Citation Nr: 0810899 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-31 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from February 1975 to January 1979. She also served with the Air National Guard from February 1979 to May 1993. This appeal arose before the Board of Veterans' Appeals (Board) from a September 2004 rating decision of the Anchorage, Alaska, Department of Veterans' Affairs (VA), Regional Office (RO). The veteran testified at a Video Conference hearing in December 2005. In a September 2006 decision, the Board denied entitlement to service connection for diabetes mellitus, arthritis of the hands, hypothyroidism, and bilateral bunionectomies; remanded the claims of service connection for degenerative joint disease of the knees, which the RO subsequently granted; and remanded the acquired psychiatric disorder and lumbar spine claims to the RO for further development and consideration. In a November 2007 letter, the Board informed the veteran that the Veterans Law Judge who presided at the December 2005 hearing, who would ordinarily have participated in making the final determination of the claim, was no longer employed by the Board and that the veteran had the right to another hearing. If she did not respond within thirty days from the date of the letter, the Board would assume that she did not want an additional hearing and proceed accordingly. See 38 C.F.R. § 20.707. Because the veteran did not respond within 30 days, she waived the right to an additional hearing. The case has accordingly been reassigned. FINDINGS OF FACT 1. The veteran's acquired psychiatric disorder clearly and unmistakably existed prior to service and was not aggravated during service. 2. The preponderance of the evidence does not causally or etiologically link the veteran's current low back disability to service. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder preexisted active service, and was not aggravated during military service. 38 U.S.C.A. §§ 1110, 1111, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). 2. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA provided the appellant with notice in September 2006 and January 2007, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in an August 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. Mayfield, 444 F.3d at 1328. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in her possession that pertains to the claims. VA has obtained service medical records and afforded the veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file. The veteran was afforded a psychiatric examination which provided an opinion regarding the onset of the veteran's acquired psychiatric disorders and whether they were aggravated in service. Regarding the lumbar spine claim, the veteran has claimed that she was seen in August 1991 by a private physician, for a back injury she claimed to have suffered when she was serving on active duty for training while lifting an airplane wheel. Of record is a private chiropractor note, dated in August 1991, indicating that the veteran complained of upper thoracic pain due to an injury incurred while lifting an airplane wheel. The Board remanded the claim in September 2006, in part, to obtain the information necessary to obtain these records, as the evidence of record was silent for any mention of a lumbar spine disability incurred while lifting the airplane wheel. However, the veteran did not respond to request for further information and the Board will proceed with the claim based on the evidence of record. As there is no evidence establishing that an event, injury, or disease occurred in service or and sufficient competent medical evidence on file for the VA to make a decision on the claim, a examination is not warranted in connection with this claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Analysis Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during such service. 38 U.S.C.A. §1131; 38 C.F.R. §§ 3.303(a), 3.304. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A. Acquired Psychiatric Disorder The veteran's service medical records show that on her January 1975 entrance examination she had a history of a depressive reaction for which she had been treated between November 1972 and September 1973. The objective examination, however, was normal. She and her husband were seen for martial counseling and she was seen twice in 1978 for psychotherapy (no details were provided). The report of a January 1979 separation examination included a normal psychiatric evaluation. In the 1990's, the veteran sought treatment for depression. In a December 1998 private psychiatric evaluation, she stated that she had been treated for depression at the age of 12, and first began seeing a psychiatrist in 1971. Pursuant to the Board remand, a VA mental disorders examination was conducted in April 2007. The examiner reviewed the veteran's claims file. The examiner noted that the veteran has stated that she felt depressed since she was 12, and was referred for psychiatric treatment at age 16. It was noted that her depression worsened dramatically after she was separated from the National Guard in 1993; she was admitted to a psychiatric ward five months after separation from service. The veteran attributed her depression to the loss of her National Guard career. The diagnoses were major depressive disorder, recurrent; mood disorder due to diabetes; alcohol abuse in full, sustained remission; and borderline personality disorder. The examiner stated that the veteran suffered from depression, alcoholism, and borderline personality disorder prior to her enlistment in February 1975. The examiner further commented that he did not feel that the veteran's period of service in the Air Force or Air National Guard aggravated her depression or personality disorder beyond its natural progression. The examiner also noted that the veteran developed diabetes mellitus while she was on active duty in the National Guard. He noted that the mood disorder due to her diabetes mellitus is superimposed over her preexisting recurrent major depressive disorder and borderline personality disorder. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111. Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Psychiatric examination on entrance into service was normal. The veteran is entitled to the presumption of soundness regarding her psychiatric fitness. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the medical evidence of record clearly and unmistakably shows that recurrent major depressive disorder and borderline personality disorder were present prior to service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). The base line to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The April 2007 VA examination was undertaken to specifically address the question of in-service aggravation and the examiner opined that the veteran's major depressive disorder and borderline personality disorder did not increase beyond the natural progression of the disease during service. There is no competent medical evidence to the contrary. As there was no increase in disability during service, a lack of aggravation is shown. Wagner, 370 F.3d at 1089. The veteran and her representative contend that that psychiatric examiner, and her private psychiatrist, B.B.J., M.D., noted that her mood disorder was caused by her diabetes mellitus, a condition which began while she was a member of the National Guard. They maintain that she is entitled to service connection for a mood disorder. A claim of service connection for diabetes mellitus was previously denied by the Board. Therefore, service connection for a mood disorder cannot be granted on a secondary basis. The veteran did not receive treatment for a mood disorder during any period of active duty or ACDUTRA. If a claim relates to period of ACDUTRA, a disease or injury resulting in disability must have manifested itself during that period. See Paulson v. Brown, 7 Vet. App. 466, 469-70 (1995). Based upon a review of the applicable medical records and the veteran's own testimony, a mood disability did not manifest during any period of ACDUTRA. As such, there has been no showing of in- service incurrence or aggravation of disease or injury, and this claim also must fail on a direct basis. B. Lumbar Spine Disability The veteran's service medical records from her period of active duty from February 1975 to January 1979 contain no complaints of or treatment for a lumbar spine disability. January 1975 entrance examination and the January 1979 separation examinations are both negative for this disorder. The veteran's Air National Guard records contain the reports of periodic examinations conducted in November 1982 and September 1986, which were silent for any complaints, defects or diagnoses referable to the low back. In a January 1991 Report of Medical History, the veteran answered "no" to whether she ever had or currently had recurrent back pain. The report of an examination conducted as part of a Medical Evaluation Board, dated in September "1991," also included a normal clinical evaluation of the spine; no pertinent defects or diagnoses were noted. The Board notes that a Report of Medical History and narrative summary prepared as part of the Medical Evaluation Board are dated in August 1992 and are also silent for any complaints or findings referable to the low back. A private chiropractic treatment note dated in August 1991, reported that the veteran complained of severe upper thoracic spine pain from lifting the landing gear of an airplane in July 1991. Diagnostic testing and examination were noted to indicate a brachial plexus nerve involvement (low neck nerve disc problem). Another chiropractic treatment note dated in January 1992, indicated that the veteran fell off an aircraft maintenance stand at work and complained of severe low back and groin pain. On the musculoskeletal portion of a July 1995 private examination, there were no significant complaints. In March 2002, she was involved in a motor vehicle accident, and was subsequently diagnosed with L4-L5 disc protrusion. The veteran testified that her lumbar spine disability began when she lifted a wheel of a C-130 airplane while on duty with the National Guard, and was sent to a private chiropractor. There is no objective indication that a lumbar spine disability was present during her active duty or any subsequent period of ACDUTRA or INACDUTRA. The veteran told the private chiropractor in August 1991 that she injured her upper thoracic spine lifting the C-130 airplane wheel. She made no mention of any lumbar spine condition. The Board notes that the Medical Evaluation Board and associated reports and Medical History, prepared in August 1992, after the August 1991 private treatment, did not include any complaints or findings referable to a back disability. There is no indication that her subsequently diagnosed conditions of the lumbar spine were the result of an injury incurred while serving during a period of ACDUTRA or INACDUTRA. With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Espiritu, 2 Vet. App. at 494. Therefore, there is no evidence to support a grant of service connection on either a direct or a presumptive basis and the claim must be denied. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs