Citation Nr: 21032505 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-31 976 DATE: May 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT An acquired psychiatric disorder diagnosed as mental retardation is a developmental disorder and the preponderance of the evidence shows that the Veteran's other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression were not present in service or until many years thereafter and they are not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1978 to June 1978. In an October 2018 Board of Veterans' Appeal (Board) decision issued by a different Veterans' Law Judge it, among other things, denied the Veteran's application to reopen his claim of service connection for an acquired psychiatric disorder. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In an April 2020 decision, Judge Falvey reversed and remanded the October 2018 decision to the extent that it denied the Veteran's application to reopen his claim of service connection for an acquired psychiatric disorder. Given the April 2020 Court decision, the Board had characterized the issue on appeal as a claim of service connection for an acquired psychiatric disorder instead of an application to reopen. Initially, the Board notes that additional evidence was added to the claims file since the regional office (RO) issued the August 2016 statement of the case (SOC). However, in April 2021 the Veteran's representative waived RO review of this evidence. See 38 C.F.R. § 20.1304(c). Moreover, even if the Veteran's representative had not waivered RO review of this evidence, the Board finds that it need not delay adjudication of the appeal to have the RO review the evidence, or to obtain a waiver of RO review, from the Veteran. The Board has reached this conclusion because it finds the post-August 2016 evidence is not pertinent because it just continues to document the Veteran's post-service complaints, diagnoses, or treatment for acquired psychiatric disorders many years after service and this fact was already part of the record at the time the RO issued the April 2016 SOC. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to a veteran when additional pertinent evidence is received after a SOC has been issued). In addressing this case, the Board must first note for the record an important issue: As documented by the RO, the Veteran altered several of his original and duplicate service treatment records to show injury and symptoms that he did not originally report during service. It is important for the Veteran to understand that this is a very serious violation of federal law. The Board has reviewed the issue above in detail. The Board has considered referring the Veteran's actions to the Adjutant General's Office for a criminal investigation which could result in, among other things, a lifetime bar to all VA benefits and/or criminal prosecution. However, given the fact that the record shows (as will be noted below) that the appellant is functioning in the low range of intelligence due to mental retardation and may not have fully understood the consequences of his actions, the undersigned, within the limited focus of this case, has decided to take no further action at this time as to his altering official government records except to warn him that he should refrain from taking any similar actions in the future because it could result in serious consequences. The decision of the undersigned to not remand this case for criminal persecution does not limit the actions others (the RO, other Board Judges, any other part of the VA, or the Veteran's Court itself), either now or in the future, to address or raise this issue. The Board believes it must focus its attention in this case to the order of the Court. Lastly, the Board notes that in October 2018 the Board also remanded a claim of service connection for a back disability. However, this issue will not be addressed in the below decision because the Veteran subsequently elected to have this issue adjudicated under the Appeals Modernization Act (AMA) review system. See 84 Fed. Reg. 138 (Jan. 18, 2019). The Service Connection Claim The Veteran claims that service connection is warranted for an acquired psychiatric disorder because it is due to his military service. Specifically, and as noted in the April 2020 Court decision, the Veteran claims that his current acquired psychiatric disorder were caused by the Army stopping him from taking his learning disability medication while on active duty which caused him to begin hearing voices and experience feelings of anxiety, stress, and nervousness. In the alternative, it is claimed that his current acquired psychiatric disorder were caused by his gas mask training while on active duty which training caused him to thereafter experience anxiety like symptoms. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As to a current disability, the post-service record shows the Veteran being diagnosed with mental retardation (see Social Security Administration (SSA) disability determination dated in August 1993), generalized anxiety (see Dr. Felicitas Gatchalian evaluation dated in November 1996), schizophrenia (see Dr. Winston Kitchin record dated in June 1997), and depression (see St. Joseph Health Center treatment record dated in January 2008). As to the lay claims from the Veteran and others found in the record, the Board finds that the Veteran is competent to report on the events he experiences while on active duty as well as manifestations of his disability and other lay persons are competent to report on observable manifestations of his disability. See Davidson, supra. Specifically, and as noted in the April 2020 Court decision, in a July 2017 affidavit the Veteran explained that during service the Army stopped him from taking his learning disability medication and that this caused him to begin hearing voices and experience feelings of anxiety, stress, and nervousness. The Veteran also described experiencing feeling of anxiety following his gas mask training while on active duty. The Veteran also stated that he had not had these symptoms before service and that his family and friends noticed the symptoms, along with other psychological problems, behavioral issues, and aggressive tendencies, only after he left service. Moreover, and as also noted in the April 2020 Court decision, "...there is no question that the appellant is competent to relate the symptoms he suffered during service and state that his symptoms began after he was deprived of medication... [,]... [h]e may also competently state that friends and family told him that, after service, he exhibited psychiatric problems that had not been evident before... [and]... [t]here is no evidence in the record to suggest that the veteran lacked the competence to address the matters in the 2017 affidavit." With regard to the Veteran's diagnosis of mental retardation, the Board notes that a September 1976 pre-service private psychiatric treatment record indicates that the Veteran had previously undergone IQ testing in 1964, 1965, 1968, 1972 and 1975. In the September 1976 report, the examiner noted that prior testing had shown a very low level of functioning. The examiner concluded that the Veteran was currently functioning in the Educable Mentally Regarded range of intelligence and that his scores were indicative of a low level of functioning for his age. However, the Board also notes that certain conditions, to include congenital or developmental defects, personality disorders, and mental deficiency as such, are not "diseases" or "injuries" within the meaning of applicable legislation and may not, of themselves, be service connected. In other words, service connection for mental deficiency is barred by law. See 38 C.F.R. §§ 3.303(c); 4.9. Accordingly, the Board finds that service connection for an acquired psychiatric disorder diagnosed as mental retardation (a developmental disorder) must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). As to all the Veteran's other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression, the Board notes that service treatment records show no evidence of treatment for, or a diagnosis of, any psychiatric disorder that the Board can service connect. In fact, at the January 1978 pre-entrance examination and the May 1978 examination the Veteran specifically denied having a history of trouble sleeping, depression, excessive worry, and nervous trouble of any kind and his psychiatric examinations were normal. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As noted above, there is no question that the Veteran is competent to relate the symptoms he suffered during service and state that his symptoms began after he was deprived of medication. The key question, however, is if the Veteran is credible in these and other statements. The Board has reviewed this case in detail. The Board does not find the Veteran's claims regarding having problems with observable adverse psychiatric symptomatology while on active duty after not being allowed to take his medication and/or after gas mask training credible. The Board has reached this conclusion because the record shows the Veteran altered his service treatment records to obtain VA benefits and, therefore, he has shown himself to not be a credible historian. Beyond this, his statements, over time, have been unclear and inconstant. The Veteran's own statements in service do not support his current recollection of events. The Veteran's statements regarding the events he alleges occurred during service more than 40 years ago are not credible, including, but not limited to, having problems with observable adverse psychiatric symptomatology while on active duty. The Board finds that the most probative evidence of record shows that the Veteran did not sustain a disease or injury while on active duty that caused his other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression despite the Veteran's claims of experiencing observable symptoms of an acquired psychiatric disorder while on active duty following his stopping to take his learning disability medication and/or following gas mask training. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Overall, the Board must find that the service records provide highly probative evidence against this claim which outweighs the Veteran's lay claims to the contrary. Similarly, the post-service record does not show the Veteran being diagnosed with a psychosis in the first post-service year. Therefore, the Board finds that the presumptions found at 38 C.F.R. § 3.309(a) do not help the Veteran establish service connection for an acquired psychiatric disorder. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.307. More importantly, the Board finds that the record does not show that the Veteran had a continued problem with any other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression in and since service. In fact, as noted above, at the May 1978 examination the Veteran specifically denied having a history of trouble sleeping, depression, excessive worry, and nervous trouble of any kind and his psychiatric examination was normal; providing highly probative evidence against the claim. It is important for the Veteran to understand that, at that key point at his discharge from service, it is the Veteran himself that provides evidence against his own claim. Likewise, and more importantly, the post-service record is negative for complaints, diagnoses, or treatment for any acquired psychiatric disorder, other than mental retardation (see SSA disability determination dated in August 1993), until 1996 or later (generalized anxiety was first diagnosed in in November 1996, schizophrenia was first diagnosed in June 1997, and depression was first diagnosed in in January 2008); almost two decades after his 1978 separation from his 3 months and 1 day of active duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(b). The post-service treatment records provide highly probative evidenced against this claim. This fact would seem to support the findings of the examiner in service who provided evidence against the claim, as noted above. The Board notes, as did the Court in its' April 2020 decision, that the Veteran as well as his friend reported, in substance, that the appellant had observable symptoms of an acquired psychiatric disorder in and since service where he was forced to stop taking his learning medication and underwent gas mask training. Moreover, the Veteran reported that his family and friends noticed that he had observable problems with an acquired psychiatric disorder since service. In addition, and as noted by the Court in the April 2020 decision, lay persons are competent and credible to report on what comes to them via their own senses. See Davidson, supra. However, the Board again finds that the Veteran's claims regarding having problems with observable adverse psychiatric symptomatology while on active duty after not being allowed to take his medication and/or after gas mask training and since that time are not credible. The Board has reached this conclusion because the record shows the Veteran altered his service treatment records in a clear attempt to obtain VA benefits and, therefore, he has shown himself to not be a credible historian. Id. In other words, the Board does not believe the Veteran's claims regarding continuity of symptomatology because, by altering his service treatment records, he has shown himself to be uncredible. Other facts support this finding as well, including the Veteran's own prior statements in service and after service, in which the Veteran failed to indicate a problem related to service until he filed a claim many years after service. Moreover, even if the Veteran was a credible historian, the Board again notes that his medical records are negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder, other than mental retardation, for almost two decades after his separation from his 3 month and 1 day of service in 1978, more than 40 years ago. The Board also notes that the first time the record documents claims that his acquired psychiatric disorders started within his three months of active duty and continued to the current time is after the Veteran filed his first claim of service connection for an acquired psychiatric disorder in 2007 (many years after service). Records prior to the Veteran filing the claim simply provide evidence against his current recollection of events. The Board finds that the above evidence is highly probative evidence against the claim of continuity that it cannot overlook. See Owens, supra. Given this record, the Board finds that the service medical records and the post-service medical evidence provides highly probative evidence, overall, against this claim. Id. The Board also finds that, as explained above, the Veteran is not a credible historian. Id. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression in and since service despite the lay claims of having observable problems with an acquired psychiatric disorder since being forced to stop taking his learning medication and undergoing gas mask training while on active duty. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(b). The Board also finds that the records does not show that the Veteran's other acquired psychiatric disorders, to include a generalized anxiety disorder, schizophrenia, and depression are due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, and notwithstanding the Veteran's representative's claims to the contrary, the Board finds that the appellant does not meet the McLendon v. Nicholson, 20 Vet. App. 84-86 (2006) criteria to be afforded a VA examination to obtain an etiology opinion. See Owens, supra. Specifically, the Board find that it may adjudicate the appeal without providing the Veteran with a VA examination because, as discussed above, service and post-service medical records are negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder until almost two decades after the Veteran's 3 months and 1 day of active duty in 1978. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). Likewise, the Board has reached this conclusion because it does not find the Veteran's lay claims regarding observable adverse psychiatric symptomatology while on active duty, after not being allowed to take his medication and/or after gas mask training, and since that time probative because, as discussed above, he altered his service treatment records; in other words, the Board finds that he has shown himself to not be a credible historian. See Davidson, supra. The Veteran's statements to an examiner could not be trusted, therefore limiting the value of such a medical opinion. The Board also finds that, given the above record, that the other lay claims found in the record, standing alone, are not enough to trigger VA's duty to provide the Veteran with a VA examination to obtain an etiology opinion. See Paralyzed Veterans of America, et. al., supra; Duenas, supra. The Board cannot ignore clear indications of evidence tampering. Such facts undermine the Veteran's statements, and those statements that he has submitted to support his appeal to the Board. Lastly, the Board finds that a remand to provide the Veteran with a VA examination is not required because any etiology opinion provided by that examiner would be purely speculative given the record, where service and post-service medical records are negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder until almost two decades after a veteran's 3 months and 1 day of active duty service in 1978 and the lay claims from the Veteran not being credible given a documented history of providing VA with falsified records. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The falsification of records cannot be ignored: It strongly suggests to the Board that the Veteran is filing a claim that has no merit. Simply stated, if the Veteran truly believed that his claim was valid, there would be no reason for him to alter documents. The valid documents the Board does have (prior to the Veteran filing the claim for VA benefits) provide, overall, highly probative factual evidence against this claim to the point that even if a medical examiner provided a positive medical nexus opinion, that medical opinion would be outweighed by the serious credibility issue in this case. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In addition, the Board finds that the lay claims from the Veteran and others cannot provide the missing nexus opinion because they do not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression). See Davidson, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran's other acquired psychiatric disorders to include a generalized anxiety disorder, schizophrenia, and depression is not due to his military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d); also see Rabideau, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.9. Simply stated, the service records and the post-service treatment records in this case provides highly probative evidence against this claim that the Board cannot ignore. (Continued on the next page) In reaching the above conclusion, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.