Citation Nr: 1754914 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-31 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for scars on the right hand. WITNESSES AT HEARING ON APPEAL The Veteran and his former spouse ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to September 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In November 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The competent and probative evidence of record reflects the Veteran's psychiatric disorder clearly and unmistakably pre-existed active duty service and clearly and unmistakably was not aggravated by his active duty service. 2. The competent and probative evidence of record reflects that the Veteran sustained a right hand injury during his active duty service, resulting in scars on the middle and fourth fingers; there is no evidence of neurological impairment (such as numbness) related to these scars. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1111, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for service connection for scars of the middle and fourth fingers of the right hand have been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although all the evidence has been reviewed, the Board is not required to discuss each piece of evidence in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board's analysis herein will focus on what the most relevant and salient evidence shows, or fails to show, with respect to the Veteran's claim. Legal Criteria for Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). In general, in order to prevail on the issue of service connection 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, 1167 (Fed. Cir. 2004). Veterans will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Only such conditions as are recorded in examination reports are considered as "noted." Id. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability both preexisted service and was not aggravated by service. Id. Factual Background and Analysis Psychiatric Disorder The Veteran claims he has a psychiatric disorder which began during his active duty service. At his October 1986 entrance examination, the Veteran was found to be psychiatrically normal. During service the Veteran was subject to several disciplinary actions for, among other things, disrespecting a noncommissioned officer, aggravated assault, spousal abuse, and failing to be at his place of duty. A July 1989 General Counseling Form documents that the Veteran was being notified of his supervisor's intent to initiate separation proceedings, and in August 1989, a determination was made to separate the Veteran from the military due to a pattern of misconduct. On August 6, 1989, the Veteran attempted suicide and sought emergency medical treatment. The Veteran told medical professionals that he had an affair two years prior and that his wife was now paying him back by seeing another man; the night he attempted suicide, his wife left to see this other man, and the Veteran took Sudafed, Actifed, and other white pills and lacerated his arms. When his wife came home that night, he choked her into unconsciousness. It is unclear from the record how the Veteran ended up in the emergency room following these incidents. The initial nursing assessment was depression related to marital difficulties, suicidal and homicidal gestures, potential withdrawal related to alcohol ingestion, alteration in sleep related depression, and nutritional defect related to depression. The Veteran was thereafter hospitalized for 24 days. During his August 1989 hospitalization, the Veteran reported he had been drinking up to twelve beers a night. It was noted that the Veteran had dysfunctional family patterns on both sides and stated that his father was an alcoholic and violence was the only thing he knew. The Veteran acknowledged a suicide attempt four years prior; at that time, he took pills, sought medical attention, and was released the same day. The Veteran acknowledged marital problems and indicated he had abused his wife for the past three years; he also reported financial difficulties and stated his mother attempted suicide twice in the past few months and that his father was stabbed the previous week and hospitalized with a punctured lung. At discharge on August 30, 1989, diagnoses were adjustment disorder with mixed emotions and suicidal ideations, borderline personality disorder, and superficial laceration of the left wrist. VA treatment records reflect the Veteran has reported he had been depressed since 1984 and had "never been happy in [his] entire life." He stated he jumped in front of a car in 1982 and broke his leg and that in 1984 he attempted suicide by overdosing on pills. His mother passed away in approximately 2004, which devastated him and led him to "kill the pain with drugs." In 2006, the Veteran reported to the emergency room suicidal with a plan to shoot himself; he indicated that his mother had recently died, which made him depressed, and that he had been abusing cocaine for the past three years. In approximately that same year, his 20 year marriage dissolved due to a long history of infidelity. The Veteran was diagnosed with multiple sclerosis in 2008, but indicated he had symptoms of this disease as far back as 1998. At a January 2011 VA examination, the Veteran reported that his father physically and mentally abused him, his siblings, and his mother for as long as he could remember and continued until his parents divorced when he was fourteen. He described his childhood as "not good" and indicated his transition from Puerto Rico to the United States at age fourteen was difficult. The examiner noted that the Veteran reported childhood abuse from his father (physical and emotional), early onset substance abuse (cocaine at age fourteen), and family history of mental illness (depression and substance abuse), which are all significant factors for mental illness, and all which were present prior to military service. The Veteran denied problematic use or consequences from drinking while in service, yet his service treatment records contradict this as Librium was used to help him detox while in the psychiatric ward. Service records also demonstrate the Veteran consumed a twelve pack of beer prior to his suicide attempt; when asked about this, the Veteran said "[I] can't remember really, if it says so I probably did." At his November 2013 hearing before the Board, when asked about suicide attempts the Veteran only reported the in-service 1989 attempt and did not mention the 1984 suicide attempt prior to service. He also testified that prior to the 1989 suicide attempt, everything was fine, his life was going great, and he never had depressive disorder. At a February 2016 VA examination, the Veteran described his suicide attempt in the military and indicated that when his wife had left the house, he slit his wrists and was thereafter found unconscious in a pool of blood. He stated he was unsure who found him and that it could have been his wife or she may have called someone to go to the house. This account is not consistent with the Veteran's military records of the event, which indicate that he choked his wife into unconsciousness when she returned home that evening. The Veteran's records also document "superficial" lacerations, which are not consistent with the loss of blood that he described during this examination. When asked about mental health symptoms prior to his suicide attempt, the Veteran specifically denied feeling depressed or anxious and reported he was an "excellent soldier," however, this is also contradicted by his military records which reflect that he was subject to a number of disciplinary actions. The examiner concluded that the Veteran's current depressive symptoms appeared to be related to his current life situation and ongoing psychological stressors (lack of romantic relationship, living alone, inability to work due to multiple sclerosis, financial stressors). In July 2017, a VA psychiatrist reviewed the Veteran's claims file and provided a medical opinion regarding the Veteran's depression. The psychiatrist determined that the Veteran's psychiatric disorder clearly and unmistakably preexisted service. The psychiatrist noted the Veteran's admission that he had never been happy his entire life, with an onset of depression in 1984, and medical records documenting an impulsive suicide attempt or gesture in 1984, and a report of jumping in front of a car in 1982. The psychiatrist also determined that the Veteran's psychiatric disorder was clearly and unmistakably not aggravated by his active service, relying on the similarity of the Veteran's pre-military, military, and post-military lifestyle, with evidence of depression, significant problems with mood and personal relationships (pre-military and during service), and with work and substance abuse during or after service, as reflected in multiple records. Based on a thorough review of the evidence as described above, the Board finds that service connection for a psychiatric disorder must be denied. The competent and probative evidence of record reflects the Veteran's psychiatric disorder clearly and unmistakably pre-existed active duty service and clearly and unmistakably was not aggravated by his active duty service. The July 2017 VA medical opinion which stated such is the most convincing evidence that is of record. The examiner considered all relevant evidence and provided a complete rationale. Therefore, the Board concludes that the criteria for service connection for a psychiatric disorder have not been met. In finding so, the Board notes that it does not find the Veteran's statements in support of his claim to be credible as there are multiple inconsistencies in the record, and therefore, affords them very little probative weight. See Caluza v. Brown, 7 Vet. App. 498 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The Board has considered the benefit the doubt doctrine; however, as the evidence preponderates against his claim, it is not applicable. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Right Hand Scars The Veteran is claiming service connection for right hand scars and numbness. He has claimed that sometime between 1987 and 1989 that the end of his right middle finger was cut off and reattached and that he experienced a laceration to his right fourth finger. He has stated he was treated for these injuries at Bay-James Hospital in Fort Polk, Louisiana. Records obtained from this facility reflect the Veteran was treated for bilateral wrist lacerations in August 1988; however, there is no evidence he was ever treated at that facility for a right finger injury. Notably, service connection is already in effect for bilateral wrist scars. The Veteran also submitted a statement from L. S. indicating that a right hand injury occurred in 1988; however, she did not claim to be an eyewitness to this account. The Veteran's October 1986 entrance examination does not reflect he had any scars on his right hand. August 1989 service treatment records document that the Veteran had incurred a right hand injury and a separate note reflects he had scars on his middle and fourth right fingers. There is no evidence of reattachment of any tips of his fingers as the Veteran has claimed. A January 2011 VA examination reflects scars on the middle and fourth right fingers, but there is no evidence of any symptoms of numbness or neurological effects related to these scars. Accordingly, service connection for scars of the middle and fourth right fingers, without evidence of neurological impairment, is granted. VA's Duties to Notify and Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA's duty to notify was satisfied by a number of letters dated November 2009, July 2011, and April 2015. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's service treatment records, VA treatment records, and identified private records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board acknowledges that the Veteran reported he had filed for Social Security Administration (SSA) disability benefits because he felt he was unable to work due to his multiple sclerosis and a back disability. However, given that the Veteran did not seek SSA disability for his claims on appeal, VA did not obtain and does not have a duty to obtain those records. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (holding that VA only has a duty to assist by requesting relevant records from SSA) (emphasis added). The Veteran has also been afforded several VA examinations and VA has obtained medical opinions in connection with his claims. 38 C.F.R. § 3.159(c)(4); See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that in the February 2017 medical opinion that the VA psychiatrist inadvertently used the terminology "clear and convincing," at times rather than "clearly and unmistakably." However, the Board finds this was unintentional as the psychiatrist was responding to the Board's specific request for medical opinions, which consistently used the terminology "clearly and unmistakably." Reading the medical opinion as a whole, and considering the language used in the request for a medical opinion, the Board concludes that this is harmless error as the psychiatrist meant to mimic the terminology used in the Board's request for an opinion. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran. The Board also notes that the RO has substantially complied with all of its June 2014 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, the Veteran was provided with a has not claimed any failure on the RO's part to substantially comply with those remand directives. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). (CONTINUED ON NEXT PAGE) ORDER Service connection for a psychiatric disorder is denied. Service connection for scars of the middle and fourth fingers of the right hand is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs