Citation Nr: 20008219 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 14-34 332A DATE: January 30, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT The Veteran’s acquired psychiatric disorder is not causally or etiologically related to his military service. CONCLUSION OF LAW The criteria for 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 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active military service for purposes of VA benefits from January 1978 to January 1980; he also had a period of service from February 1985 to September 1987, which was determined to be a period of dishonorable service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. On his October 2014 Substantive Appeal, the Veteran requested a Board hearing, which was scheduled for April 2018. Notice of the scheduled hearing was sent to the Veteran’s address of record in March 2018, but it was returned as undeliverable by the U.S. Post Office. Hyson v. Brown, 5 Vet. App. 262, 264 (1993). The Veteran did not report for the scheduled hearing. The Veteran was subsequently rescheduled for a Board hearing in May 2019. Notice of the scheduled hearing was sent to the Veteran’s address of record in March 2019. The Veteran again did not report for the scheduled hearing; however, there is no indication that the Veteran did not receive this hearing notification and no good cause was shown for his absence; therefore, the hearing request is deemed withdrawn. 38 U.S.C. § 20.704(d). Service Connection Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., 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). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person’s observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that his acquired psychiatric disability is due to exposure to contaminated water while stationed at Camp Lejeune. Effective March 14, 2017, 38 C.F.R. §§ 3.307 and 3.309 were amended to add eight diseases to the list of diseases associated with contaminants present in the water supply at U.S. Marine Corps Base Camp Lejeune, North Carolina, from August 1, 1953, to December 31, 1987. The amendments apply to claims received by VA on or after January 13, 2017, and claims pending before VA on that date. They do not apply retroactively to claims previously adjudicated. The amended 38 C.F.R. §§ 3.307 and 3.309 establish presumptive service connection for Veterans, former reservists, and former National Guard members who served at Camp Lejeune for no less than 30 days (either consecutive or nonconsecutive) during this period, and who have been diagnosed with any of the following eight diseases: adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin’s lymphoma, and Parkinson’s disease. Thus, although the Veteran’s military personnel records reflect that the Veteran was stationed at Camp Lejeune from May 1978 to January 1980, an acquired psychiatric disorder is not on the list of those recognized as associated with exposure to contaminated water at Camp Lejeune. Id. As such, the presumptive provisions are not applicable. Nevertheless, service connection may be granted on a direct basis if the evidence supports such a grant. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). The Veteran’s service treatment records (STRs) are silent for any symptoms, treatment, or diagnosis related to a psychiatric disorder. Although the Veteran’s separation examination is not available for the relevant period of service, subsequent April 1981 and August 1987 evaluations are also silent for any symptoms, treatment, or diagnosis related to a psychiatric disorder. Social Security Administration records note diagnoses of affective disorders and personality disorders. These SSA records also contain a review of the Veteran’s medical treatment records, which reveal the presence of antisocial and passive aggressive features as early as January 1992 and a diagnosis of major depressive disorder in April 1992; a June 1997 assessment notes that the Veteran reported that he had been depressed approximately five years. An October 2004 assessment provides a diagnosis of mood disorder NOS. A July 2005 assessment indicates diagnoses of mood disorder NOS, antisocial personality traits, and possible paranoid personality. An assessment in June 2012 notes diagnoses of mood disorder NOS and antisocial personality disorder, and the Veteran reported that he had been depressed for a couple of years. With regard to the disorders provided within these records, the Board notes that there is no indication that certain symptoms were associated with a specific disorder. Post-service VA treatment records reflect that the Veteran established care at VA and notes a diagnosis of bipolar disorder in June 2012. The Veteran, in a May 2014 treatment record, indicated that he received a diagnosis of bipolar disorder two years prior. Subsequent medical treatment records note ongoing mental health treatment and continue to note a diagnosis of bipolar disorder; however, intermittent records also note a personality disorder, without distinguishing which of the Veteran’s symptoms were associated with the personality disorder. After review of the evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s psychiatric disorder is related to his active military service. There is no evidence of record that a psychiatric disability was present during his period of active duty. Moreover, there is no evidence showing continuity of symptoms since service related to a psychiatric disability. The Board notes that personality disorders do not constitute a disability for VA compensation purposes. 38 C.F.R. §§ 3.303, 4.9, 4.127. Nevertheless, even assuming that some of his psychological symptoms or features could not be distinguished from his other acquired psychiatric disorder pursuant to Mittleider v. West, 11 Vet. Ap. 181 (1998), the earliest medical evidence of record indicating the presence of a psychiatric disorder is still at least a decade after separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, the record lacks any evidence connecting his acquired psychiatric disorder and his period of active service, to include exposure to contaminants in the water at Camp Lejeune; the Veteran has not submitted medical literature or a medical opinion indicating such a link. The record in this case is negative for any indication, other than the Veteran’s own general assertion, that an acquired psychiatric disorder is related to his period of active military service. The Board notes that a lay person is competent to give evidence about observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the questions of diagnosis and causation extend beyond an immediately observable cause-and-effect relationship. Thus, the Veteran is not competent to address the diagnosis or etiology of his disability. Therefore, the Board finds that there is no probative evidence of record, lay or medical, indicating that the Veteran’s current psychiatric disorder was incurred in or otherwise related to active service, to include exposure to contaminants in the water at Camp Lejeune. The Board has considered the contention of the Veteran’s representative that this case should be remanded, given that the Veteran is allegedly unable to be located as evinced by the undeliverability of prior VA notifications, for a “sincere” attempt to locate the Veteran. The Board recognizes that there has been some confusion regarding the Veteran’s current address, as noted above with regard to the returned mail for the initial scheduled hearing. However, as previously indicated, the record reflects that the Veteran was provided a second opportunity to testify at a Board hearing; he was notified of his rescheduled Board hearing in March 2019, and there has been no indication since that time that mail has not been received by the Veteran or that he has otherwise not received notice regarding the status of his appeal. The Board notes that the Veteran has the duty to keep VA appraised of his whereabouts and that VA’s duty to assist in the development and adjudication of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran’s representative additionally asserts that the evidence of record establishes that the Veteran has been evaluated and received treatment for bipolar disorder and that he was stationed at Camp Lejeune during service, and therefore, he should be entitled to a VA examination to evaluate him for an acquired psychiatric disorder and medical opinion regarding etiology. In further support of establishing the existence of a current disability, the representative has suggested that, given that a March 2015 correspondence was “not entire legible”, this “may be a sign of an acquired mental disorder.” With regard to contention regarding the March 2015 correspondence, the Board notes that other written correspondences were received by VA and there is no indication that those were illegible. Nevertheless, the Board does not dispute the facts as stated by the Veteran’s representative; military personnel records indeed reflect that the Veteran was stationed at Camp Lejeune from May 1978 to January 1980, and, as discussed above, his medical treatment records provide various mental health diagnoses. However, the Board finds the representative’s argument that a VA examination is warranted to be without merit. Specifically, the representative’s assertion that the Veteran’s acquired psychiatric disorder is related to his exposure to contaminants in the water at Camp Lejeune is not supported by any actual medical indication of a connection and does not otherwise establish that a VA examination or opinion is necessary or would aid in substantiating the claim. Therefore, it is insufficient to trigger VA’s duty to assist by providing a medical opinion regarding service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). (Continued on the next page)   Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include as due to exposure to contaminated water at Camp Lejeune. Accordingly, the benefit-of-the-doubt rule does not apply, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hite, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.