. There, he reported feeling anxious in response to being stalked by drug dealers and "sexual assailants." He reported that there was one specific assailant whose intent to "inflict malicious mayhem" on him led him to experience PTSD (self-reported) and paranoia. He described receiving unwanted oral sex from a male officer. He denied being a homosexual and reported not being a homosexual is what made him feel that he was sexually assaulted. He described being punched in the head while in Germany in 1978 by a person who lived in the same city as he did in California, stating that this person was angry that he called the police on him back home. He reported hearing voices, stating that they talked about him in Chinese. The private examiner described the Veteran's speech and behavior as disorganized. The private examiner diagnosed the Veteran with paranoid schizophrenia. During the appeal period the Veteran has been diagnosed with chronic schizophrenia and paranoid schizophrenia. Therefore, the Veteran has a current diagnosis. The Board finds that the Veteran's current psychiatric disorder is not directly connected to service, and is not presumed to be connected to service as a chronic disease arising within one year of separation. The Veteran's service treatment records and VA medical records do not indicate that he suffered from a psychiatric disorder during or within one year of separation from service. Likewise, no probative treatment records or lay contentions support the existence of a psychiatric disorder at or within one year of separation from service. The Veteran's service treatment records do not point to any complained of or noted symptoms of a psychiatric disorder. The earliest medical treatment record of evidence to indicate any treatment for a psychiatric disorder is dated September 1982, more than one year after service. There is a letter from a VA doctor indicating the Veteran started treatment in February 1982, again more than one year after service. The Veteran has made several contentions, including allegations of in-service sexual assaults and physical assault. As set forth below, the Board finds the Veteran's allegations regarding any onset of symptoms while in-service or being assaulted during service to be unreliable and not credible. As noted above, there is not one service treatment record of evidence to indicate that the Veteran complained of and or was treated for any injuries or trauma considered related to an assault or exhibited any symptoms related to a psychiatric disorder. In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). VA may not discredit a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; however, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Veteran's claimed illness is shown to be productive of disorganized speech and behavior, together with hallucinations. Much of his testimony in 2017, appeared to be a product of those symptoms given his tone and demeanor. Placed in the context of all the records, his testimony and statements are not considered credible. The Board has considered whether a medical examination and opinion would be helpful in adjudicating this claim, but finds that the Veteran's unreliable and incredible statements, in conjunction with his service and post-service treatment records- which do not corroborate his assertions regarding in-service incurrence- is not likely to result in any probative or favorable medical opinion evidence. See generally Reonal v. Brown, 5 Vet. App. 458, 461 (1993); see also Miller v. West,11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record); contra Charles v. Principi, 16 Vet. App. 370 (2002) (VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus). In addition, a medical examination is not required as the Board finds the record does not indicate that the disability had a causal connection to or was associated with his active military service. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a VA examination and/or opinion is not warranted in this case. The Board notes that the Veteran's sister in law is competent to report behavioral changes she observed in the Veteran, as that requires only personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, she is not competent to attribute these observed changes as part of a psychiatric diagnosis, as she has not demonstrated that she is an expert in determining the etiology of psychiatric disorder and is a layperson in this regard. In arriving at this conclusion, the Board has carefully considered the lay assertions of the Veteran, his sister in law, and the legal argument made during the June 2017 hearing. The Board understands the Veteran's belief that his disability warrants service connection. However, the VA medical treatment reports and service treatment records the Board found most probative, outweigh the Veteran's contention that his psychiatric disorder should be service connected. Eye Condition The Veteran argues that service connection is warranted for his eye condition as he contends he was hit in the head during a physical assault that occurred in 1978, while in service. As a result of this altercation, he testified that he saw spots and then blacked out and developed a large welt. He testified that he sought treatment three days after the physical assault, and that he attempted to be treated, but "they just sent me back to duty like it was nothing." He testified that after service he sought treatment in 1986 or 1987. See June 2017 Hearing Transcript. The Veteran's entrance examination, dated December 1977, does not note any relevant symptoms. A November 1979 service treatment record indicates that the Veteran's chief complaint was frontal headache. Lower abdominal pain was also noted. His eyes were within normal limits and the impression stated was eye strain, with a plan to have the Veteran follow up with the eye clinic. In a December 1979 optometry service treatment record, the Veteran was stated to be within normal limits, with a diagnosis of mixed astigmatism. He indicated that he had not had any injury to his eyes. A February 1980 service treatment record indicates the Veteran was given a fitting for his spectacles from the eye clinic. In a service treatment questionnaire dated May 1980, the Veteran indicated he had never had a serious injury to the head, face, or jaws. In a subsequent service treatment record also dated May1980 the Veteran sought treatment, reporting that he was in a fight and the only injuries noted were bite marks to his left nipple. The Veteran's exit examination dated November 1980 stated that his eyes were normal. With respect to the reported causes of reported injury to his eyes, the Veteran has provided a few theories. In an August 1983 VA consultation sheet the Veteran described two injuries, one involving grease spattering in his eyes 10 years prior and another involving glass from a light bulb entering his eyes. In a November 1983 medical nursing care and observation note, it was noted that the Veteran presented with neck pain from being in a car accident that day. A radiographic report also dated November 1983 indicates that the Veteran's spine was examined and there was no evidence of fracture or dislocation. In a December 1983 VA medical record and certificate, the Veteran presented with pain in his eyes due to a reported accident where he changed a light bulb that broke. The Veteran reported that he had broken pieces of glass from the bulb in his eyes and that this incident happened the day prior. Upon examination, both of his eyes were within normal limits. The examiner noted that there was no glass in the Veteran's eyes and that he was a chance ETOH abuser. The diagnosis stated was no organic pathology or trauma. During this visit, the Veteran also described a car accident, stating it happened a week prior, where he reported that he got glass in his both eyes. In a Department of Rehabilitation Health Questionnaire dated October 2002 the Veteran indicated that he was not then, nor had he ever received medical treatment for his eyes/visual problem. There are two VA optometry notes dated November 2009. A trainee prepared the first one and a resident intern prepared the second one after reviewing the medical records, the preliminary diagnosis plan with the trainee and examining the Veteran. The November 2009 VA trainee optometry note indicates that the Veteran was a new patient whose chief complaint was losing his glasses a couple of months prior and how his vision is blurred when reading. It was noted that his mother had glaucoma. When discussing eye injuries, the Veteran reported an incident where hot cooking oil made contact with his eye and being hit in the left temple/head in 1978 while in service. The tentative assessment and plan indicated the following: compound myopia + astigmatism in the right eye (CMA OD), compound hyperopia + astigmatism in the left eye (CHA OS), presbyopia, glaucoma suspect large c/d ratios, and chorioretinal scar in the left eye (OS) secondary to trauma in 1976. The trainee made a notation, to refer to the supervising resident's notes for final assessment and plan. The November 2009 VA resident optometry note illustrates that the Veteran was diagnosed with glaucoma suspect based on cupping OU and chorioretinal scar in the left eye (OS). An April 2010 VA student/trainee optometry report noted the purpose of the visit as a pressure check. It was noted that Veteran's mother went blind after suffering glaucoma. The tentative assessment and plan indicated the following: glaucoma suspect ou, not visually significant cataracts ou, refractive error with presbyopia ou, chorioretinal scar os- per previous opt note and mild mgd ou. The trainee made a notation to refer to the supervising resident's notes for final assessment and plan. Both the optometry student and the optometry resident signed off on this report. Upon review of the record, there was no separate medical report from the resident. In an April VA 2010 urgent care note, the Veteran complained of headaches. Upon examination of vital signs, the results were pupils are equal, round and reactive to light and accommodation, extraocular movements are intact (PERRLA, EOM). The Veteran reported having left orbital fracture. The examiner noted that the Veteran had an eye examination the day prior and suspected glaucoma, meibomitis, and incipient cataracts. During the appeal period the Veteran has been diagnosed to have various eye maladies, including glaucoma and chorioretinal scar. As such, the Veteran has a current diagnosis. The remaining questions before the Board is whether there is an in-service disease or injury to which such disorder is etiologically related. The Veteran's entrance examination indicated that the Veteran did not have an eye condition upon entering service. His service treatment records do not indicate any complaints of an eye condition. The two service treatment records that mention the eyes both indicated that his eyes were within normal limits, with one record indicating eye strain and the other mixed astigmatism. Throughout service, the Veteran denied any injury to his eyes, including during the time he was diagnosed with astigmatism. There is nothing of record from service to indicate that the Veteran sustained a head or eye injury as a result of a physical altercation. The only service treatment of record that illustrates a fight in service, lists the injury as bite marks, distant from the eyes. The exit examination indicated that the Veteran's eyes were normal. The Veteran testified that after service he first sought treatment for his eye condition in 1986 or 1987-six or seven years after separation. The earliest treatment record post service in evidence is dated August 1983, nearly three years after service. In addition, the injury to the Veteran's eyes is unclear. He has contended that hot oil/grease entered his eye in 1973, that he was physically assaulted in 1978 in Germany by someone he knew from back home, and that in 1983 glass entered his eyes, first as a result of an automobile accident and then again as a result of a broken light bulb. In determining credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). VA may not discredit a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; however, personal interest may affect the credibility of the evidence. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Here, the Board finds the Veteran's allegations regarding the cause of his eye condition, including being physically assaulted during service to be unreliable and not credible. The Veteran has not provided a consistent medical history. He also has contended that he was injured on two separate occasions when glass got into both of his eyes. Yet, the medical records of evidence do not indicate any treatment consistent with such an injury. The earliest record of evidence to indicate any treatment for the eyes is dated August 1983, nearly three years after service. For these reasons, the Board does not find the Veteran's statements regarding in-service injury to his eyes to be credible and places no probative value on them. The Board notes that the November 2009 VA trainee indicated a correlation between the physical assault the Veteran contends occurred while in service and his current eye condition. The VA trainee referred to the physical assault as trauma that occurred in 1976. The Veteran was not in service in 1976 and since the Veteran reported that the physical altercation occurred in 1978, the Board will take the reference to 1976 as a clerical error. The VA trainee specifically labeled her assessment as tentative and specifically noted that the notes of her supervisor were to be referred to in order to see the final assessment and plan. In addition, the resident/supervisor made no attempt to provide any indication of a medical opinion in her report and the final diagnosis only consisted of two eye conditions, and not the five tentative diagnoses the trainee stated. For all these reasons, the Board does not find the VA trainee's tentative opinion probative. There is no credible, probative medical opinion of record regarding his eye condition. Here, a medical opinion regarding the Veteran's eye condition is not required because the credible record before the Board does not indicate that the disability had a causal connection to or was associated with his active military service. There is no indication beyond the disorganized, non-credible, conclusory, and generalized statements by the Veteran of an event, injury or disease in service to which the claimed disability may be associated. See 38 C.F.R. § 3.159(c)(4); see also Colantonio v. Shinseki, 606 F.3d 1378 (Fed.Cir.2010); Waters v. Shinseki, 601 F.3d 1274 (Fed.Cir.2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In sum, the probative evidence establishes that the Veteran's eye condition did not first manifest until years after service, and is not related to any in-service disease or injury. In reaching this determination, the Board is mindful that all reasonable doubt is to be resolved in the Veteran's favor. However, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The petition to reopen the claim of entitlement to service connection for a psychiatric disorder is granted. Service connection for a psychiatric disorder, to include schizophrenia is denied. Service connection for an eye condition is denied. ______________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs