Citation Nr: 0813014	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  04-28 429A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida


THE ISSUES

1.  Whether the substantive appeal for service connection for 
a psychological order was timely filed.

2.  Entitlement to service connection for a psychological 
disorder (the "acquired psychiatric disability").


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.G. Alderman, Associate Counsel



INTRODUCTION

The veteran had active military service from November 1965 to 
December 1967.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an August 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida, that denied service connection for a 
mental disorder, major depression.  The ruling was affirmed 
by a Decision Review Officer (DRO) in June 2004.

The matter was before the Board in October 2007 and was 
remanded so that the appellant could appear before the Board 
for a hearing regarding the timeliness of his substantive 
appeal.  The hearing was scheduled, however, the appellant 
cancelled.  

The matter is now before the Board for consideration. 


FINDINGS OF FACT

1.  The veteran timely filed an extension for filing his 
substantive appeal.

2.  The veteran's psychological disorder is not related to 
service.


CONCLUSIONS OF LAW

1.  The veteran timely appealed the issue of entitlement to 
service connection for a psychological disorder.  38 U.S.C.A. 
§ 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.302, 
20.303, 20.304, 20.305, 20.306 (2007).

2.  The criteria for service connection for a psychological 
disorder have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 
2002); 38 C.F.R. § 3.303 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

One of the matters the Board must address is which issue is 
properly before it at this time.  Under 38 U.S.C.A. § 7105(a) 
(West 2002), an appeal to the Board must be initiated by a 
notice of disagreement (NOD) and completed by a substantive 
appeal after a statement of the case (SOC) is furnished to 
the veteran.  A substantive appeal consists of a properly 
completed VA Form 9 or correspondence containing the 
necessary information.  See 38 C.F.R. § 20.202.  As a general 
rule, to perfect an appeal of any issue adjudicated by the 
RO, a substantive appeal must be filed within 60 days from 
the date the RO mails the statement of the case to the 
appellant or within the remainder of the one-year period from 
the date of mailing of the notification of the determination 
being appealed, whichever period ends later.  See 38 U.S.C.A. 
§ 7105(a), (b)(1); 38 C.F.R. § 20.302.  If an appeal is not 
perfected within the time specified by the regulation, the 
RO's determination becomes final.  See 38 U.S.C.A. § 7105(c).  
Once an RO's decision becomes final, absent submission of new 
and material evidence, the claim may not be reopened or 
readjudicated by VA.  See 38 U.S.C.A. § 5108.

An extension of the 60 day period for filing a substantive 
appeal may be granted for good cause.  A request for such an 
extension must be made in writing and must be made prior to 
expiration of the time limit for filing the substantive 
appeal.  See 38 C.F.R. § 20.303. Except in cases where the 
submission of additional evidence requires the issuance of a 
supplemental statement of the case pursuant to 38 C.F.R. § 
19.31, the filing of additional evidence after receipt of 
notice of an adverse determination does not extend the time 
limit for initiating or completing an appeal from that 
determination.  See 38 C.F.R. §§ 20.303(b), 20.304.

The United States Court of Appeals for Veterans Claims 
(Court) has held that the formality of perfecting an appeal 
to the Board is part of a clear and unambiguous statutory and 
regulatory scheme which requires the filing of both a notice 
of disagreement and a formal appeal.  When an appellant fails 
to file a timely appeal, and does not request an extension of 
time in writing before the expiration of time for the filing 
of the substantive appeal, he is statutorily barred from 
appealing the decision of the agency of original 
jurisdiction.  Roy v. Brown, 5 Vet. App. 554, 556 (1993).  
Under 38 U.S.C.A. § 7105(d)(3), questions as to timeliness or 
adequacy of response shall be determined by the Board.

The appellant is appealing the August 2003 denial of service 
connection for his psychological disorder, major depression.  
The appellant timely filed a NOD and was mailed a SOC on June 
23, 2004, making his substantive appeal due on or before 
August 23, 2004, as his 1 year appeal period expired on 
August 7, 2004.  However, the appellant contends that he did 
not receive the SOC and that he had to request one upon 
receiving verbal notification that it had been issued.  

The claims file shows that the appellant submitted a written 
request for a copy of his SOC on July 29, 2004.  The request 
indicated that he was aware of the limited time to perfect an 
appeal subsequent to the issuance of an SOC and asked that 
his request be processed expeditiously.  

In response, a copy of the SOC was provided with an undated 
cover letter.  The envelope was postmarked August 11, 2004.  
The appellant filed his substantive appeal on August 31, 
2004.  

The RO dismissed his appeal in October 2004 for being 
untimely.  The appellant argues that he was denied adequate 
notice of the basis of the RO decision and that his 60 day 
time period should have begun on August 11, 2004, the date 
his copy of the SOC was postmarked; thus allowing him until 
October 11, 2004 to file his substantive appeal.  

Based upon the evidence in the file, the Board finds that the 
appellant's July 29, 2004 request for his SOC was also a 
request for an effective extension of time to file his 
substantive appeal.  The request was made prior to the 1 year 
or 60 day expiration and the request was for good cause since 
he had not received his SOC in a timely manner.  Therefore, 
the Board finds that the substantive appeal was timely filed, 
and the issue of service connection for a psychological 
disorder is properly before the Board at this time.

Service connection will be granted if it is shown that the 
veteran suffers from a disability resulting from personal 
injury suffered or disease contracted in the line of duty, or 
for aggravation of a preexisting injury suffered or disease 
contracted in the line of duty, during active military 
service.  38U.S.C.A. §§1110, 1131; 38C.F.R. §3.303.  
Disorders diagnosed after discharge will still be service 
connected if all the evidence, including that pertinent to 
service, establishes that the disease was incurred in 
service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 
F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be 
no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992).  Service connection requires a finding of the 
existence of a current disability and a determination of a 
relationship between that disability and an injury or disease 
incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 
(1993); see also Boyer v. West, 210F.3d1351, 1353 (Fed. Cir. 
2000).  To establish service connection, there must be:  (1) 
a medical diagnosis of a current disability; (2) medical or, 
in certain cases, lay evidence of in-service occurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between an in-service injury or disease and the 
current disability.  Hickson v. West, 12Vet. App.247, 252 
(1999), citing Caluza v. Brown, 7Vet. App.498, 506 (1995), 
aff'd 78F.3d604 (Fed. Cir. 1996).  

A layperson is generally not capable of opining on matters 
requiring medical knowledge.  Routen v. Brown, 10Vet. 
App.183, 186 (1997).  See also Bostain v. West, 11Vet. 
App.124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. 
App.492 (1992) (a layperson without the appropriate medical 
training and expertise is not competent to provide a 
probative opinion on a medical matter, to include a diagnosis 
of a specific disability and a determination of the origins 
of a specific disorder).  

Competent medical evidence means evidence provided by a 
person who is qualified through education, training, or 
experience to offer medical diagnoses, statements, or 
opinions.  Competent medical evidence may also mean 
statements conveying sound medical principles found in 
medical treatises.  It also includes statements contained in 
authoritative writings, such as medical and scientific 
articles and research reports or analyses.  38 C.F.R. 
§3.159(a)(1).  Competent lay evidence means any evidence not 
requiring that the proponent have specialized education, 
training, or experience.  Lay evidence is competent if it is 
provided by a person who has knowledge of facts or 
circumstances and conveys matters that can be observed and 
described by a lay person.  38 C.F.R. §3.159(a)(2).  

A disorder will be service connected if the evidence of 
record, regardless of its date, shows that the veteran had a 
chronic disorder in service or during an applicable 
presumption period, and that the veteran still has the same 
disorder.  With 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.  For the showing of 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."  38C.F.R. §3.303(b).  

A determination as to whether medical evidence is needed to 
demonstrate that a veteran presently has the same condition 
he or she had in service or during a presumption period, or 
whether lay evidence will suffice, depends on the nature of 
the veteran's present condition (e.g., whether the veteran's 
present condition is of a type that requires medical 
expertise to identify it as the same condition as that in 
service or during a presumption period, or whether it can be 
so identified by lay observation).  Savage v. Gober, 10 Vet. 
App.488, 494-97 (1997).  

If the disorder is not chronic, it will still be service 
connected if the disorder is observed in service or an 
applicable presumptive period, continuity of symptomatology 
is demonstrated thereafter, and competent evidence relates 
the present disorder to that symptomatology.  Continuity of 
symptomatology is required only where the condition noted 
during service (or in the presumptive period) is not, in 
fact, shown to be chronic or where the diagnosis of 
chronicity may be legitimately questioned.  Again, whether 
medical evidence or lay evidence is sufficient to relate the 
current disorder to the in-service symptomatology depends on 
the nature of the disorder in question.  Savage, 10Vet. App. 
at 497.  

In determining whether service connection is warranted for a 
disability, VA is responsible for determining whether the 
evidence supports the claim or is in relative equipoise, with 
the veteran prevailing in either event, or whether a 
preponderance of the evidence is against the claim, in which 
case the claim is denied.  38 U.S.C.A. §5107; Gilbert v. 
Derwinski, 1 Vet. App.49 (1990). When there is an approximate 
balance of positive and negative evidence regarding any issue 
material to the determination, the benefit of the doubt is 
afforded the claimant.  

The appellant's service medical records do not indicate any 
treatment for a psychological disorder, providing evidence 
against the claim that such a disorder began during service.  

Post-service treatment records show a diagnosis of Major 
Depression and treatment for this condition; however, the 
records fail to provide a nexus between service and the 
current disability.

As noted above, the veteran had active military service from 
November 1965 to December 1967.  In September 1994, many 
years after service, the appellant had a VA psychological 
exam in connection with his claim for non-service connected 
pension.  During this exam, the appellant indicated that he 
had been suffering depression for 3-5 months (many years 
after service).  The appellant indicated that he was stressed 
from being laid off from his construction job (post-service).  
Upon being asked whether he had nervous symptoms during 
military service, the appellant failed to give a definitive 
answer.  He allowed for the possibility that there were some 
problems, but he "didn't pay attention."  The examiner 
noted that the appellant had no treatments or 
hospitalizations for nervous symptoms until 1990 when he was 
hospitalized at the Georgia Mental Health Institute, and 
further noted that the appellant failed to follow through 
with the referral for psychiatric treatment.  The appellant's 
spouse informed the examiner that the appellant's symptoms 
started five years prior (many years after service), shortly 
after the appellant suffered a stroke.  He was diagnosed with 
major depression, recurrent, without psychosis.

In a record from the Georgia Health Institute, dated November 
1990, the examiner indicated that the appellant was 
experiencing a 3-4 month period of depressive feelings.  The 
appellant informed the examiner that he was stressed from 
being laid off from construction work and from looking at his 
life and realizing how little he had achieved.  He was also 
upset with his brother-in-law for making advances towards his 
daughter.  No mention of depression resulting from, or 
connected, to service was indicated by either the appellant 
or the examiner.  The diagnosis was major depression, single 
episode without psychotic features.

The Board finds that the 1990 report and the September 1994 
examination provide highly probative evidence against this 
claim, clearly indicating a problem that began many years 
after service with no connection to service.

In recent statements provided to the RO, the veteran 
indicated that he had a psychological disorder attributable 
to service.  In his May 2003 statement, the veteran indicated 
that he constantly thought about those he served with that 
did not survive.  In August 2003, he stated that he refused 
to seek treatment in service for the claimed condition, but 
that he sought nerve medication in 1969 or 1970.  
Unfortunately, the appellant failed to provide documentation 
of treatment or list medical providers so that VA could 
obtain records of treatment to substantiate his claim.  
Importantly, the veteran made no reference to this treatment 
in 1990 or 1994.

For service connection for depression, the first requirement 
for any service connection claim is competent evidence of 
existence of a current disability.  Boyer, 210 F.3d at 1353; 
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The 
appellant's post-service medical records show that he has a 
diagnosis of depression; therefore, he has a disability for 
VA purposes.

There is no evidence to show that the appellant had 
depression while in service. While he was hospitalized for 
depression in November 1990, he attributed his depression to 
his lay-off from work, his lack of lifetime achievement, and 
a situation involving his daughter.  Upon being asked in his 
VA exam in 1994 about depression in service and connections 
thereto, the veteran did not attribute his depression to 
military service, he indicated that he was stressed by being 
laid off from his construction job.  

Though the appellant claims current conditions and past 
treatment for a psychological disorder stemming from service, 
the appellant failed to provide any medical evidence, 
including records or medical providers, to substantiate his 
claim.  

Further, the evidence of records provides what can only be 
described as highly probative evidence against this claim, 
not only indicating a disorder that began years after 
service, but also indicating why it began (for reasons that 
have nothing to do with service).  Simply stated, the Board 
finds that the post-service treatment records provide highly 
probative evidence against this claim, outweighing the 
veteran's contentions regarding a disorder that began during 
service.  The examination of September 1994 provides 
particularly negative evidence against this claim.  Even if 
the veteran did, as he stated, "bite the bullet" and did 
not seek treatment during service, there would be no reason 
not to cite to a problem in service during an examination in 
1994. 

In conclusion, the Board finds that the preponderance of the 
evidence is against the appellant's claim of entitlement to 
service connection for a psychiatric disorder.  38 U.S.C.A. § 
5107(b).  Unfortunately, the appellant's own lay statements 
are insufficient to prove his claim and are outweighed by the 
medical records, which provide evidence (overall) against 
this claim.  See Grottveit v. Brown, 5 Vet. App. 91, 93 
(1993); Espiritu v. Derwinski, 2 Vet. App. 492 494-95 (1991) 
(laypersons are not competent to render medical opinions). 
Hence, the appeal is denied.

The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his representative, if any, of any information, 
and any medical or lay evidence, that is necessary to 
substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
Proper notice from VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that VA will seek to provide; 
(3) that the claimant is expected to provide; and (4) must 
ask the claimant to provide any evidence in his possession 
that pertains to the claim in accordance with 38 C.F.R. 
§ 3.159(b)(1).  This notice must be provided prior to an 
initial unfavorable decision on a claim by the agency of 
original jurisdiction, or regional office (RO).  Mayfield v. 
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. 
Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C.A. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
In this case, although the notice provided did not address 
either the rating criteria or effective date provisions that 
are pertinent to the appellant's claim, such error was 
harmless given that service connection is being denied, and 
hence no rating or effective date will be assigned with 
respect to this claimed condition.  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the appellant in July 2003 that fully 
addressed all four notice elements and was sent prior to the 
initial RO decision in this matter.  The letter informed the 
appellant of what evidence was required to substantiate the 
claim and of the appellant's and VA's respective duties for 
obtaining evidence.  The appellant was also asked to submit 
evidence and/or information in his possession to the RO.

VA has a duty to assist the appellant in the development of 
the claim.  This duty includes assisting the appellant in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  These four factors are:  
(1) whether there is competent evidence of a current 
disability or persistent or recurrent symptoms of a 
disability; (2) whether there is evidence establishing that 
an event, injury, or disease occurred in service, or evidence 
establishing certain diseases manifesting during an 
applicable presumption period; (3) whether there is an 
indication that the disability or symptoms may be associated 
with the veteran's service or with another service-connected 
disability; and (4) whether there otherwise is sufficient 
competent medical evidence of record to make a decision on 
the claim.  38 U.S.C.A. § 5103A(d) and 38 C.F.R. 
§ 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the veteran's service.  
The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, a VA exam was not performed for service 
connection; however, the standards of McClendon are not met.  
The evidence reflects neither disability in service, nor a 
presumptive disability.  Further, there is neither medical 
evidence demonstrating that any current disorder on appeal is 
linked to service, nor credible evidence of continuity of 
symptomatology of either disorder since service.  As service 
and post-service medical records provide no basis to grant 
the claims, and provide extensive evidence against this 
claim, the Board finds no basis for a VA examination or 
medical opinion to be obtained.

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the appellant.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  The RO has obtained VA outpatient 
records and private treatment records that it can obtain.  
Significantly, neither the appellant nor his representative 
has identified, and the record does not otherwise indicate, 
any additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  Hence, 
no further notice or assistance to the appellant is required 
to fulfill VA's duty to assist the appellant in the 
development of the claim.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).

ORDER

The veteran timely filed his appeal to the Board.

Service connection for major depression is denied.


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs