Citation Nr: 0812461 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 06-06 990A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression/dysthymic disorder. 2. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from January 1970 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. The issue of entitlement to service connection for post- traumatic stress disorder (PTSD) is not addressed in this decision. That issue was addressed separately by the RO. In January 2007, it was determined that new and material evidence had not been received that was sufficient to reopen the claim. That claim is no longer on appeal. FINDINGS OF FACT 1. An acquired psychiatric disorder (depression/dysthymic disorder) was not demonstrated during the veteran's military service, and a preponderance of the competent evidence of record is against concluding that such disorder was caused or aggravated by service. 2. During an August 2006 hearing at the RO, the veteran withdrew the issue of entitlement to service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. An acquired psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2007). 2. The criteria for withdrawal of a substantive appeal have been met as to the issue of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204(b)(1) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression/dysthymic disorder. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, a November 2004 letter to the veteran from the RO specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the veteran about the information and evidence VA would seek to provide; (3) informing the veteran about the information and evidence he was expected to provide; and (4) requesting the veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). The information and evidence associated with the claims file consists of the veteran's service treatment records, VA medical treatment records, private post-service medical treatment records, VA orthopedic and neurological examinations, and statements from the veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the veteran was provided with notice of this information in a letter dated in March 2006. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Factual Background The service treatment records are negative for report of, treatment for, or diagnosis of a psychiatric disorder, to include depression or dysthymic disorder. Post service private records from 2003 reflect treatment for diabetes mellitus. VA records show that when the veteran was seen for physical ailments in July 2003, a history of depression was noted. Additional VA evaluation in October 2004, November 2004 and January 2005 resulted in diagnosis of mild depression and dysthymic disorder. The October 2004 report reflects that the veteran had a history of a depressed mood for several years. This had worsened during the last year coinciding with the diagnosis of diabetes mellitus. The veteran said that he became depressed around the time of the divorce from his only wife in 1984. At that time, he had to leave his two sons with her. He also had to change jobs quite often leading to periods of unemployment of up to 6 months. In the November 2004 report, it was noted that stressors resulting in the veteran's depression included the inability to maintain relationships with women and health problems such as diabetes and erectile dysfunction. Additional stressors included not completing his sociology degree in the past (he lacked one semester) due to marital discord. In an August 2005 statement, P.A.A. asserted that she had known the veteran since 1973. He always seemed to have an inner sadness about him and seemed to carry a heavy weight on his shoulders. Over the years, his personality changed and he was diagnosed with depression. She noted that he had mood swings and sometimes seemed cold and cruel. The changes in his behavior were abrupt, and one moment he might be gentle and loving but then quickly turn into an individual who was indifferent to the feelings of others. He had difficulty being around others and was unable to maintain fruitful relationships with others. He was overly possessive, controlling, demanding, and mistrustful of others. Private records dated in November 2005 refer to the veteran's PTSD and major depressive disorder. He continued to be seen for psychiatric symptoms (reported as PTSD) in January 2006. In a January 2006 statement, the veteran reported that he initially experienced nervousness and anxiety during his military service. Essentially, he provided information regarding stressors that he thought resulted in PTSD. As already noted, service connection was separately denied for PTSD and entitlement to service connection for that psychiatric disorder is not addressed in the current claim which pertains to entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include depression/dysthymic disorder. At an August 2006 personal hearing, the veteran testified in support of his claim. He opined that his depression resulted from inservice stressors such as exposure to constant incoming fire from small arms mortar. The veteran said that this condition interfered with his daily activities. Specifically, he procrastinated a lot. He did not feel that his depression was due to personal problems. He stated his psychiatric problems began in 1971. He pointed out that he was exposed to combat fire on a recurring basis while in Vietnam. He reported sleep disturbance and said that when he saw accidents or injuries to others, it brought back his inservice experiences. He now received treatment at VA for depression. Additional VA treatment records dated through early 2007 show continued treatment for various conditions, to include depression. Analysis It is the veteran's assertion that service connection is warranted for depression/dysthymic disorder in that this condition is of service origin. However, after review of the entire claims file, it is the Board's conclusion that service connection is not warranted for an acquired psychiatric disorder, other than PTSD, to include depression/dysthymic disorder. Specifically, it is noted that no such condition was noted during service or for many years after. The veteran reported in 2004 that he initially became depressed in 1984 after he and his wife divorced. The first report showing actual treatment for psychiatric symptoms was in 2004. Records from 2004 and 2005 essentially reflect that the veteran's depression/dysthymic disorder was precipitated by personal and health problems. No relationship to any incident of military service is indicated. Simply put, the record demonstrates onset of mental problems many years after service. See Maxson v. Gober, 230 F. 3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered as a factor in determining a service connection claim). The Board also observes that no medical professional has associated the veteran's current mental pathology to his military service. In consideration of the foregoing, the Board concludes that the preponderance of the evidence is against the claim that the veteran's mental disorder had its onset or is otherwise related to service. The contentions expressed by the veteran and P.A.A. as to etiology of this condition have been considered. It is noted that they are competent as a lay persons to report on that which they have personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, there is no evidence of record that the veteran or P.A.A. has specialized medical knowledge to be competent to offer medical opinion as to cause or etiology of the claimed disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting the veteran's claim. See Ortiz v. Principi, 274 F.3d 1361 (2001) which reflects that the benefit of the doubt rule applies only when the positive and negative evidence renders a decision "too close to call." Entitlement to service connection for bilateral hearing loss. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn either in writing or on the record at a hearing at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). During his August 2006 hearing before a Decision Review Office at the RO, the veteran withdrew the appeal as to the issue of entitlement to service connection for bilateral hearing loss. In light of the veteran's withdrawal of his appeal, there remains no allegation of error of fact or law for appellate consideration. In essence, a "case or controversy" involving a pending adverse determination that the veteran has taken exception to does not currently exist. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) [quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)]. Accordingly, the Board is without jurisdiction to review the appeal. This appeal is dismissed without prejudice to refiling. ORDER Service connection for an acquired psychiatric disorder, diagnosed as depression/dysthymic disorder, is denied. The appeal of the claim of entitlement to service connection for bilateral hearing loss is dismissed. ____________________________________________ JOHN Z. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs