Citation Nr: 1815162 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 09-15 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and to include as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Henry, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Subsequently, the VLJ who conducted the hearing retired. In June 2014, the Board sent the Veteran a letter informing him of this and indicating that he could have another hearing. 38 U.S.C. § 7107(c) (2012); 38 C.F.R. §§ 20.707, 20.717 (2017). In July 2014, the Veteran waived his right to an additional hearing. See BVA Letter entered in Caseflow Reader in August 2014. In March 2012, the Board reopened and remanded the claim for further development. In July 2014, the Board remanded the claim for further development. FINDINGS OF FACT 1. The Veteran has not asserted good cause or any notification deficiency for missing his VA examinations scheduled in connection with his claim for an acquired psychiatric disorder. 2. A current psychiatric disorder has not been shown to be etiologically related to service or to a service-connected disability. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and as secondary to a service-connected disability, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veteran's Claim Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VA fulfilled its duty to assist in providing appropriate medical examinations and opinions. 38 C.F.R. §§ 3.159(d), 3.655. In March 2015, the RO requested a psychiatric VA examination for the Veteran. See Request for Physical Examination entered in Caseflow Reader in March 2015. However, in May 2015, the RO was unable to contact the Veteran; therefore, the examination was cancelled. See VA Examination entered in Caseflow Reader in June 2015. In August 2017, the RO sent the Veteran a letter informing him of his VA examination. The letter further stated that if a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied. Examples of good cause include, but are not limited to, illness or hospitalization, death of a family member, etc. See Map-D Development Letter entered in Caseflow Reader in August 2017. The examination was scheduled in September 2017. See C&P entered in Caseflow reader in September 2017. However, the Veteran did not attend the examination and did not provide good cause for not attending the examination or any notification or scheduling deficiency by VA. See 38 C.F.R. § 3.655. The Veteran and his representative have not 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). II. Service connection 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. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Also, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310(a), (b) (2017). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under 38 C.F.R. § 3.304(f), there are particular requirements for establishing service connection for PTSD that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD requires: medical evidence diagnosing the condition 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 claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was engaged in combat with the enemy. See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d), (f); Doran v. Brown, 6 Vet. App. 283, 298 (1994). Analysis The Veteran seeks service connection for a psychiatric disorder, to include PTSD and/or secondary to his service-connected disabilities. See Statement in Support of Claim for PTSD entered in Caseflow Reader in February 2017. The Board notes that the Veteran has been diagnosed with among other things, borderline personality disorder, depression, and anxiety. Therefore, the first element under Shedden and Wallin is met. During boot camp, the Veteran broke his left ankle. See Statement in Support of Claim. Additionally, while serving on the USS Mount Whitney, the Veteran burned and injured his right hand. See id. The Veteran is service connected for both disabilities. As such, the second element under Shedden and Wallin is met. However, the most probative evidence of record does not indicate that the Veteran's psychiatric disorder to include PTSD is etiologically related to his service, or to another service-connected disability. Therefore, the third element under Shedden and Wallin is not met. The Veteran's STRs do not show complaints, treatments, or diagnosis of a psychiatric disorder to include PTSD. See STR entered in Caseflow Reader in August 2014. During his January 1974 Report of Medical Examination: Release from active duty, the examiner did not document a psychiatric disorder. In July 1984, the Veteran was seen for audiovisual hallucinations, violent outbursts, and possible paranoia at a VAMC. He was originally diagnosed with depression, but the depression was not concrete or long term, i.e., greater than a day. In 1975 and 1976, the Veteran reported that he was shot. He stated that he had not had hallucinations or other psychotic complaints until after he was shot. See id. The Veteran stated that his paranoia originated in prison. See id. at 14. In October 1984, the Veteran was afforded a VA examination to determine the nature and etiology of his disabilities. See id. at 6. The examiner stated that the Veteran had a long history of general instability, i.e., he had a personality problem. The Veteran had problems with employment, antisocial acts, perhaps alcohol dependency, family difficulties, and emotional imbalance. The examiner diagnosed the Veteran with borderline personality disorder. The examiner further stated that there was insufficient material to support a diagnosis of paranoid schizophrenia. In July 1995, the Veteran was seen at a VAMC. See Medical Treatment Record-Government Facility entered in Caseflow Reader in August 1995. The Veteran's axis I diagnoses included polysubstance abuse, schizo-affective disorder, and a history of PTSD. See id. at 1. In April 2006, the Veteran was seen at a VAMC. See Medical Treatment Record-Government Facility entered in Caseflow Reader in November 2006. The Veteran's PTSD and depression screens were positive. See id. at 5; see also Capri entered in Caseflow Reader in October 2017 at 49 which depicted a December 2015 positive PTSD screen. In November 2009, the Veteran was afforded a VA examination to determine the nature and etiology of his psychiatric disorder. The examiner reviewed the claims file and performed an in-person examination. The Veteran's in-service stressor included injuring his right hand in a steam press and post-service stressor included several convictions resulting in incarcerations. The examiner stated that the Veteran did not meet the criteria for PTSD. The examiner stated that the Veteran satisfied the criteria for polysubstance dependence, personality disorder NOS with antisocial traits without substance induced mood disorder. The examiner concluded that the Veteran's disorders were not related to his service-connected disabilities. In November 2011, the Veteran testified at a Board hearing. See Hearing Testimony entered in Caseflow Reader in November 2011. The Veteran stated that he was a Vietnam era Veteran who had PTSD but did not serve in combat. See id. at 4. He stated that the traumatic event that resulted in his PTSD occurred when he accidently hurt his right hand. See id. at 5. He also stated that because of his right hand, he would often become anxious and depressed. See id. at 10 and 11. The Veteran stated that due to the traumatic event, he had dreams, sweats, and woke up at night. See id. at 15. He also avoided ironing. See id. at 15. In March 2012, the Board noted that the Veteran was afforded a VA examination in November 2009. The examiner stated that the Veteran did not meet the criteria for PTSD; however, the examiner did not indicate whether the Veteran's other diagnosed psychiatric disorders were due to or aggravated by his service-connected disabilities. The Board remanded the claim for further development. In September 2012, the Veteran was seen at a private facility. See Medical Record-Non-Government Facility entered in Caseflow Reader in October 2012 at 1. The Veteran was seen for belligerency and hallucinations regarding Vietnam. He stated that he was having flashbacks about the Vietcong. See id. The Veteran further stated that he had PTSD because of his 1972 Vietnam experiences. He stated that he started PTSD treatment in 1980; however, he had been misdiagnosed with paranoid schizophrenia and bipolar. See id. at 2. The examiner listed the Veteran's admitting diagnoses to include PTSD, alcohol dependence, and possibly other mental disorders which the examiner could not elicit. See id. at 4. The Board finds that the preponderance of the evidence is against the Veteran's claim. The Board has considered the Veteran's buddy and lay statements regarding the etiology of his acquired psychiatric disorders. The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a nexus between the acquired psychiatric disorder and military service, is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Additionally, the medical evidence of record does not contain a nexus opinion by a medical professional relating the Veteran's current psychiatric disorder to his active service or service-connected disabilities. The Board notes that in September 2012, the Veteran was seen at a private facility for belligerency and hallucinations regarding Vietnam. The Board notes that when asked to provide information about his PTSD stressors, the Veteran repeatedly noted his injured hand and ankle. Additionally, the Veterans military records do not document service in Vietnam. See, e.g., DD 214; Military Personnel Records; STRs. Thus, to the extent that this September 2012 private treatment record reflects a diagnosis of PTSD and a nexus to service, the Board concludes that it is based on an inaccurate factual premise, and is afforded little probative value. As there is no medical nexus linking the Veteran's acquired psychiatric disorder to active service and/or service-connected disabilities, the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder, to include PTSD and as secondary to service-connected disabilities, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or as due to service-connected disabilities, is denied. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs