Citation Nr: 0810985 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-30 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for depression. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from January 1966 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Although the veteran was scheduled for a Board hearing on April 9, 2008, he submitted a letter in March 2008 stating that he was unable to attend the hearing and that he wished to withdraw his hearing request. Therefore, the hearing is considered withdrawn. FINDING OF FACT The veteran's depression was not present in service or manifested within one year of his discharge from service, and it is not etiologically related to service. CONCLUSION OF LAW Depression was not incurred or aggravated during active service, and its incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with notice required under the VCAA, by a December 2003 letter. This letter specifically informed the appellant that he should submit any pertinent evidence in his possession. Although the appellant has not been provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability for which service connection is sought, the Board finds that there is no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As explained below, the Board has determined that service connection is not warranted for the claimed disability. Consequently, no disability rating or effective date will be assigned, so the failure to provide notice with respect to those elements of the claim was no more than harmless error. The record also reflects that all pertinent available service records and all available post-service medical evidence identified by the appellant have been obtained. The veteran has not identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. Therefore, the Board is also satisfied that VA has complied with the duty to assist provisions of the VCAA and the pertinent implementing regulation. In the case at hand, the Board notes that the veteran was provided with a VCAA letter prior to the initial adjudication of the claim. In addition, when indicated, the veteran was provided additional information by the RO. In the Board's opinion, any procedural errors on the RO's part were insignificant and non-prejudicial to the veteran. Accordingly, appellate review may proceed without prejudice to the veteran. Legal Criteria 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. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability, medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war and manifests a psychosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that service connection for depression is warranted because it is the result of an in-service verbal and physical assault by a third class officer. Specifically, the veteran states that the officer threw a giant wrench at him and then verbally insulted him using racial slurs. Consequently, the veteran states that his superiors basically told him to keep quiet about the incident. Thereafter, the veteran states that he was discharged against his will. As a result, he states that he has suffered, feeling both disgraced and depressed. On review of the medical evidence, the Board notes that the service treatment records are negative for a diagnosis of or treatment for depression. The separation examination report indicates normal psychiatric exam. The first post service medical evidence showing treatment for depression is from December 2002. A January 2003 VA behavioral health progress note states that the veteran complained that he had become depressed recently due to his inability to work. He also indicated that he had a long history of depression dating back to shortly after leaving the military. Unfortunately, however, there is no medical evidence of any complaints of or treatment for depression until approximately 35 years after service, nor is there any medical evidence of a nexus between the veteran's currently diagnosed depression and his military service. In fact, the medical evidence showing current treatment for depression does not mention any assault, abuse, or any other incident from the veteran's active service. Instead, the treatment records focus on the veteran's inability to work, his back pain, and his substance abuse. In essence, the evidence of a nexus between the veteran's depression and his military service is limited to the veteran's own statements. This is not competent evidence since laypersons, such as the veteran, are not qualified to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, service connection is not in order for depression. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. ORDER Entitlement to service connection for depression is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs