Citation Nr: 0812560 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-35 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for major depression. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Veteran and his brother ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from February 1986 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2002 and March 2004 rating decisions of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for major depression. The record indicates that although the veteran also originally sought service connection for post-traumatic stress disorder (PTSD), he withdrew the claim from appellate consideration in February 2006. The Board remanded the instant claim in July 2006 and September 2007 for further development. This case is now ready for appellate review. FINDING OF FACT The preponderance of the competent medical evidence of record does not link the veteran's major depression to any incident of active service. CONCLUSION OF LAW Major depression was not incurred in or aggravated by service.38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v Nicholson, 487 F.3d 881 (2007). In letters dated in January 2002, May 2005, and October 2007, the veteran was advised in accordance with the law regarding what he needed to establish his service connection claim. The January 2002 letter was received in accordance with the law, prior to the initial unfavorable decision on the claim. In Dingess/Hartman v Nicholson, 19 Vet. App. 473 (2006), the Court held that VA must also provide notification that a disability rating and an effective date for the award of benefits be assigned if service connection is awarded. The veteran received the notice consistent with Dingess July 2006. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of this claim. The record includes service medical records, service records, VA compensation and pension examinations, and private psychiatric treatment records. Statements from the veteran, his family members, and the pastor of his church were also associated with the claims folder. There are no known additional records to obtain. The veteran was offered a hearing and testified at a RO hearing in February 2004 and a Central Office Board hearing in February 2006. The Veterans Law Judge that conducted the February 2006 no longer works for the Board. In June 2007, the veteran was offered the opportunity to provide hearing testimony before another Veterans Law Judge. He declined. As such, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and the case is ready for appellate review. Service Connection The veteran maintains that he has major depression as a result of his active service. He asserts that while in service, he was ridiculed because of a deformity of the hand he had prior to service. He said that his shipmates, as well as his superiors inquired of the deformity and wondered how he would be able to serve in the Navy as a result. He states that he was told that he would be limited in the Navy and that he would have trouble completing basic training. See August 2001 statement. Because the preponderance of the informed medical evidence does not link the current diagnosis of depression to any incident of service, the claim will be denied. VA compensation is paid for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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). As noted, the veteran's primary contention is that when he entered active service in February 1986, he was harassed and disparaged by superiors and peers, because he had a deformed hand. He argues that he became increasingly depressed over this treatment, and that he was referred for psychiatric consultation by the service department. Eventually, approximately three months after he entered active duty, he was discharged. There is no support in the veteran's service personnel or medical records for his primary contention. On the contrary, his service medical records show no findings, treatment, or diagnosis of a psychiatric disorder. The veteran's April 1986 service records show that the veteran had a suspected personality problem. It was determined that he had difficulty adjusting to military life as evidenced by his inability to get along with others, refusing to follow instructions, and trying to intimidate his shipmates. The latter is particularly significant, as it directly contradicts the veteran's present account of being harassed by others - instead indicating that the veteran was causing difficulties in the training unit. An April 1986 Recruit Evaluation Report authored by the veteran's Company Commander indicated that while the veteran voiced a desire to remain in the service, his actions contradicted this stated intention, and that he showed no desire to remain in the Navy. His lax attitude and behavior patterns, according to his commander, failed to improve and the commander recommended discharge from service. The commander indicated that the veteran was unable to enter the office properly and had "nothing but excuses for his poor performance to date." The division officer recommended that he be discharged from service. He also had academic test failure and failed the swimming test. In May 1986, he was discharged from service as an entry level separation for performance and conduct. The recruit training record as reviewed above is highly probative in directly contradicting the veteran's present account. It is wholly silent as to the veteran's rendition of being harassed or being afforded psychiatric counseling. Because this record was generated with the specific purpose of recording the veteran's academic and disciplinary development, it is akin to an official record of increased probative value. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); cf. LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Generated approximately 15 years after service, in August 2001, statements were received by VA from the veteran's grandmother, father, and mother. Those statements all indicated, in pertinent part, that the veteran was depressed since his return home from service. The statements are of little probative value, because while the makers can report observations capable of report by laypersons, they bear no information as to the cause of the veteran's behavior and are in any event generated many years after service. Thus, there is no support in the record for the veteran's factual account of having been harassed during the course of his military service. The question of corroboration for the veteran's factual account of what occurred in service is critical, because necessarily, any medical opinion linking a mental disorder to military service must be based upon an accurate factual premise of in-service events. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (Observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). The veteran has submitted several statements (dated in July 2001, February 2004, August 2004 and February 2007) from F.G.S., Ph.D, his treating clinical psychologist. See Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) (In general, although the Court has specifically rejected the "treating physician rule," the Board is obligated to consider and articulate reasons or bases for its evaluation of a treating physician's opinion). In July 2001, Dr. F.G.S. stated in substance that the veteran had PTSD from an incident inservice where he witnessed an incident involving abuse of a fellow enlistee. However, in February 2004, Dr. F.G.S. expanded his opinion to include a diagnosis of major depressive disorder, although he reiterated an earlier diagnosis of PTSD. In an August 2004 letter, Dr. F.G.S. reported that he had read the veteran's recruit evaluation report, and noted the commander's observations relative to the veteran being disinterest in the Navy, inattention to instructions, uncleanliness and "lax attitude." Without explanation, Dr. F.G.S. also commented that "prior to enlistment, he was reportedly a model recruit." Dr. F.G.S. stated that the veteran's record was supportive of a finding that he had incurred major depression in military service. Firstly, Dr. F.G.S. makes no mention of the veteran's account of having been harassed, as the veteran proffered in his August 2001 statement. That the veteran's account is uncorroborated (and indeed contradicted as noted above) is critical in the Board's view, as knowledge of the facts and circumstances of military service necessarily would effect the validity of any post-service mental health care assessment. Moreover, while Dr. F.G.S. correctly reports the naval unit command's reports, he makes no comment regarding the complete absence on those records of any corroboration for the veteran's account of having been afforded mental health counseling in service. In February 2002, a Florida Department of Health Examination was performed. The examination report indicated that the veteran had PTSD and dysthymia. He experienced anxiety and agitation. He also was noted to have difficulty with trust due to past experiences. Nothing related to service was discussed in the examination report. Conversely, in a November 2006 VA psychiatric examination and an October 2007 addendum, both accompanied by a review of the claims folder, the examiner opined that there was no evidence that the veteran's military service caused or aggravated the depression. The examiner also correctly noted that service records reflected that the veteran was discharged form service due to an inability to get along with others, refusing to follow instructions, and trying to intimidate his shipmates. The examiner stated that these problematic behaviors were not symptoms of depression. In particular, in the October 2007 addendum, the examiner stated that considering all of the available evidence, the veteran's depressive disorder was not related to any incident during active service. The opinion was based upon record review. There was no evidence in the record that the veteran sought any mental health treatment during active duty for being ridiculed of any event. Additionally, the examiner stated that another factor that played a role in this opinion was that during the VA compensation and pension examination in November 2006, the veteran indicated that he first sought outpatient mental health treatment in October 2001, which was over 15 years after he was discharged from service. The more informed and therefore more probative medical evidence of record does not support the veteran's claim for service connection for major depression. The veteran maintains that his depression began in service and has continued since that time, but there is no competent evidence that shows this. During the veteran's limited period of service, there were no findings, treatment or diagnosis for depression. Although the veteran stated that he was seen by a psychiatrist during service for his behavior, there is no medical evidence of such. Moreover, the veteran's problems during service were shown to be academic, and stemmed from lax attitude and behavior pattern. After service, depression was diagnosed, but not for 15 years after service discharge. The private psychologist who treated the veteran at that time, continued to submit statements linking the veteran's depression to an event occurring in service. However, that event was never verified or described by the psychologist. The veteran's family members and pastor also indicated that the veteran was different after his return from service. "A layperson can certainly provide an eyewitness account of a veteran's visible symptoms." See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Laypersons, however, are not competent to render a probative opinion on a medical matter, such as in this case as to the etiology of the veteran's claimed major depression. Finally, VA requested an opinion as to the etiology of the veteran's depression. The VA examiner opined that after a thorough record review, there was no evidence in the record that the veteran sought any medical treatment for being ridiculed in service and the private treatment records did not show outpatient mental health treatment until 15 years after service. 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); 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. The VA examination with October 2007 addendum is more probative than the veteran's private psychologist's statements. The VA examination addendum was rendered with review of the entirety of the record, and addresses the veteran's account of in-servi7ce occurrences. VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the informed evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for major depression is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs