Citation Nr: 1805916 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-34 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Alexandra Jackson, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel INTRODUCTION The Veteran had a period of active duty service from August 1966 to April 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision. In June 2015 the Board granted new and material evidence to reopen the claim for an acquired psychiatric disorder and remanded the claim back to the Regional Office (RO) with instructions for a VA psychiatric exam and to make a medical determination regarding the etiology of the Veteran's psychiatric disorder. In March 2015, the Veteran testified at a videoconference before the undersigned. A transcript of the hearing is of record. This appeal was processed using the Legacy Content Manager Documents, and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDING OF FACT An anxiety type disorder unequivocally pre-existed service and unequivocally was not made worse by service. A psychosis was first shown years post service and is not shown to be related to any inservice occurrence or event. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). A standard March 2011 letter satisfied the duty to notify provisions. Further information was provided in a November 2011 letter. VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2017). Letters on file provided information, as did the discussion at the personal hearing. There has been no contention to the contrary. 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 duty to assist argument). The Veteran was afforded a VA psychiatric examination connected with the claim most recently in November 2015 which includes information as to the etiology of any current mental disorder and its relationship to his period of service. The Veteran's contends that his psychiatric disorder was aggravated in-service. The Board disagrees, the Veteran's contentions and evidence were adequately discussed, and findings were complete concerning any acquired psychiatric disorder. This is especially true when the examination is considered in the context of the entire record. As noted above, the Board remanded this matter in June 2015. Specifically, the Board directed that a new VA examination and supplemental statement of the case (SSOC) be prepared and sent to the Veteran, if benefits were not granted. A review of the Veteran's claims file shows that he was provided an updated SSOC in March 2017. As the requested development has been completed, all remand requirements have been met to make a determination on the Veteran's mental disorder and the case may move forward without prejudice to the Veteran. Stegall v. West, 11 Vet. App. 268, 271 (1998). SERVICE CONNECTION FOR MENTAL DISORDERS 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.A. §§ 1110, 1131(West 2014); 38 C.F.R. § 3.303 (2017). "To establish a right to compensation for a present disability, 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'-the so-called "nexus requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Where a disorder is not noted at the time of entrance examination, a Veteran is presumed in sound condition at that time. Where there is later unequivocal evidence that the disorder pre-existed service, there must be a determination as to whether there is unequivocal evidence that there was no aggravation of the disorder beyond the normal progress of the disorder. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.306. Where certain disorders, including a psychosis, are demonstrated to a compensable degree within 1 year following separation from service, service connection may be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. The first element of Shedden is established for this claim because the record clearly demonstrates that the Veteran has a current psychiatric disorder. STR's and VA examination records dated between 1996 and 2015 along with medical reports and addendum opinions repeatedly diagnose the Veteran with anxiety disorders, mental disorders due to a general medical condition schizophrenia, and other psychotic disorders, and sleep disorders. The Veteran's essential contention is that he currently suffers from a psychiatric disorder that is related to service. Service treatment records reveal complaints, treatments, or diagnoses for a psychiatric disorder. The Board also recognizes that the Veteran was granted an early separation from the military by the Medical Review Board due to his psychiatric disorder. Lastly, the Board finds service connection not warranted for a psychiatric disorder, because the record indicates onset of a psychiatric disorder many years prior to the Veteran entering service and is not shown to have been caused by service. However, the more dispositive question is whether the Veteran's psychiatric disorder was aggravated by service. The Veteran's service treatment records (STR's) confirm that upon entrance in August 1966 the Veteran evaluated as normal for psychiatric purposes. Psychologically, the entrance STR's reveal no complaint of a psychiatric disorder by the Veteran to a medical examiner. On October 1966 STR's the examiner noted that the Veteran has become very anxious and suffered from recurrent dreams that made him cry. The examiner diagnosed the Veteran with severe anxiety and referred him for a mental health evaluation. On another October 1966 mental health examination, STR's reveal the Veteran possesses passive-dependent personality with passive-aggressive elements. The examiner also noted that the Veteran's condition is manifested by excessive rumination about his mother and family situation, coupled with a strong dislike of authority, particularly peer authority. The examiner expressed that the Veteran's family history is suggestive of great disequilibrium. The examiner noted that on one occasion the Veteran actually attempted to kill his step-father. The examiner opined that the Veteran's sub-cardial pains result from his basic personality dynamics as are his nightmares. The examiner prescribed that the Veteran be placed in group psychotherapy for treatment. On a December 1966 mental health examination, the examiner noted that the Veteran suffered from anxiety and that his anxiety symptoms began when the Veteran had to take an academic test during in-service training in late October 1966. The examiner also noted that the Veteran's chest pain was again aggravated while the patient was on leave waiting to join his new posting in Hawaii and possibly with fear to go to Viet Nam subsequently. The examiner also noted that the Veteran comes from a broken home and apparently could not adjust to his step-father and his mother was also heavy alcoholic. The examiner also noted that the Veteran also has a history of bed wetting and early heavy drinking, and is rebelliousness towards authorities all reflecting to his total structural development of immaturity with resulting anxiety and conflict with the ideas of his deep dependency. The examiner diagnosed that the Veteran showed referential thinking, free floating anxiety and somatic complaints. The examiner opined that the etiology of the Veteran's symptoms appears to have been precipitated and aggravated by situational and above circumstantial stress, which are in all probability overtaxing the Veteran's immature, conflictual personality. The examiner prescribed further treatment with chemotherapy and psychotherapy for the Veterans anxiety. January 1967 STR's reveal the examiner diagnosed the Veteran with an abnormal nervousness and noted that the Veteran has a chronic to moderate anxiety reaction resulting in impairment for military service. The examiner also noted the anxiety to be severe to moderately severe for social and industrial adaptation. The examiner opined that the origin of the Veterans anxiety disorder is 1964 predating his military service. April 1967 STR's reveal, the examiner diagnosed the Veteran with an anxiety reaction and noted that the Veteran anxiety was due to his possible deployment to Vietnam and a fear of death in combat. He was discharged with the finding that his anxiety pre-existed service and was not aggravated by service. VA psychiatric examinations and treatment records from 1996 to 2015 consistently contain a history of diagnoses of anxiety disorders, mental disorder due to general medical condition, schizophrenia, and other psychotic disorders and sleep disorders. On a December 2001 private examination, the examiner diagnosed the Veteran with acute anxiety and referred the Veteran to a psychiatric consultation. VA examinations between April 2011 and February 2014 repeatedly diagnose the Veteran with anxiety disorders, PTSD and psychiatric issues. Specifically on an October 2011 VA examination, the examiner again noted a history of anxiety disorders, mental disorders due to the general the medical condition, schizophrenia, and other psychotic disorders and sleep disorders. On a November 2011 VA examination, the examiner diagnosed the Veteran with an anxiety disorder, but also noted that the Veteran does have some signs of PTSD, but does not meet the criteria for PTSD. On a June 2013 VA examination the examiner noted historically that the Veteran has had anxiety since being in the service. None of these records give information concerning how the finding of schizophrenia or a psychosis was determined. There is no analysis of etiology. Similarly, from separation from service to 1999, there are not reported findings of psychiatric treatment. There are also recorded findings of malingering. Again, without information of how that determination was made. On the Veteran's most recent November 2015 VA examination, the examiner noted that the Veterans August 1966 entrance examination indicates that he was considered normal for psychiatric purposes. The examiner also noted that the Veteran did not complete the entire test, so his testing is considered invalid and uninterpretable. The examiner also noted that although the Veteran has received mental health treatment, and indicates that he has a tendency to exaggerate cognitive and psychiatric symptoms. Taking into account the aforementioned, with the Veteran's current invalid test results, the examiner was rendered unable to come to any conclusions regarding whether the Veteran has an acquired psychiatric disorder or if any psychiatric disorder the Veteran may have had originated or was aggravated during his active duty service. The examiner also noted that although the Veteran's STR's records show that he had a pre-existing psychiatric disorder prior to entering the military. The examiner also noted that the Veteran's documented tendency to exaggerate his mental health symptoms and his current invalid test results make it very difficult to determine beyond mere speculation any possible linkages between the mental health symptoms he may have experienced in the military and the mental health symptoms he reportedly experienced prior to the service. The examiner noted that because of the Veteran's history of exaggeration of cognitive and mental health symptoms, some parts off the psychiatric examination could not be completed. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190,193 1991 U.S. Vet. App. (Westlaw 2014). The uncooperative nature by the Veteran during his most recent November 2015 VA psychiatric examination resulted in the omission of several parts of the examination rendering the exam invalid and the examiner unable to make a complete determination as to the etiology of the Veteran's psychiatric disorder and whether it was further aggravated by his service. The available and current evidence of record less the most recent invalid November 2015 VA psychiatric examination does not support the establishment of a nexus between the Veteran's current psychiatric condition and in-service events. Furthermore, the evidence of record does not support a finding that a pre-existing mental condition was aggravated during service. As noted, there was no post-service finding of psychiatric treatment for years post service, which would contraindicate that there was any aggravation of the disorder as a result of service. The Board has considered the Veteran's lay statements of a nexus between his current acquired psychiatric disorders and his military service. However, it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer an opinion on the relationship between his current disability and service. While lay persons are competent to provide opinions on some medical matters (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011)), the etiology of psychiatric disorder is a complex medical matter that falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, even considering the Veteran's unsupported lay statements that his psychiatric disorder and anxiety began during service, the evidentiary record placed the etiology of the psychiatric disorder prior to his entrance in the military. As such, the Veteran's statements regarding a nexus between his current acquired psychiatric disorders and military service are outweighed by the other evidence of record, and, as such, are not considered competent or probative evidence favorable to his claim. The opinions of record to the Veteran's claims provided thorough and persuasive rationales, the preponderance of the most probative evidence weighs against the claims. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs