Citation Nr: 1749057	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-08 348	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder. 

2.  Entitlement to service connection for a psychosis for the purpose of establishing eligibility for medical treatment only, under the provisions of 38 U.S.C.A. § 1702.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1966 to March 1968. 

This matter comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

In January 2017, the Board remanded the case in order to provide the Veteran with his requested videoconference hearing in front of a Veterans Law Judge (VLJ). 

In May 2017, the Veteran testified at a videoconference hearing in front of the undersigned VLJ.  A transcript of the hearing is of record and has been reviewed. 

Regarding the characterization of the claim, although the Veteran initially submitted claims of service connection for posttraumatic stress disorder (PTSD) and depression, the record indicates that he has been diagnosed with other mental illnesses as well.  Therefore, the Board recharacterizes the issue to entitlement to service connection for an acquired psychiatric disorder to contemplate the Veteran's psychiatric symptoms, however diagnosed.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant's description of the claim, the symptoms described, and the information submitted or developed in support of the claim).

The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran had active service during the Vietnam War era.

2.  The Veteran had not been diagnosed with a psychosis within two years of his separation from service.


CONCLUSION OF LAW

The criteria for service connection for a psychosis for treatment purposes only under 38 U.S.C.A. § 1702 have not been met.  38 U.S.C.A. § 1702(a) (West 2014); 38 C.F.R. § 17.36 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has 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 a duty to assist argument).  Further, as noted in the introduction, the Veteran was provided with a hearing before the undersigned VLJ and the notice requirements were effectively satisfied during the hearing conducted during the appeal period.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  




Applicable Law and Analysis

The Veteran asserts that he developed a psychosis immediately after discharge from service and therefore is entitled to eligibility for medical treatment purposes only under 38 U.S.C Chapter 17. 

Pursuant to the provisions of 38 U.S.C.A. § 1702, 

	(a) Psychosis. 

	For the purposes of this chapter, any veteran of World War II, the Korean 	conflict, the Vietnam era, or the Persian Gulf War who developed an active 	psychosis (1) within two years after discharge or release from the active 	military, naval, or air service, and (2) before July 26, 1949, in the case of a 	veteran of World War II, before February 1, 1957, in the case of a veteran of 	the Korean conflict, before May 8, 1977, in the case of a Vietnam era 	veteran, or before the end of the two-year period beginning on the last day of 	the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall 	be deemed to have incurred such disability in the active military, naval, or air 	service.

	(b) Mental Illness.-For purposes of this chapter, any veteran of the Persian 	Gulf War who develops an active mental illness (other than psychosis) shall 	be deemed to have incurred such disability in the active military, naval, or air 	service if such veteran develops such disability- (1)   within two years after 	discharge or release from the active military, naval, or air service; and (2)  	before the end of the two-year period beginning on the last day of the Persian 	Gulf War.

VA has defined the term psychosis for purposes of presumptive service connection at 38 C.F.R. § 3.384 (2017), which includes: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 

In adjudicating a claim, the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Board acknowledges that the Veteran is competent to give evidence about what he experienced.  See Layno v. Brown, 6 Vet. App. 465 (1994).  However, competency of evidence must be distinguished from weight and credibility which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

On review of all evidence, the Board finds that the criteria to establish service connection for a psychosis for treatment purposes only under 38 U.S.C.A. § 1702 are not met.  Initially, the record shows that the Veteran had active service from April 1966 to March 1968; therefore he is considered a Vietnam War era veteran.  As a Vietnam War era veteran, he must have developed an active psychosis within two years after discharge or release from the active military, naval, or air service.

A review of the Veteran's service treatment records is negative for complaints, treatments, or diagnosis of any acquired psychiatric disorder.  In fact, his separation examination shows a normal psychiatric evaluation. 

In June 1968, three months after his discharge, the Veteran's mother brought him to a Nashville VAMC and indicated that he complains of numbness and drinks too much.  The psychiatrist who assessed the Veteran indicated that he had been under outpatient treatment for pain and anxiety symptoms where hospitalization was needed.  The psychiatrist initially noted that the Veteran's memory was unimpaired for both recent and remote events, and nothing in the hospitalization records was "indicative of the presence of a psychosis or residuals of the same."  The psychiatrist added that "for that matter there is nothing to indicate the presence of a psychoneurosis including anxiety reaction."  During a subsequent assessment, the psychiatrist noted that the Veteran was "not psychotic and competent" and provided a diagnosis of anxiety reaction, chronic, severe.  The Veteran continued his inpatient treatment and in July 1968 was diagnosed with emotionally unstable personality, passive- dependent type with neurotic manifestations (hysteria), including hypochondriacal complaining, subjective exacerbations of somatic sensations, denial, and marked interest in secondary gain.  There are no additional medical record referencing psychiatric complains or diagnoses within the two years after service discharge.

Accordingly, the Board finds that from the Veteran's date of discharge in March 1968 until March 1970, a diagnosis of a psychosis has not been demonstrated.  

The Board recognizes the Veteran's belief that, during service, he had been hearing and seeing things; he states that he had had hallucinations and delusions.  He felt that he was still in service at that time, but was not really sure where he was at that time.  He additionally testified that upon his return home from service, his family found him wandering outside wearing nothing but shorts.  See May 2017 hearing transcript. 

Importantly however, a diagnosis of a "psychosis" falls outside the realm of common knowledge of a lay person such as the Veteran.  In this regard, while the Veteran can competently report observable psychiatric symptoms, rendering a diagnosis of a "psychosis" requires medical expertise that the Veteran has not demonstrated he possesses.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Here, the competent medical evidence dated within two years of service discharge specifically reflects that the Veteran was not psychotic and had not been diagnosed with a psychosis.  Although the Veteran sincerely believes that he had a psychosis during the applicable time period, the competent medical evidence outweighs his lay statements, which carry little probative value in terms of establishing a medical diagnosis.

A psychosis was not shown within the two-year period after the Veteran's discharge from active duty service, the § 1702 (a) claim must fail.   

Finally, the Board recognizes that the Veteran had indeed been hospitalized for psychiatric problems just months after service and was diagnosed with mental illnesses other than a psychosis.  To the extent that the Veteran asserts that  § 1702(b) is applicable to his claim, it is not as such portion of the regulation  pertains solely to veterans of the Persian Gulf War era, so not applicable here.   

For the reasons expressed above, the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

Entitlement to service connection for a psychosis for treatment purposes only under 38 U.S.C Chapter 17 is denied. 


REMAND

The Veteran also seeks service connection for a psychiatric disorder for VA compensation purposes.  On review, an additional VA examination is necessary to determine the nature and etiology of any currently diagnosed psychiatric disorder.

In addition, during his May 2017 hearing testimony, the Veteran indicated that he receives disability benefits from the Social Security Administration (SSA).  Because SSA records are potentially relevant to the Board's determination, any available SSA records should be obtained on remand.  Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any outstanding VA medical evidence, specifically to include those dated since the most recent statement of the case.  If no additional records are available, a formal documentation showing unavailability should be attached to the Veteran's file.

2.  Send the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to VA, and with his consent, obtain any available records from any identified private mental health providers.  **If new records are identified associate them with the claims file prior to scheduling the Veteran for an examination.

3.  Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination.  All attempts to fulfill this development should be documented in the claims file.  If the search for these records is negative, that should be noted and the Veteran must be informed in writing.

4.  After completing the above development, provide the Veteran with a VA examination by a medical examiner with the requisite training and experience in psychiatric disorders to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder.  Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis.  The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. 

After a thorough review of the claims file, including May 2017 hearing testimony and examination of the Veteran, the examiner should: 

(a) Identify all acquired psychiatric disorders diagnosed since the date of claim.  

*In doing so, reconcile with the current findings all identified prior diagnoses of an acquired psychiatric disorder, to include prior diagnoses of: (i) emotionally unstable personality passive- dependent type with neurotic manifestations (hysteria), including hypochondriacal complaining, subjective exacerbations of somatic sensations, denial, and marked interest in secondary gain (ii) anxiety reaction, chronic, severe (iii) depression, NOS (iv) mood disorder, NOS, and (v) adjustment disorder with depressed mood.  If any prior diagnosis cannot be reconciled with the current findings, explain why.

(b) Then, for each current psychiatric disorder, provide an opinion as to whether it more likely than not (50 percent or greater) had its onset during active service or is otherwise related to it.

The examiner should provide a complete rationale for the opinion, whether favorable or unfavorable, and cite to specific evidence of the record, as necessary.  

5.  After completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal.  If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response.  Thereafter, return the file to the Board for further appellate consideration. 


The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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