Citation Nr: 18151517 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-12 428 DATE: November 20, 2018 ORDER Entitlement to service connection for an acquired psychiatric disability is denied. Entitlement to nonservice-connected pension benefits is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to the service-connected left foot disability, is remanded. Entitlement to service connection for a right foot disability, to include as secondary to the service-connected left foot disability, is remanded. Entitlement to service connection for a neurological disability of the right upper extremity, to include as secondary to the cervical spine disability is remanded. Entitlement to service connection for a neurological disability of the left upper extremity, to include as secondary to the cervical spine disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric disability. 2. The Veteran’s first period of service in the Marine Corps from September 1965 to November 1965 was less than 90 days during the Vietnam Era, and the Veteran was not discharged for a service-connected disability. 3. The Veteran received a bad conduct discharge by order of a general court-martial effective October 1967 for his second service period in the Air Force from July 1966 to November 1967. 4. During the Veteran’s second period of active service from July 1966 to November 1967, his behavior and mental state were not the result of a disease, and he did not meet the VA criteria for insanity at the time he committed the offenses that resulted in a bad conduct discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for eligibility for nonservice-connected pension have not been met. 38 U.S.C. §§ 101, 1521, 5303 (West 2014); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.12, 3.13, 3.354 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from September 1965 to November 1965. He also served on active duty in the Air Force from July 1966 to October 1967, but received an “other than honorable” discharge for this period. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) located in Milwaukee, Wisconsin. 1. Service connection for an acquired psychiatric disability The Veteran seeks service connection for an acquired psychiatric disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Federal law specifically limits entitlement for service-connected disease or injury to cases where such incidents result in a disability. It is not enough for a claimant to seek some sort of benefit simply because he had a disease or injury on active duty. In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (upholds Court of Appeals for Veterans Claims decision to require a current existing disability). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran contends that he has an acquired psychiatric disability, to include anxiety and depression, that started in service. He asserts that he was diagnosed with emotional instability reaction and schizoid personality disorder during his first period of service. See, e.g., December 2012 Veteran statement; March 2013 Veteran statement. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The March 2013 VA examiner evaluated the Veteran and determined that the Veteran does not have an Axis I diagnosis of an acquired psychiatric disability. It was noted that the claims file included diagnoses of schizoid personality disorder, anxiety disorder, and emotional instability reaction, as well as the mention of panic attacks and depression. The examiner further explained: Regarding schizoid personality disorder, the present assessment results indicate the Veteran does not exhibit any of the signs or symptoms of that disorder. The Veteran’s [personality assessment inventory (PAI)] results and self-report during the interview contraindicate the presence of a depressive disorder. The Veteran evidences some symptoms of specific phobia, but not enough to meet diagnostic criteria. He has a marked and persistent fear that is cued by the presence or anticipation of specific situations (riding in an elevator and driving an interstate), and exposure to these stimuli almost invariably provokes an immediate anxiety response that at times includes a panic attack. However, in the case of interstate driving, the fear is not excessive or unreasonable, as his driving on the interstate has caused him vertigo and it is reasonable to believe it may cause the same reaction in the future. And for both the elevator and interstate cues, his fears do not interfere significantly with his normal routine, occupational functioning, social activities, or relationships. The Veteran’s PAI results and self-report during the interview contraindicate the presence of any other anxiety disorder. While private practitioner Y.Z. noted in a January 2014 treatment record that the Veteran had anxiety, there is no indication that Y.Z. rendered such diagnosis under DSM-IV or DSM-V criteria. See also March 2012 treatment record (Dr. R.C. noted a diagnosis of anxiety but did not indicate that the diagnosis was rendered under DSM-IV or DSM-V criteria). Furthermore, the January 2014 treatment record shows that Y.Z. was a medical student, who appears to have rendered the purported diagnosis based on the Veteran’s self-reported medical history. Similarly, in noting the anxiety diagnosis, the March 2012 treatment record does not indicate that Dr. R.C. performed a psychiatric examination of the Veteran. On the other hand, the March 2013 VA examiner is a psychologist, who rendered his opinion based on objective findings as shown by the record, as well as a thorough examination of the Veteran. Accordingly, the Board concludes that the medical opinion rendered by the March 2013 VA examiner was based upon a full and accurate factual premise, including the Veteran’s history, and provided a thorough rationale for the opinion given. The Board finds that the March 2013 VA examiner’s opinion that the Veteran does not have a current diagnosis of an acquired psychiatric disability outweighs the March 2012 and January 2014 private treatment records noting a diagnosis of anxiety. In this regard, the VA examiner is an experienced mental health professional, while Y.Z. was a medical student at the time. Moreover, the VA examination report demonstrates that the examiner reviewed the claims file, examined the Veteran, and considered the Veteran’s history in reaching his opinion, while the March 2012 and January 2014 private treatment records do not show that Y.Z. or Dr. R.C. reviewed the claims file, to include the Veteran’s service treatment records and post-service medical and lay evidence. Accordingly, the Board finds that the March 2013 VA examination report provides competent, credible, and probative evidence that shows that the Veteran does not have a current acquired psychiatric disability. Consequently, the Board gives more probative weight to the March 2013 VA examiner’s findings. While the Veteran believes he has a current diagnosis of an acquired psychiatric disability, he is not competent to provide a diagnosis in this case. Moreover, while the Veteran is competent to report some symptoms of a psychiatric disability experienced at any time, he is not competent to render diagnosis of a current psychiatric disability because such diagnosis requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the development of a psychiatric disability, and knowledge of the multiple potential etiologies of his psychiatric disability, which the Veteran is not shown to possess. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The Veteran is not shown to have the requisite medical expertise to render an opinion as to whether he has a current psychiatric disability. Consequently, the Board gives more probative weight to the competent medical evidence, as discussed above. Where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. As such, the Board finds that the evidence weighs against a finding of a current disability, and service connection for the claimed acquired psychiatric disability must therefore be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to nonservice-connected pension benefits The Veteran contends that he should be eligible for nonservice-connected pension. To be eligible for non-service connected pension, a veteran must have served in the active military, naval, or air service (1) for 90 days or more during a period of war; (2) during a period of war with discharge or release from such service for a service-connected disability; (3) for a period of 90 consecutive days or more when such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate period of service during more than one period of war. 38 U.S.C. § 1521(j); see also 38 C.F.R. § 3.3. The term “active military, naval, or air service” includes (a) active duty; (b) any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty; and (c) any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from certain cardiovascular events. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). A veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” 38 U.S.C. § 101(2) (2012); 38 C.F.R. § 3.1(d) (2017). A discharge issued under honorable conditions is binding on VA. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: statutory bars under 38 C.F.R. § 3.12(c) and regulatory bars under 38 C.F.R. § 3.12(d). As to the statutory bars, benefits are not payable where the former service member was discharged or released under one of the following conditions listed under 38 C.F.R. § 3.12(c): (1) as a conscientious objector who refused to perform military duty, wear a uniform, or comply with lawful order of competent military authorities; (2) by reason of the sentence of a general court-martial; (3) resignation by an officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release; and (6) by reason of a discharge under other than honorable conditions issued as a result of an absence without leave (AWOL) for a continuous period of at least 180 days, with certain exceptions. A discharge or release from service is not a bar to the payment of benefits if it was found that the person was insane at the time of committing the offense causing such discharge. 38 C.F.R. §§ 3.12(b), 3.354. VA presently recognizes the following as periods of war: January 1, 1817 through December 31, 1898, inclusive; April 21, 1898 through July 4, 1902, inclusive; May 9, 1916 through April 5, 1917; April 6, 1917 through November 11, 1918, inclusive; December 7, 1941 through December 31, 1946, inclusive; June 27, 1950 through January 31, 1955, inclusive; August 5, 1964 through May 7, 1975, inclusive; and August 2, 1990 through a date to be prescribed by Presidential proclamation or law. 38 C.F.R. § 3.2. For the reasons set forth below, the Board finds that the Veteran is not legally eligible for nonservice-connected pension. The Veteran’s DD Form 214 for his first period of service (Marine Corps) reflects that he served from September 2, 1965, to November 5, 1965. His service during this period was during the Vietnam War Era, but he had less than the 90 days of service required for pension. See 38 U.S.C. § 1521(j). The Veteran does not contend, and the record does not otherwise reflect, that he had more service in the Marines. Pension is only available to a veteran with wartime service less than 90 days if discharged for a service-connected disability. See id. Moreover, the evidence weighs against finding that the Veteran’s discharge from the Marines was from a service-connected disability. The Veteran is service connected for a left foot disability; however, there is no evidence that he was discharged from the Marines in November 1965 as a result of the service-connected left foot disability. Rather, service personnel records show that the Veteran was discharged from the Marines in November 1965 for unsuitability. Accordingly, the Veteran’s first period of service from September 1965 to November 1965 cannot form the basis for a grant of nonservice-connected pension benefits. With respect to the Veteran’s second period of service (Air Force), the Veteran’s DD Form 214 for the period from July 1966 to October 1967 reflects that he received an “other than honorable” discharge as a result of a court-martial. A review of the Veteran’s service personnel records shows that a February 1967 general court-martial order found him guilty of multiple felonies, and sentenced the him to a bad conduct discharge, confinement at hard labor for one year, and forfeiting all pay and allowance for one year. In August 1967, the United States Court of Military Appeals denied a petition to review the February 1967 court-martial. An October 1967 general court-martial order affirmed the February 1967 court-martial sentence. The Board finds that the appellant’s bad conduct discharge for his second period of active duty is a bar to entitlement to VA benefits as a matter of law under the statutory criteria as the discharge was at the order of a general court-martial for conviction of a felony. Character of discharge is assigned by the service department and VA has no authority to change the character of discharge or the conviction and sentence by the general court martial. While the Veteran has indicated an intent to appeal the character of his October 1967 discharge, there is no evidence to indicate an upgraded character of discharge for the Veteran’s second period of service from July 1966 to October 1967 has been obtained. Finally, the appellant has not alleged, and the record does not otherwise reflect, that the appellant committed the offenses that caused his other than honorable discharge due to insanity. Accordingly, the provisions of 38 C.F.R. §§ 3.12(b), 3.354 are not for application. Accordingly, the Veteran’s second period of service from July 1966 to October 1967 cannot form the basis for a grant of nonservice-connected pension benefits. As the bar to benefits is a matter of law, the “benefit of the doubt” rule is not for application, and the Board must deny the claim for a nonservice-connected pension. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). REASONS FOR REMAND 1. Service connection for a cervical spine disability 2. Service connection for a lumbar spine disability 3. Service connection for a right foot disability 4. Service connection for a neurological disability of the right upper extremity 5. Service connection for a neurological disability of the left upper extremity The Veteran seeks service connection for a cervical spine disability, a lumbar spine disability, and a right foot disability. In January 2017, the Veteran’s representative submitted evidence pertaining the to the claims for service connection for a cervical spine disability, a lumbar spine disability, and a right foot disability. However, the Veteran’s representative indicated that the Veteran declined to waive Agency of Original Jurisdiction (AOJ) review of this new evidence. The Board therefore remands this issue for the issuance of a supplemental statement of the case. 38 C.F.R. § 19.37 (2017). The Veterans also claims service connection for and neurological disabilities of the upper extremities as secondary to the cervical spine disability. The Board therefore remands the claims for service connection for neurological disabilities of the upper extremities because they are inextricably intertwined with the claim for service connection for a cervical spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: Readjudicate the remaining issues on appeal, to include based on new evidence submitted by the Veteran since the December 2016 supplemental statement of the case. If the benefits sought remain denied, provide an additional supplemental statement of the case (SSOC) to the Veteran and representative, and return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Ragheb, Counsel