Citation Nr: 1754948 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 13-33 982A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder with depression and posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of bilateral toe surgery. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from October 1979 to September 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in-Detroit, Michigan. These matters were previously before the Board in February 2016 when they were remanded for the Veteran to be scheduled for a Board hearing, and again in January 2017 for further development. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDINGS OF FACT 1. The most probative evidence of record supports a finding that the Veteran has a personality disorder and that he does not have an acquired psychiatric disability causally related to, or aggravated by service. 2. The Veteran's service treatment records are negative for complaints of, or treatment for, his toenails and/or toes. 3. The most probative evidence of record is against a finding that the Veteran had toe surgery in service and/or toe surgery after service which was due to, or aggravated by, service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include bipolar disorder with depression and posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C.A. § 1101, 1112, 1113, 1131, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304 (2017). 2. The criteria for service connection for residuals of bilateral toe surgery have not been met. 38 U.S.C.A. § 1101, 1112, 1113, 1131, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," like psychoses, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease," whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Acquired Psychiatric Disability The Veteran contends that he has an acquired psychiatric disability due to service because while he was in the military, there was an atmosphere where "all they talked about was violence" and they "always talked about killing people" to include the songs which they sang during drill instruction. He contends that his mental problems began in service with thoughts of going to war. He contends that he has posttraumatic stress disorder (PTSD) as a result of thinking about having to kill someone if he went to combat, even though he served during peacetime. During the pendency of the claim, the Veteran has been diagnosed with a variety of mental conditions to include personality disorder, PTSD, mood disorder, depression, and bipolar disorder. As an initial matter, the Board notes that congenital or developmental defects such as personality disorders and mental deficiency are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. As such, service connection cannot be granted for the Veteran's personality disorder. The Board acknowledges that service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and/or superimposed upon a personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127; Carpenter v. Brown, 8 Vet. App, 240 (1995). However, the evidence does not support such a finding. The Veteran entered active duty in October 1979. Service treatment records (STRs) in 1980 reflect that the Veteran wished to be discharged from service. A July 21, 1980 STR reflects that the Veteran was awaiting an administrative separation from service due to either a Chapter 5 (Convenience of the Government) or a Chapter 13 (Separation for Unsatisfactory Performance) and that he threatened suicide because he thought it would "speed up" the separation process. Another STR reflects that his threat to kill himself came about when there was a delay in his administrative separation process. It was noted that he was obviously paranoid and that he did not feel that he could control his behavior. It was also noted that the Veteran reported that he had previously seen a psychiatrist because at age 14 he had burned his house down because he was mad at his parents. A July 31,1980 STR reflects that a referral was made to "help determine differential diagnosis". After testing (Minnesota MultiPhasic Personality Inventory), clinical interview, observation of group therapy, and observation of the Veteran on the ward, the psychiatrist noted that the Veteran was angry with the Army and "would go to almost any length to be discharged", his response to group therapy was childish and hostile, and that he attempted to solicit others to support his negative view of the military and became angry when they did not. The final diagnosis was personality disorder, mixed type. August 1980 STRs reflect that the Veteran was again seen for treatment and diagnosed with mixed personality disorder with explosive, passive aggressive and paranoid features, and adjustment reaction. The records note that the Veteran wanted to be discharged from the military and wanted the paperwork to move "faster". The Veteran was separated from service in September 1980. There is no probative (competent and credible) evidence of record which reflects that it is as likely as not that the Veteran has a current psychiatric disorder due to, or aggravated by, active service. There is also no competent credible evidence of record that the Veteran had a psychosis which manifested to a compensable degree within one year of separation from service. Various clinical records reflect that the Veteran reported that he was hospitalized at age 14 after he burned down his house because he was mad at his parents. They also reflect that he reported that he had been stabbed at age 14 in the chest; that, as a child, he was physically, emotionally, and verbally abused by one of his siblings; and that he began using alcohol at age 11, marijuana at age 12, and cocaine since high school. 1994 and 1995 records reflect that the Veteran was treated for substance (cocaine and alcohol) abuse mood disorder with underlying dysthymia. When giving his history, the Veteran reported that he had been discharged from service due to poor performance and that he was "immature and he had marital problems and he was not really military minded." He reported that after separation from service, he had worked in social services, as a correctional officer, in a shoe store, and as a nursing aide. The Veteran reported that he was under stress from a girlfriend because he found her using drugs and drinking (1995). He reported that he began using alcohol and marijuana as a young teenager and by high school he was using cocaine; he also reported suicide attempts at ages 16, 19, and 23. The Veteran continued to be seen for cocaine dependence, THC dependence, and alcohol abuse (e.g. see 1997 and 1998 records). In 1999, the Veteran was treated for depression, adjustment disorder (depressed), and cocaine abuse and substance induced mood disorder. It was noted that the Veteran had prior admissions for substance abuse but had not had any major psychiatric problems. A February 2004 Kalamazoo Psychiatric Hospital record reflects that the Veteran was diagnosed with major depression with psychosis upon admission. It reflects that the Veteran was under stress with financial problems and an eviction notice. The Kalamazoo records reflect a final diagnosis after three weeks of treatment as "major depression single episode" without psychosis. A September 2006 Central Diagnostic and Referral Services, Inc. Recovery Assessment record reflects that the Veteran reported that he "usually becomes anxious when under stress which leads to depression and isolation and then using." He also stated that he "has had problems with depression for most of his life." 2009 Community Mental Health records reflect that the Veteran reported that the abuse at the hands of his sister "had a big impact on my life; I would get discouraged and not pursue opportunities." He also stated that he tried college but "gave up", and that he tried the Army but "just couldn't cope". The Veteran was diagnosed with major depressive disorder, PTSD due to his family abuse, polysubstance dependence and a rule out diagnosis of borderline personality disorder. A May 2010 VA examination report reflects that the Veteran's depression is not caused by or a result of his military service. The examiner (S.P.) stated as follows: Foremost in terms of diagnoses is an Axis II personality disorder, which is very longstanding in nature and most explanatory as to his behavior and history. The [Veteran's] Axis I diagnosis of Depression NOS is of more recent origin but onset was subsequent to his military experience. Obviously the issue of substance abuse is probative and variable over time but relates primarily to his personality disorder. The claims file also includes an April 2017 VA clinical opinion from the same examiner (S.P.), who again reviewed the evidence of record, to include the STRs and private records. Dr. S. P. stated as follows: The aggregate information available strongly implicates significant, longstanding psychopathology that predates the veteran's entrance into the military. The veteran's personality disorder existed prior to his military service. Personality disorders are, by definition, stable, dispositional, and lead to self-perpetuated psychological distress and difficulties. As such, there is no causal or temporal link to his military service. Rather, this condition is an enduring, chronic maladaptive feature of his personality. Therefore, it is not caused by or aggravated by his military service. Given that the disorder itself will, again by definition, lead to psychological distress or impairment, his personality disorder is not aggravated by his service, but rather his difficulties are considered to be representative of the natural consequences of such a disorder. [The Veteran] seems to often inflexibly apply a rather limited repertoire of behaviors in relating to others, coping with stress demands, taking care of himself and living his life. This chronic personality and behavioral pattern seems to provoke new difficulties, perpetuate existing dilemmas, and may increase self-defeating interactions (and withdrawal) with others. The veteran's continuing use of substances further complicates the clinical picture and obscures a clear differentiation of the source of many of his symptoms while he actively uses. With this back drop the evidence is not compelling that Bipolar Disorder was or is a fitting diagnosis for this gentleman. The Board finds this opinion highly probative and persuasive. The opinion provider acknowledges that the Veteran's mental health issues have been variously diagnosed and concludes that the best diagnosis for his psychiatric symptomatology is a personality disorder. Further, the examiner indicates that further clear differentiation of the etiology of his psychiatric symptoms is not possible due to the Veteran's continued substance use. The Board acknowledges that the claims file includes records from Health Minds Comprehensive Psychiatric Care indicating that the Veteran started treatment in March 2016 as well an initial assessment which reflects a statement by a social worker (A.W.) that the Veteran has been diagnosed with anxiety disorder, bipolar disorder and PTSD, and a record by a physician's assistant (A.M.) that the Veteran reported that he developed PTSD from his military background. These records do not include a medical opinion linking any currently diagnosed mental health disability to service. Additional VA records reflect that the Veteran has a mood disorder due to childhood trauma (April 2016), anxiety disorder related to childhood abuse by older sisters (January 2014), generalized anxiety disorder (March 2013), alcohol dependence (September 2012), and depression (May 2010). The Board finds that opinions of Dr. S.P. are the most probative of record. They support a finding that the Veteran has a personality disorder and that his psychiatric symptoms (however diagnosed) are manifestations of the natural progression of that personality disorder and are not acquired psychiatric disabilities which are as likely as not caused by, or aggravated by, service. Finally, the evidence does not support a finding that the Veteran has a substance abuse disability causally related to, or aggravated by, a service-connected disability. In a November 2017 brief, the Veteran's representative argued that the Board must consider that the Veteran was sound upon entrance and that the Board must rebut the presumption of soundness in order to deny the Veteran's claim for service connection. The Board disagrees. The Veteran is presumed sound upon entrance and the presumption of soundness has not been rebutted. Accordingly, this is a claim for direct service connection. To the extent that the medical evidence suggests that a personality disorder preexisted service, as noted above, a personality disorder is not a disease for which service connection may be granted. 38 C.F.R. §§ 3.303. In sum, the Veteran was diagnosed with a personality disorder in service and has been diagnosed with a personality disorder post service. While he has had episodes of depression and/or adjustment difficulties, he has not been shown by the most probative evidence to have any such disability during the pendency of the appeal which is causally related to, or aggravated by, active service. Moreover, any diagnosis of PTSD related to service lacks probative value because there is no competent credible evidence of record which supports a diagnosis under DSM-IV or DSM-5 (to include that the Veteran experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others). Rather, the Veteran has been diagnosed with PTSD due to childhood abuse. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Bilateral Toe Disability The Veteran testified at the 2016 Board hearing that both his big toes are missing their toenails due to two surgeries (one in surgery and one post-service). He contends that surgery to remove his toenails was necessary because, while in service, his boots rubbed against his toenails during running and marching and that the toenails became loose. The evidence reflects that the Veteran had matricectomies more than a decade after separation from service. The Veteran's available service treatment records (STRs) are negative for any complaints of, or treatment for, the toes. A search for in-patient records reflects that there are no inpatient hospital records for toe surgery in service (see May 2017 VA 21-3101). Moreover, there is no competent clinical opinion that the Veteran's toe-nails were as likely as not removed due to his boots rubbing against them in service. Thus, as noted in more detail below, service connection for residuals of bilateral toe surgery is not warranted. The Veteran contends that surgery for his toes occurred in June or July 1980. As noted above, the Veteran's STRs are negative for surgery for his toes. In addition, July 1980 STRs reflect that the Veteran's past medical history was significant for normal childhood illnesses and a stab wound to the chest, but no surgery to the toes was noted. The Board finds that if the Veteran had had surgery as recently as while in service, to include the month prior, it would have reasonably have been noted. It also reflects that the Veteran reported that he had never had any operations. Again, if the Veteran had had surgery on his toes, it would be reasonable for him to have reported it rather than deny such. The Veteran was hospitalized for his personality disorder from July 21, 1980 through August 1, 1980, and then again from August 6, 1980 through August 8, 1980. None of these records reflect surgery on his toes. He was separated from service on September 2, 1980. There is no indication in the records that the Veteran would have undergone a surgery during any of this time and the copious records with regard to his hospitalization are negative for any complaints of the toes. His Nursing Assessment and Care Plans reflect that he reported no physical health problems and that one of his hobbies was basketball. Subsequent to service, a November 1995 VA hospital summary record reflects that the Veteran's physical examination was "totally within normal limits" and that his past medical history included a stab wound at age 14 and that there was "otherwise no significant medical problems in the past." Thus, more than a decade after separation from service, there was still no indication of toe surgery or complaints of the toes since service. A February 1997 VA record reflects that he was seen for athlete's foot; the report is negative for a toe disability. The earliest clinical evidence of a toe disability is not until 1998, 18 years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). A September 1998 VA record reflects that the Veteran was seen for the first time with complaints of foot fungus and that his great toe nails continue to grow after having had permanent matricectomies. The September 1998 VA record reflects that the surgery was done at Westside VA, but the Veteran says that this is incorrect. He has stated that he was never treated at Westside VA ( A review of records is negative for surgery prior to 1998 at a VA facility). Regardless, there are no VA or military records which reflect treatment for the toes prior to 1998. October 1998 VA records reflect that the Veteran had surgery for total matricectomies for regrowth of hallus. The Board finds that the STRs, which are contemporaneous to service, are more credible than the Veteran's statements made years after service and which were made for compensation purposes. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) The Veteran's statements as to surgery in service are inconsistent with the contemporaneous evidence of record in service and with the 1995 and 1998 records. In making such a credibility finding, the Board is not implying that the Veteran has any intent to deceive. Rather, the Veteran may be simply mistaken in his recollections due to the fallibility of human memory for events that occurred years earlier, and given his past history of extensive drug and alcohol use. In sum, the evidence is against a finding that the Veteran had toenail surgery in service and/or due, in any part, to service; thus, service connection for residuals is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder with depression and posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for residuals of bilateral toe surgery is denied. ______________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs