Citation Nr: 21026797 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-20 470A DATE: May 4, 2021 ORDER Entitlement to service connection for any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizophrenia, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran first claimed service connection for an acquired psychiatric disorder on April 15, 1999 and was denied service connection in a December 1999 rating decision. 2. In December 2015, the Board issued a decision finding that the December 1999 rating decision was final and that new and material evidence had been received to reopen the claim for service connection for an acquired psychiatric disorder. 3. The instant claim for PTSD and schizophrenia is the same as the previously denied claim for PTSD. 4. The Veteran failed to report, without good cause, to a scheduled VA examination that was necessary to decide his claim for entitlement to service connection for any acquired psychiatric disorder. 5. The Veteran is not service-connected for any disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.384, 3.655. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1974 to July 1974 with additional reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Board remanded these matters for additional development. In this regard, the Board ordered the RO to obtain the Veteran's Social Security Administration (SSA) records, attempt to obtain his treatment records from a period of incarceration in the Florida Department of Corrections (DOC), and to schedule the Veteran for a VA examination. In this regard, the RO obtained the Veteran's SSA records, sent a VA Form 21-4142 to the Veteran to allow the RO to obtain the DOC treatment records and any relevant private treatment records, and scheduled him for a VA examination. See January 2016 development letters, SSA records received January 2016, and August 2019 VA examination request. Accordingly, the Board finds the RO substantially complied with the December 2015 Board remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has recharacterized the Veteran's claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to service connection for any acquired psychiatric disorder, to include PTSD and schizophrenia, is denied. The Veteran asserts that his current psychiatric disorder, to include PTSD and schizophrenia, are due to his active duty service. See April 2012 Claim, November 2012 Notice of Disagreement (NOD), May 2013 VA Form 21-4138, May 2013 VA Form 21-0781. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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 disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition to the elements described above regarding service connection generally, service connection for PTSD requires (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of PTSD related to the veteran's fear of hostile military or terrorist activity must be confirmed by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. Id. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of 38 C.F.R. § 3.655 as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. 38 C.F.R. § 3.655(a). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. Initially, the Board notes that the Veteran claimed service connection for PTSD in April 1999, February 2003, and April 2003. In April 2012, the Veteran claimed service connection for PTSD and schizophrenia. In his June 2014 VA Form 9, the Veteran sought to perfect his appeal as to schizophrenia and not PTSD. In this regard, the Board notes that while the Veteran consistently claimed PTSD, he has not consistently been diagnosed with the same. See, generally, VA treatment records, SSA records, Florida DOC records; see also June 2014 private psychological examination. In March 2012, the Veteran submitted to a clinical evaluation and mental status examination in conjunction with his claim for SSA disability benefits. See SSA records. The examiner diagnosed the Veteran with PTSD based on the Veteran's complaints of trouble sleeping and paranoia and opined that it was due to a plot by a prison guard to have him stabbed while in prison, though the Veteran was not stabbed. See March 2012 SSA psychological report. At his August 1999 VA psychiatric assessment, the Veteran's chief complaint was being paranoid. See August 1999 VA treatment records. In April 2012, upon his release from prison, the Veteran complained of being paranoid, trouble sleeping, and nightmares. See April 2012 VA treatment records. In July 2014, the Veteran reported mood swings, paranoia, difficulty trusting people, and auditory and visual hallucinations. See July 2014 VA examination report. The Veteran also provided a June 2014 private psychological report that noted his primary psychotic feature was "persecutory delusions." Here, the Board finds that the instant claim for PTSD and schizophrenia is the same as the previously denied claim for PTSD alone and does not amount to a separate claim. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Throughout the appeal period, or from April 30, 2012, the Veteran has been diagnosed with dysthymic disorder, PTSD, anti-social personality, adjustment disorder with cocaine abuse (in remission per Veteran), ETOH dependence (in remission per report), cannabis abuse (in remission per report) with anti-social personality disorder, schizophrenia with unspecified depressive disorder, and a history of chronic paranoid schizophrenia with anti-social personality disorder. See April 2012, July 2014 VA treatment records; March 2012 SSA psychological evaluation, June 2014 private psychological examination, November 2016 private emergency room treatment records. Notably, the Veteran reported still engaging in the use of cocaine in April 2017. See SSA records. Thus, element one of service connection is met. Regarding element two of service connection, an in-service incurrence or aggravation of a disease or injury, the Veteran asserts that when he began his active duty service in March 1974, he became fearful in bootcamp that he would be required to serve in the Republic of Vietnam, that this fear drove him to go AWOL (absent without leave) from March 22, 1976 to May 12, 1977 when he was a reservist, and that he now experiences nightmares regarding combat. See May 2013 VA Form 21-0781, May 2013 VA Form 21-4138, June 2014 private psychological examination report. The Board notes the Veteran never served outside of the continental United States, did not engage in combat, and that his service treatment records (STRs) are completely silent as to any complaints, treatment, symptoms, or diagnoses related to a psychiatric disability. Indeed, both the Veteran's enlistment and separation reports of medical examination indicate he was in good mental health both at both his entry and separation from active duty. See STRs. To the extent the Veteran asserts that he was in fear of deployment to Vietnam while he was in boot camp, the Board notes that the Veteran signed a sworn oath on February 13, 1974 that he was voluntarily enlisting at a time when the Vietnam Conflict had been ongoing for well over a decade. See 38 C.F.R. § 3.2. Accordingly, while the Veteran is competent to report his personal feelings about being afraid of deployment to Vietnam, the Board does not find the Veteran credible in this regard and accordingly assigns very little probative weight to this assertion. The VA sought additional details about the Veteran's in-service stressor or incurrence and requested any relevant treatment records in development letters mailed in May 2012 and January 2016. The Veteran returned a single VA Form 21-4142 in May 2013 listing only VA treatment providers for the period of April 2012 to May 2012. Likewise, the Veteran offered no further in-service incurrence or stressful event. Critically, the Veteran was not on active duty at the time he received orders to active duty or when he was AWOL. Thus, any psychological disorders arising from the stress of being ordered to active service would not, alone, allow for service connection for compensation purposes. See 38 C.F.R. § 3.4 (b). Regardless, the December 2015 Board remand ordered that the Veteran attend a VA examination to determine if the veteran's fear of hostile military or terrorist activity was the proximate cause of his current psychiatric disorder, to include the March 2012 diagnosis of PTSD. Accordingly, regarding element two of service connection, the Board concedes the Veteran was in fear of deploying to Vietnam while serving as a reservist in the United States. Regarding the final element of service connection or the second element of PTSD service connection, or nexus, the June 2014 private psychologist who diagnosed schizophrenia with unspecified depressive disorder opined that these psychiatric disorders had their onset during active duty service and continued to the present. In support of his opinion, the private psychologist considered a Veteran lay statement and two additional lay statements. In a June 2014 lay statement dated November 2013, E.G. wrote that it was his opinion that the Veteran's personality was different after returning from basic training in 1974 and that he noticed the Veteran was easily aggravated and always looking around with a blank stare in his eyes. In a separate lay statement received in June 2014 and dated September 2013, K.W. wrote since she met the Veteran he tried to commit suicide three times, demonstrated mood swings, anxiety, had nightmares, trouble sleeping, and that the Veteran was never the same after he got out of the Army. The Board notes that lay-persons are competent to report that which comes to them from their senses, such as relaying the Veteran's reports of nightmares or witnessing the Veteran being easily aggravated, and has no reason to doubt the credibility of either K.W. or E.G., though they never expressed their relationship to the Veteran or for how long they had known the Veteran. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). While K.W. and E.G. are competent to report witnessing symptoms and relaying the Veteran's statements, they are not competent to provide a diagnosis or determine that these symptoms were manifestations of any acquired psychiatric disorder. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Similarly, while the Veteran is competent to report symptoms, he is not competent to report that his current psychiatric disorders are related to his active duty service from March to July 1974. Id. See also May 2013 VA Form 21-0781, May 2013 VA Form 21-4138, November 2012 NOD. Critical to the June 2014 private examiner's opinion, however, is his failure to discuss the fact that the Veteran was only diagnosed with alcohol and cocaine dependence prior to his incarceration in 2003. While incarcerated, DOC records note the Veteran had no mental health concerns and the Veteran did not seek care for mental health concerns during his imprisonment from 2003 to 2012 or from 2015 to 2016. Notably, the first diagnosis, per the available evidence, was rendered in March 2012, nearly 40 years after his discharge from active duty. 38 C.F.R. § 3.301. See also August 1999 VA treatment records, Florida Department of Corrections Health Records, SSA Records. Accordingly, 38 C.F.R. § 3.384 is not for application. 38 C.F.R. §§ 3.307, 3.309(a). The June 2014 private psychologist did not discuss the March 2012 clinical evaluation conducted by a psychologist in conjunction with the Veteran's SSA disability claim wherein the Veteran failed to report any concerns regarding his active duty. In fact, the March 2012 examiner related the Veteran's psychiatric disorders to his parental abandonment, being placed in abusive foster care environments, and being physically threatened while in prison. The March 2012 psychologist findings are consistent with the April 2012 VA psychological assessment, also not discussed by the June 2014 VA examiner, wherein the Veteran reported his chief complaint was paranoia flowing from physical threats in prison and significant childhood trauma. In the present case, it is clear that evidence unfavorable to the Veteran's claim was not discussed by the June 2014 private psychologist and as such, all procurable and assembled data was not fully considered by the June 2014 examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate medical examination must consider the Veteran's pertinent medical history); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's 'evaluation will be a fully informed one." (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Additionally, deficiencies in a private medical opinion, such as the omission of relevant information or lack of rationale, do not fall within Savage's narrow exception and therefore do not trigger the duty to obtain clarification. Savage v. Shinseki, 24 Vet. App. 259, 269 (2011). Accordingly, the June 2014 private psychological opinion is of no probative value. In this regard, the Board now finds and agrees with the December 2015 Board remand that entitlement to service connection for any acquired psychiatric disorder cannot be established without a VA examination. 38 C.F.R. § 3.655(a). See also Turk v. Peake, 21 Vet. App. 565, 569 (2008). In August 2019, the RO scheduled the Veteran for a VA psychiatric examination. See October 2018 VA Form 20-572, August 2019 VA examination request. In September 2019, the VA was informed the Veteran failed to report for his scheduled VA examination. Thus, the question is whether the Veteran has provided good cause for missing his VA examination. The Board finds that he has not. In December 2019, the RO issued a Supplemental Statement of the Case informing the Veteran that entitlement to an acquired psychiatric disorder could not be established as the Veteran failed to report to his scheduled VA examination. In a December 2019 letter, the Veteran's attorney confirmed receipt of the same. In his March 2020 Appellate Brief, submitted by the Veteran's counsel, there is no discussion regarding the Veteran's failure to report to the necessary VA examination or any reason provided for his failure to report. The duty to assist the Veteran in the development of evidence pertinent to his claim is not a "one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Id.; see also Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that it is the burden of the veteran to keep the VA apprised of his whereabouts and if he does not keep VA informed, "there is no duty on the part of the VA to turn up heaven and earth" to find him or her). The Veteran did not provide a statement of cause for missing his most recent VA examination. Accordingly, the Board cannot find the Veteran failed to report for good cause as no cause whatsoever has been provided. See 38 C.F.R. § 3.655; see also Turk v. Peake, 21 Vet. App. 565, 569 (2008). As such, the Veteran's reopened claim for a benefit which was previously disallowed must be denied on this basis alone. 38 C.F.R. § 3.655(b) (When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied). Notwithstanding the Veteran's failure to report to the VA psychiatric examination without good cause, the June 2014 private examiner's opinion is of no probative value and there is no other competent evidence in favor of the claim. Accordingly, element three of service connection, or nexus, is not met. Accordingly, the preponderance of the evidence is against the claim of entitlement to service connection for any acquired psychiatric disorder. As such, the benefit of the doubt doctrine is not for application, and service connection must be denied. 38 U.S.C. § 5107(b). 2. Entitlement to a TDIU is denied. TDIU is granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability or disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. The Veteran is not service connected for any disability. Therefore, he is ineligible for consideration of TDIU. Thus, as a matter of law, the claim must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.