Citation Nr: 1801412 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-27 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from September 1985 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Jurisdiction is now with the RO in New York, New York. In February 2014, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). In March and December 2015, the Board remanded the claim for additional development. The claim has been returned to the Board for further appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. While the Veteran had anxiety and depression related symptoms in service, mental health examination at the time revealed no evidence of any psychopathology. 2. The Veteran's currently diagnosed mental health disabilities, including drug-induced psychosis and schizophrenia, were first manifested many years after his service, around 1990 due to marital issues, and have not been medically related to his service. CONCLUSION OF LAW The criteria for the establishment of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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). II. Service Connection The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder as a result of his active duty service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection for certain chronic diseases, such as psychosis, may also be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service treatment records (STRs) in November 1984 indicate that the Veteran was evaluated for drug abuse prior to active service. The examiner found that he socially used marijuana, but drug abuse was not found. In April 1986, the Veteran presented for evaluation at the Mental Health Clinic. There was no indication of psychosis or suicidal or homicidal ideation. The Veteran was given a deferred diagnosis of "pending analysis psychological testing." He also reported "nerve" problems while in custody, and the examiner noted anxiety and anger. There was no evidence of any psychopathology in his June 1986 examination, which was conducted a month before separation. The Veteran denied personal or family history of psychosis, he denied drug dependence and had no stigmata or drug use on clinical examination. Alcohol use was noted upon examination. Post-service medical treatment records reveal that the Veteran was diagnosed with cocaine dependence around June 2002, schizoaffective disorder in November 2005, and panic disorder without agoraphobia in November 2005. During this time, the Veteran reported that in 1991 his wife left him, he stopped working, isolated himself from family members and began to use cocaine. His mother admitted him into a psychiatric hospital and he was diagnosed with a drug-induced psychosis. After being discharged from the hospital, he did not take the medication and eventually went to jail for 7 years. After being released from jail, he saw a psychiatrist as he self-medicated with crack cocaine. Records reveal a long history of substance abuse and homelessness. In sum, the Veteran's post-service treatment records almost exclusively linked his acquired psychiatric disorder to drug abuse, and not his active duty service. The Veteran was afforded a VA examination in March 2011. The Veteran reported being hospitalized for one week in 1990 for depression, and noted that, while there, he was diagnosed with Schizophrenia. He indicated that he had at least 50 hospitalizations at private hospitals after his wife left him because he could not adjust. He reported that his sister was in the Air Force, and she told him that his problems were because of the military. The Veteran also noted that he participated in criminal activity in which he knew he should not have. The examiner indicated that he was homeless, unemployed, had been hospitalized multiple times for psychiatric and substance abuse problems, and had a long legal history. He had multiple current diagnoses, but the examiner noted that STRs did not indicate treatment for a psychiatric disorder during military service. Additionally, assessments conducted upon entry and prior to discharge did not indicate any psychiatric symptoms. The Veteran was diagnosed with drug-induced psychosis from cocaine use, which was unrelated to his military service. The examiner opined that it was not at least as likely as not that his psychiatric disorders were related to his military service. The April 1986 in-service notation of anxiety and anger resolved upon the Veteran being released from custody. Records prior to discharge did not indicate any psychiatric symptoms. The first record of any psychiatric symptoms or hospitalization was in 1991, after his wife left him and he began using cocaine. At that time, he was diagnosed with a drug-induced psychosis. At a February 2014 Board hearing, the Veteran provided testimony that there was no specific event that caused anxiety in service, but that everyday normal events would cause it. He further indicated that basic training while in service, and the ability to carry machine guns, gave him a perception of special privilege and power that eventually caused his disability. The Veteran reported that, prior to service, he did not have anxiety or substance abuse problems, but currently, he takes medication daily, and seeks treatment on an as-needed basis. In a December 2015 VA examination, the examiner opined that the Veteran's condition was less likely than not incurred in or caused by service. The examiner diagnosed him with Schizophrenia and stimulant use disorder, and noted that it was less likely than not incurred in service. The onset of Schizophrenia appeared to be in 1990 or later, and there was no evidence that the Veteran experienced any symptoms during his period of service. The examiner noted the Veteran's alcohol-related and marijuana-related incidents, but stated that those incidents alone did not suggest the presence of Schizophrenia at the time of military service. Further, there was no other evidence to suggest the presence of Schizophrenia in service. The December 2015 VA examination did not address the Veteran's lay statements regarding his continuous symptoms of anxiety in service and since. As that examination was inadequate, the Board remanded the claim in May 2016 to obtain all relevant mental health treatment records, and to provide an addendum opinion to the December 2015 opinion to address the Veteran's lay statements regarding his continuous symptoms. The AOJ attempted to obtain signed medical authorization forms from the Veteran in July 2016 and April 2017, but to no avail. Additionally, after several attempts, Reserve records for the Veteran were unavailable. In an August 2016 VA addendum opinion, the examiner highlighted November 1984 psychiatric STR reports that found "no evidence of any psychopathology." The examiner indicated that in April 1986, the Veteran presented with nerve problems, anxiety and anger. In June 1986, the Veteran's psychiatric status was normal; and he answered "no" to questions regarding frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble or periods of unconsciousness. The examiner expressed that the Veteran's April 1986 incident appeared to be in the realm of normal human experience and not indicative of any clinical mental health condition. The Veteran felt better when out of custody; and he appeared alert and calm. A reassessment was requested, and when he was then returned to custody, no complaints of anxiety or anger were noted. The examiner indicated that the Veteran experienced situation depression during his period of service; however, experiencing depressive symptoms due to psychosocial stressors is within the realm of normal human experience, and did not suggest a clinically significant mental health disorder. The examiner opined that the Veteran's current diagnoses of Schizophrenia and stimulant use disorder are less likely than not incurred in, or were aggravated by his period of service. In a September 2017 VA addendum opinion, the examiner opined that the Veteran's psychiatric disorders were not incurred in or caused by any in-service injury, event or illness. The examiner indicated that the Veteran was diagnosed with Schizophrenia after his period of military service. His report of experiencing anxiety while in service was not sufficient because the Veteran currently does not have an anxiety disorder, and because anxiety is a common human emotion experienced by most people. The fact that the Veteran was noted to have situational depression during active service is not, in and of itself, an indicator of the onset of his current mental health conditions of Schizophrenia and stimulant use disorder. The Veteran's contentions alone that his current acquired psychiatric disorder is due to anxiety he experienced during service are insufficient to establish such a connection. Although the Veteran is competent to report on experiencing anxiety, the negative opinions are of more probative weight as they pertain to the question of nexus, which in this case is an inherently medical question. The opinions indicated that experiencing anxiety and depressive symptoms due to psychosocial stressors is within the realm of normal human experience, and do not suggest a clinically significant mental health disorder. Service treatment records reveal that the Veteran did experience anxiety and anger in April 1986; but an indication of an acquired psychiatric disorder was shown in post-service medical records only as early as 1991, 5 years after anxiety was noted in service. The August 2016 and September 2017 addendum opinions provided clear explanations as to why the Veteran's current acquired psychiatric disorders could not be related to his period of service, specifically experiencing anxiety and anger in service, based on post-service medical history and the nature of the current disability itself. The causes of Schizophrenia and stimulant use disorder involve complex medical questions, and as a lay person, the Veteran's opinions as to those causes do not constitute competent medical evidence. 38 C.F.R. § 3.159(a) (2017). The Board also notes that there is no objective evidence of psychoses within the Veteran's first post-service year. The Board finds that the preponderance of the evidence is against the Veteran's claim; therefore, the benefit of the doubt provision does not apply. ORDER Service connection for an acquired psychiatric disorder is denied. _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs