Citation Nr: 1808962 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 14-16 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, and schizophrenia. ATTORNEY FOR THE BOARD J. I. Tissera, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2006 to May 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board most recently remanded the case in April 2016 for further evidentiary development. The case is now once again before the Board for adjudication. FINDINGS OF FACTS 1. The Veteran does not have PTSD. 2. The Veteran's acquired psychiatric disorders, to include anxiety, depression, and schizophrenia, are not attributable to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder , to include PTSD, depression, anxiety, and schizophrenia, have not been met. 38 U.S.C. §§ 1110, 1111, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The duty to notify has been met. The Veteran has not alleged prejudice with regard to notice. The Federal Circuit Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The record includes the Veteran's service treatment and personnel records. All released or submitted private treatment records have also been associated with the claims file, including those from Cobb County Community Services. All available VA treatment records have been obtained, including those from the Atlanta VA Medical Center (VAMC). The Board notes that records from the Atlanta VAMC have not been obtained prior to July 5, 2011. The record indicates that treatment records prior to this date do not exist since the Veteran did not register with the Atlanta VAMC prior to that date. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. VA's duty to assist also includes the duty to provide a VA examination when there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established in-service event, injury, or disease, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board's prior remand also requested that the agency of original jurisdiction (AOJ) verify the Veteran's address. After some difficulty, this was accomplished. To that end, the Veteran submitted correspondence in May 2016 that provided a current address. See VA Form 21-4138 dated May 23, 2016. It appears that the initial attempts at scheduling used the incorrect address, but attempts were subsequently made to schedule the examination using the Veteran's updated address for notification purposes. See VA Form 21-6789 dated February 3, 2017. Although a subsequent attempt was made to schedule the examination using the correct address, the Veteran failed to RSVP or assist in scheduling and the examination request was cancelled. See Cancellation dated February 27, 2017 noting that the Veteran failed to RSVP and that the examination was cancelled. The Board is therefore left in a situation legally analogous to a Veteran's failure to report for an examination. Governing regulation provides that for original claims, such as the instant appeal, were the claimant without good cause fails to report for an examination, the claim must be decided based on the evidence of record. 38 C.F.R. § 3.655 (2017). Although, strictly speaking, the Veteran did not fail to report for the examination, but rather was unresponsive to VA's attempts to schedule the same, the Board is left in essentially the same position. Reasonable attempts were made to schedule the examination, but the Veteran did not cooperate with VA. The Board will therefore proceed with adjudication based on the evidence of record as there is no indication that future attempts to schedule an examination would be more fruitful than the prior attempt(s). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is a two-way street and that if the 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 relevant evidence). II. Service Connection for Psychiatric Disorder The Veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and schizophrenia. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304(b), a Veteran is entitled to service connection for a disease that was present in service unless the disease was noted in an examination report at the time of entrance into service, or unless clear and unmistakable evidence shows that the Veteran contracted the disease prior to service and that the disease was not aggravated by service. Harris v. West, 250 F.3d 1347 (Fed. Cir. 2000). The correct standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 requires VA to show by clear and unmistakable evidence that (1) the Veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. A. PTSD As explained below, the Board finds that the Veteran does not have PTSD and service connection for the condition is not warranted. The Veteran's service treatment records do not show any complaints of, diagnosis of, or treatment for any psychological conditions. In a February 2006 medical examination, the Veteran had a normal psychiatric evaluation and he denied any psychiatric care or counseling. In a September 2007 treatment note, the Veteran complained of being over-worked at his job as a cable-installation man, particularly after he was assigned extra duty as part of an Article 15. He did not report any anxiety other than the mild worry about his current work problem. The treating physician noted the Veteran's concentration was marked by longstanding and easy distractibility. His speech was suggestive of being a bit under-educated, but the Veteran was otherwise coherent, relevant, and of normal rate, latency, and volume; his mood was "okay, good," he denied any suicidal or homicidal ideation, and was found not to be psychotic. The Veteran stated in an April 2008 separation proceeding that there were "some very stressful things going on in my life, and I did not know how to deal with them[.]" He sought counseling from a chaplain in the community and found productive ways to deal with his stress. However, the Veteran did not provide any details as to the circumstances that were causing him stress. Prior to his discharge from service, the Veteran was given a behavioral health evaluation in February 2009, whose results showed the Veteran had the mental capacity to understand and participate in his discharge proceedings and that he did not have any psychiatric diagnoses. The Veteran was found to be psychiatrically cleared for any administrative action deemed appropriate by command. A mental status examination in February 2009 noted there was no PTSD indicated. The Veteran's December 2009 separation examination showed the Veteran had a normal psychiatric evaluation. In July 2011, the Veteran sought treatment at the Atlanta VA Medical Center (VAMC). The Veteran complained of depression, anxiety, and insomnia. He reported feeling depressed, that he found it difficult to readjust to civilian life, and especially to find employment. During his evaluation, the Veteran denied any traumatic military experiences. A PTSD screening test was negative, but he did test positive in the depression screening, and he was diagnosed with depression not otherwise specified. Nearly three weeks later, the Veteran stated he was no longer depressed and felt he did not need counseling at that time. As part of his application for social security disability benefits, the Veteran was examined by a psychologist in March 2012. The psychologist noted the Veteran had depressed mood, blunted affect, circumlocuitous thought process, and delusional thought; the Veteran denied any audio or visual hallucinations and suicidal or homicidal ideations. The Veteran denied ever having nightmares or flashbacks as a result of being involved in some traumatic or terrible event and denied any mental health concerns. He alleged experiencing combat in the country of Georgia, but when asked to elaborate, he said he contracted a stomach virus. The Veteran's personnel records indicate the Veteran was stationed abroad in Stuttgart, Germany. Although his service treatment records do note the Veteran complaining of a stomach virus after returning from a trip to Russia, the Veteran's travel there was not related to his military duties. The psychologist determined there was no indication of PTSD. Instead, the examination suggested that the Veteran was experiencing signs and symptoms of schizophrenia, which included symptoms such as talking to himself (suggesting hallucinations), religious preoccupation, and a false fixed belief about having PTSD (despite not experiencing combat) and persecutory delusions about being starved. Associated symptoms include failure to obtain employment despite an average intellect and post-high school education, and failure to live independently. In an April 2012 psychological evaluation by the Social Security Administration (SSA), the Veteran was again diagnosed with schizophrenia and a GAF Score of 40. The Veteran was determined to be a poor historian due to the sketchy reporting of his time in the military. The Veteran has little insight into his condition, believing he had military combat in Russia and has PTSD, which were identified as false by collateral sources. The examiner concluded that while PTSD is not credible, schizophrenia does appear to be a credible diagnosis. Based on the medical evidence, the Veteran does not have a diagnosis of PTSD of record that conforms to the fifth edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. § 4.125(a). The Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the Veteran is not competent to provide testimony regarding the presence or etiology of an acquired psychiatric disorder such as PTSD. Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements linking the Veteran's experiences to his current psychiatric disorder are found to lack competency. In short, the Board finds that there is no indication in the record that the Veteran currently has PTSD. Indeed, the Veteran was specifically found to not have PTSD in the March 2012 and April 2012 SSA examinations. Further, treatment records since then have indicated treatment for acquired psychiatric disorders other than PTSD, but not PTSD. As noted above, the Board previously remanded to obtain a psychiatric examination that might have shed additional light on the Veteran's claimed condition, but the Veteran did not cooperate with VA's attempts to schedule the examination. As such, the Board must decide the case based on the evidence of record and, in the instant case, that evidence does not show that the Veteran has PTSD. See Wood, supra. Service connection for the condition is therefore not warranted. B. Disorders Other Than PTSD The Board determines that service connection for acquired psychiatric disabilities other than PTSD, such as depression, anxiety, and schizophrenia are also not warranted. While the Board notes that the Veteran has a current diagnosis of record for depression and schizophrenia, these disabilities were not shown in service. i. Depression The Veteran's medical records do not reflect treatment for depression in service or within a year after separation from the Army in May 2009. The first indication of a psychiatric diagnosis was in July 2011, when the Veteran was seen at the Atlanta VAMC. There, the Veteran was initially diagnosed with depression not otherwise specified. The Veteran was also diagnosed with depression in October 2011 when he was seen at the Cobb County Community Services Board emergency room. This satisfies the first element of service connection. There is no medical evidence that the Veteran had depression in service or that there is any link between his depression and time in service. A June 2007 medical review noted that he did not have any symptoms of depression or feelings of hopelessness. After service in July 2011, the Veteran reported to the Atlanta VAMC that he was feeling stressed with depression and anxiety symptoms due to his inability to find employment. As noted above, the Board previously remanded to obtain a psychiatric examination that might have shed additional light on the nature and etiology of the Veteran's claimed depression, but the Veteran did not cooperate with VA's attempts to schedule the examination. As such, the Board must decide the case based on the evidence of record and, in the instant case, that evidence does not show that the Veteran had depression in service or that such condition is related to service. ii. Anxiety The Veteran's medical records do not reflect treatment for anxiety in service or within a year after separation from the Army in May 2009. The Veteran first complained of anxiety in July 2011 while seeking treatment at the Atlanta VAMC. There is no diagnosis for an anxiety disorder in the Veteran's service treatment records. As such, service connection for this condition is not warranted. As with the other conditions, the Veteran has frustrated VA's attempts to obtain additional evidence that might help to substantiate the claim. iii. Schizophrenia The Veteran's medical records do not reflect treatment for schizophrenia in service or within a year after separation from the Army in May 2009. The first indication of a psychiatric diagnosis was not until October 2011, when the Veteran was admitted to the Cobb County Community Services Board emergency room due to a psychiatric event. There, the Veteran was initially diagnosed as schizoaffective and depressed. In the March 2012 psychological examination, the Veteran's mother reported the Veteran was "different" after his return from service. Upon further questioning by the psychologist, she provided information that seemed consistent with the typical course and onset of a primary psychotic disorder. She stated that the Veteran was "always different" and was surprised when the military accepted him. The Veteran had been functioning normally until around the age of 12, when he "started changing and was always angry," and stopped interacting with peers. Furthermore, the Veteran's maternal grandfather was also diagnosed with schizophrenia in his late twenties. The March 2012 psychological examination indicated that the Veteran began to show signs of schizophrenia prior to the Veteran's time in service. However, according to the Veteran's service treatment records, there is no medical evidence showing that the Veteran's schizophrenia was aggravated by or during his time in service. The Veteran was evaluated as having a normal psychiatric evaluation upon entry to and separation from service. Medical reviews in June 2007, October 2008, and February 2009 did not find any psychological symptoms. A September 2007 medical evaluation, the treating physician found the Veteran was not psychotic. Despite this evidence, the nature and etiology of the Veteran's schizophrenia remains obscure. It is unclear whether the condition pre-existed service, had its actual onset in service, or was aggravated therein. As the Veteran did not cooperate with VA's attempts to schedule him for an examination to assess his psychiatric disability picture, evidence that might have shed further light on the etiology of the Veteran's schizophrenia could not be obtained. The evidence of record currently by itself is insufficient to show that the Veteran's schizophrenia is attributable to service. Based upon the foregoing, a preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, 1 Vet. App. at 54 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and schizophrenia, is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs