Citation Nr: 22046148 Decision Date: 08/15/22 Archive Date: 08/15/22 DOCKET NO. 15-00 047 DATE: August 15, 2022 ORDER Service connection for an acquired psychiatric disability is denied. FINDING OF FACT The Veteran does not have a psychiatric disability that had its onset during service or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.655 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to December 1980 and from June 1984 to August 1991. This appeal is before the Board of Veterans' Appeals (Board) from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's appeal in March 2019 with the instruction to obtain relevant records, including from the Social Security Administration. The appropriate records were obtained in October 2019. In April 2021, the Board reopened and remanded the claim with instruction to obtain current treatment records, to request the Veteran to provide information regarding his claimed stressors, and to provide him with a VA examination. Relevant VA treatment records were obtained, but, as discussed in more detail below, the Veteran did not reply to requests for information about his claimed stressors or attend the VA examination scheduled for him. As he did not request the examination to be rescheduled or provide good cause, the Board is therefore satisfied that the instructions in its remands of March 2019 and April 2021 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was previously represented by the American Legion, including at the time of the April 2021 Board remand. However, he revoked that representation in April 2021 and is now proceeding pro se. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for an acquired psychiatric disability Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis Service treatment records do not reflect any treatment for any mental health disabilities. No abnormality was noted at his May 1991 separation examination, but in the accompanying report of medical history he indicated a history of frequent trouble sleeping, depression or excessive worry, and loss of memory or amnesia. At a July 1992 general VA examination, the examiner found the Veteran's psychiatry and personality to be normal. Private treatment records reflect that in August 1994 the Veteran requested treatment for bipolar disorder, stating that he had been depressed for years. He was diagnosed with manic depressive disorder. He was prescribed lithium and continued treatment. VA treatment records reflect that in January 1995 the Veteran was diagnosed as bipolar. He continued treatment. In June 2012, the Veteran submitted a medical report which indicated he has diagnoses of paranoid schizophrenia, chronic schizoaffective disorder and bipolar disorder. The examiner also noted the Veteran suffers from depression and anxiety. Thereafter, lay evidence was submitted in support of the claim. A December 2012 statement from the Veteran's spouse indicated when the Veteran was in service, he was very "moody" and paranoid about anything and anybody. She reported the Veteran's stress level increased during service, he grew more paranoid, and had chronic trouble sleeping. She stated the Veteran's psychiatric disorders had their onset during service and have continued thereafter. Similarly, the Veteran submitted an April 2013 notice of disagreement (NOD) in which he asserted his psychiatric conditions had their onset during service. He stated he experienced psychiatric problems throughout service but could not seek treatment or he would have lost his security clearance. He reported he sought psychiatric treatment upon his separation from service and such treatment continued thereafter. The claim was remanded by the Board in March 2019 for further development, including obtaining records from the Social Security Administration (SSA). Updated VA treatment records were also obtained, which show that the Veteran receives ongoing treatment for his psychiatric impairment. A July 2019 VA treatment record noted bipolar disorder, posttraumatic stress disorder (PTSD), anxiety, depression and panic disorder. The claim was again remanded by the Board in April 2021 for further development, including obtaining medical records, information regarding the Veteran's potential in-service stressors, as well as scheduling him for a VA psychiatric examination to determine the etiology of any diagnosed psychiatric conditions. Thereafter, significant development from VA was attempted with no response from the Veteran. An April 2021 correspondence was sent to the Veteran which indicated he was being scheduled for an examination related to his claim. As noted, the Veteran submitted an April 2021 correspondence which indicated he elected to proceed pro se. His current address was confirmed in this correspondence. Multiple development letters were sent to the Veteran in May 2021 and July 2021. The Veteran was scheduled for a VA examination in July 2021; however, he failed to attend the examination. Thereafter, a January 2022 correspondence was sent to the Veteran which indicated he was being scheduled for another VA examination related to his claim. The Veteran was scheduled for a VA examination in March 2022; however, he also failed to attend this examination. VA contacted the Veteran in March 2022 to confirm his attendance for the VA examination, but no response was received. After a careful review of the record, the Board determines service connection for an acquired psychiatric disorder must be denied. The Board finds that based on the current medical and lay evidence of record, the evidence persuasively weighs against a finding that the Veteran's psychiatric disabilities are etiologically related to service. In the context of a service connection claim, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, the claim shall be adjudicated based on the evidence of record. See 38 C.F.R. § 3.655(b). Good cause includes, but is not limited to, illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655(a). Although a claimant is of course "free to refuse to report for a scheduled VA examination[,] the consequences of that refusal may result in the adjudication of the matter based on the evidence of record." Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). In other words, claimants who fail to cooperate during VA examinations "subject them[selves] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Id. at 181. As discussed above, the Veteran failed to attend two scheduled post-remand VA examinations. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (stating that the duty to assist is not a one-way street). In this case, following the April 2021 Board remand, the Regional Office (RO) undertook the necessary development related to the Veteran's psychiatric claim. This included notifying the Veteran in April 2021 that he was being scheduled for an examination related to his claim and scheduling a July 2021 VA examination, which he failed to attend. Further, a January 2022 notification was sent to the Veteran which indicated he was being scheduled for another VA examination, followed by a scheduled March 2022 VA examination which he failed to attend. Even a March 2022 telephone call to the Veteran from VA was unsuccessful in providing him with a VA examination. The Veteran has not provided good cause for his failure to attend these examinations. Given the absence of a showing of good cause for his failure to appear for examinations, the Board finds that another remand to obtain a VA examination is not warranted and will adjudicate the claim on appeal based on the evidence of record. Turk v. Peake, 21 Vet. App. 565, 569 (2008). The Board determines that the Veteran does not have a psychiatric disorder which is related to service. The evidence shows that he has psychiatric disorders for which he receives VA treatment, including paranoid schizophrenia, schizoaffective disorder, bipolar disorder, depression and anxiety. The Board also acknowledges the consistent lay evidence of record which supports that the onset of his psychiatric symptoms was during service. However, determining the etiology of a psychiatric disorder is a complex medical question outside the competence of non-medical experts. The Veteran, as a lay person, is not shown to possess the competence to provide sufficiently probative evidence as to whether a positive nexus exists between service and a psychiatric disorder. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Thus, the Board affords limited probative value to the lay evidence of record. The Board acknowledges that the Veteran reported symptoms at his separation examination and sought treatment three years after separation for his psychiatric symptoms. However, the medical evidence of record does not establish that a psychiatric disability had its onset during service. The scheduled VA examinations in July 2021 and March 2022 could have supported the claim; however, as addressed above, the Veteran failed to attend the two VA examinations during the appeal period. Wood, 1 Vet. App. at 193; Turk, 21 Vet. App. at 569. Accordingly, the evidence is persuasively against the claim for service connection for an acquired psychiatric disorder. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for an acquired psychiatric disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. GALLAGHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.