Citation Nr: 0814229 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-10 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (claimed as depression). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from June 1977 to June 1981, and from October 1983 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDING OF FACT The competent evidence, overall, demonstrates that the veteran did not manifest an acquired psychiatric disorder in service, and that his current psychiatric symptoms are not shown to be causally related to his periods of active military service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as psychosis, shall be service connected if manifested to a compensable degree within one year from separation from service, provided the rebuttable presumptions of 38 C.F.R. § 3.307 are also satisfied. See 38 C.F.R. §§ 3.307, 3.309(a). However, these provisions do not apply as there is no evidence or argument that the veteran has been diagnosed with a psychotic disorder. In this case, there is a conflict of medical evidence concerning whether the veteran manifests a currently diagnosed acquired psychiatric disorder. The veteran's VA clinical records reflect diagnoses of depression not otherwise specified (NOS), anxiety disorder NOS, a substance abuse disorder, substance induced mood disorder, and cocaine abuse with secondary depression. However, a VA compensation and pension examination in December 2005 found no evidence of a current mental illness, providing evidence against this claim. In any event, for purposes of this decision, the Board will presume the veteran has a currently diagnosed psychiatric disorder. The veteran's first period of active service was from June 1977 to June 1981. His December 1976 enlistment examination found a normal psychiatric status. In April 1978, the veteran sought a psychiatric consultation. He reported sexual identity problems with heterosexual adjustment difficulties. He complained of nervous habits and trembling hands. He was described as a very sensitive and easily hurt individual with effeminate characteristics. His mental status examination was significant only for abnormal perceptions regarding his sexual dysfunction. He was given an impression of psychophysiologic genito-urinary disorder, and recommended for supportive and insight therapy in order to decrease his anxiety and general worrying, and enhance his self-concept. On his June 1981 separation examination, the veteran endorsed a history of "[n]ervous trouble of any sort," but denied symptoms such as "[f]requent trouble sleeping," "[d]epression or excessive worry," and "[l]oss of memory or amnesia." In response to a question concerning whether he had received treatment for a mental health condition, he reported being restricted for 45 days while stationed in Pearl Harbor worrying about his sister who was going through a difficult phase in her life. His psychiatric examination was abnormal based on an assessment of "[h]omosexual." The Board notes that the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) does not recognize homosexuality as a diagnosable psychiatric disorder. See 38 C.F.R. § 4.125 (diagnosis of a mental disorder must conform to DSM-IV). The December 2005 VA examiner also noted that homosexuality is no longer considered a "psychiatric" disorder, supporting this finding. The veteran does not claim otherwise. Based on the above, the veteran's service medical records for his first period of active service provide highly probative evidence against this claim, failing to indicate a "psychiatric" disorder. The veteran had a second period of active service from October 1983 to October 1986. On his May 1983 enlistment examination, he denied a history of "[f]requent trouble sleeping," "[d]epression or excessive worry," "[n]ervous trouble of any sort," and "[l]oss of memory or amnesia." At that time, the veteran's psychiatric status was evaluated as normal. In March 1986, the veteran sought a consultation due to a 2 to 3 month history of anxiety and feelings of helplessness. He had been feeling distraught over personality conflicts with family members and co-workers. He had several incidents in the past involving disrespectful conduct towards officers. He denied current suicidal thoughts but felt that taking his life would seem like a solution to his problems. Mental status examination was unremarkable. He was given an assessment of rule out (R/O) situational anxiety. He was referred for psychiatric consultation and instructed to talk to his chaplain about family problems. The record does not reflect that the veteran appeared for a psychiatric consultation scheduled in April 1986. An October 1986 separation examination did not diagnose an acquired psychiatric disorder. The veteran's service medical records for his second period of active service provide highly probative evidence against this claim, failing to indicate a psychiatric disorder began during service. On a December 1986 recruiting physical examination, the veteran denied a history of "[f]requent trouble sleeping," "[d]epression or excessive worry," "[n]ervous trouble of any sort," and "[l]oss of memory or amnesia." At that time, the veteran was given a normal clinical evaluation of his psychiatric status. This examination report provides highly probative against this claim, showing continued denials by the veteran of recurrent or persistent psychiatric symptoms and no clinical evidence of an acquired psychiatric disorder. The post-service medical records first reflect treatment for psychiatric symptoms in 2002, which is more than 15 years following the veteran's discharge from active service. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Additionally, the post-service medical records are negative for any evidence suggesting that the veteran's current psychiatric symptoms are associated with an event during service. To the contrary, his clinical records include assessments of substance-induced mood disorder and cocaine abuse with secondary depression. Furthermore, VA compensation and pension examination in December 2005, upon review of the veteran's medical history, found that the veteran did not currently manifest a psychiatric disorder. Overall, this evidence weighs heavily against the claim, indicating psychiatric symptoms first manifest many years after service and unrelated to active service. In deciding this case, the Board has carefully reviewed the veteran's contentions. A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. 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). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the veteran's current recollections of persistent and recurrent psychiatric symptoms since service directly contradict his denial of such symptomatology on his June 1981 separation examination, May 1983 enlistment examination, and December 1986 recruiting physical examination. His statements are otherwise unreliable when the evidentiary record is viewed as a whole. For instance, he denied having any problems in the military to a VA clinician in March 2003, but elsewhere describes a history of depression and substance abuse since his teenage years. The Board places greater probative weight to the veteran's statements made contemporaneous in time to his discharge from both periods of service rather than his current recollections of events more than 20 years ago. As noted above, the veteran's personal opinion as to the diagnoses and etiologies of his claimed disorder is not sufficient to establish service connection. Routen, 10 Vet. App. at 186. Based on the above, service connection may not be established based on chronicity in service or post-service continuity symptoms first seen in service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). The Board finds that both service and post-service medical records provide evidence against his claim, outweighing the veteran's statements. Accordingly, the Board finds that the preponderance of the evidence is against his claim of service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5107(b). The appeal, therefore, is denied. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 or her 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 her or 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 (AOJ). 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 Court 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 also notify a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was substantially satisfied by way of letters sent to the veteran in June and August 2005. These letters informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was asked to advise the AOJ of any relevant evidence that VA could obtain on his behalf and to submit all evidence and/or information in his possession pertinent to his claim. The veteran was not advised of the criteria for establishing a disability rating or effective date of award. This notice defect, however, results in no prejudice to the veteran as the issues have no bearing on the claims until such time that an award of service connection is granted. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) (a notice error is not prejudicial when concerning a benefit that cannot be awarded matter of law). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the veteran's service medical records and VA clinical records. The veteran has not reported the existence of any relevant private treatment records. As decided above, the preponderance of the evidence is against a finding of persistent or recurrent symptoms of disability since service and the competent medical evidence, in the form of military examinations during service, shows that an acquired psychiatric disorder was not manifest in service. As the evidence of record does not otherwise include any competent evidence suggesting an association between the current symptoms and active service, the Board has no duty to provide examination or obtain medical opinion in this case. Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003) (VA has no obligation to provide medical opinion pursuant to section 5103A(d) absent competent evidence that claimant's disability or symptoms are associated with service); McLendon v. Nicholson, 20 Vet. App. 79 (2006). ORDER Service connection for an acquired psychiatric disorder (claimed as depression) is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs