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