Citation Nr: 0814757	
Decision Date: 05/05/08    Archive Date: 05/12/08

DOCKET NO.  05-30 390	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for a mental disorder. 

2. Entitlement to a rating in excess of 10 percent for a 
right knee disability. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. C. Dale, Associate Counsel

INTRODUCTION

The veteran had active duty service from August 1989 to July 
1990. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an August 2004 rating decision by a 
Regional Office (RO) of the Department of Veterans Affairs 
(VA). The veteran was afforded a February 2008 Travel Board 
hearing before the undersigned Veterans Law Judge. A 
transcript of the hearing is associated with the record. 

The Board has reviewed the veteran's claims file and observes 
that the claim of service connection for a mental disorder 
has been adjudicated in an August 2004 RO decision as whether 
new and material evidence has been received to reopen a claim 
of service connection for headaches. Notably, the prior claim 
was denied in a May 1991 RO decision.  See 38 U.S.C.A. §§ 
5108, 7014, 7105; 38 C.F.R. § 3.156.

Nevertheless, while the prior final denial concerned 
headaches, the current claim on appeal concerns a mental 
disorder. As indicated in 38 C.F.R. § 4.124a, Diagnostic 
Codes 8100 rates migraine headaches and 38 C.F.R. § 4.129, 
Diagnostic Code 9440 rates mental disorders, these two 
disabilities are listed separately and are different for 
purposes of VA adjudication. 

In Boggs v. Peake, No. 2007-7137 (Fed. Cir. March 26, 2008), 
the United States Court of Appeals for the Federal Circuit 
(Federal Circuit) held that a claim for one diagnosed disease 
or injury cannot be prejudiced by a prior claim for a 
different diagnosed disease or injury. Rather, the two claims 
must be considered independently. See Ephraim v. Brown, 82 
F.3d 399 (Fed. Cir. 1996).  

In view of Boggs, the claim of service connection for a 
mental disorder was not previously adjudicated in a prior 
final denial, as that denial addressed a different 
disability, and should be addressed on a de novo basis.  The 
claim will thus be adjudicated on its merits, rather than as 
an application to reopen. Such action does not inure to the 
prejudice of the veteran, as in treating the claim as one 
involving an original application for service connection, the 
veteran is relieved of his predicate obligation to provide 
new and material evidence to overcome the finality of the 
prior decision. Bernard v. Brown, 4 Vet. App. 384, 393-94 
(1993) (Holding that when the Board addresses in its decision 
a question that has not been addressed by the RO, it must 
consider whether the appellant has been given adequate notice 
to respond and, if not, whether he has been prejudiced 
thereby.).    

The issue of an increased rating for a right knee disability 
is REMANDED to the RO via the Appeals Management Center 
(AMC), in Washington, DC.  VA will notify the appellant if 
further action is required.


FINDING OF FACT

The veteran's current mental disorder is not etiologically 
related to active service. 


CONCLUSION OF LAW

The criteria for the establishment of service connection for 
a mental disorder are not met. 38 U.S.C.A. §§ 1131, 5107 
(West 2002); 38 C.F.R. §§ 3.303, 3.306 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

Before addressing the merits of the claim, the Board is 
required to address the duty to notify and duty to assist 
imposed by 38 U.S.C.A. §§ 5103, 5103(A) and 38 C.F.R. § 
3.159.


VA has a duty to notify a claimant and his representative, if 
any, of the information and evidence needed to substantiate a 
claim. This notification obligation was accomplished by way 
of letters from the RO to the veteran dated in May 2004 and 
July 2006. These letters effectively satisfied the 
notification requirements of 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) by: (1) informing the veteran about the 
information and evidence not of record that was necessary to 
substantiate the claim; (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 
provide any evidence in his possession that pertains to his 
claim. The veteran did not receive notice of how VA assigns 
disability ratings and effective dates and complies with the 
holding of Dingess v. Nicholson, 19 Vet. App. 473 (2006). 
However, the denial of the claim in the instant decision 
makes the timing error non-prejudicial.  

Second, VA has a duty to assist a veteran in obtaining 
evidence necessary to substantiate a claim. The service 
medical records are associated with the claims files. 
Additionally, the veteran was afforded VA examinations. 
Through July 2006 correspondence, the veteran requested a new 
VA examination with a different doctor. However, the current 
VA examination reports reflect thorough mental status and 
knee examinations. Nothing in the record indicates that the 
examinations are inadequate for rating purposes. The Board 
finds that no prejudice inures to the veteran by not 
affording him an additional VA examination. 

Lastly, VA treatment records from the Monroe Clinic are 
unavailable. The record reflects multiple searches for these 
records, which culminated in an August 2007 formal finding 
that the records were unavailable. As such, the Board 
concludes that the RO did everything possible to locate the 
Monroe Clinic records, and the claims will have to be 
considered without these records.   

The veteran and his representative have not made the RO or 
the Board aware of any outstanding evidence that needs to be 
obtained in order to fairly decide his claims. 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.



Analysis

The veteran seeks service connection for a mental disorder. 
Although the veteran was treated for mental illness during 
service, there is no evidence etiologically linking his 
current mental condition to any incident during active 
service. Because there is no competent medical evidence 
linking the veteran's current mental disorders to his active 
service, the claim will be denied. 

Applicable law provides that service connection will be 
granted if it is shown that the veteran suffers from 
disability resulting from an 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; 38 C.F.R. § 3.303. That an injury 
occurred in service alone is not enough; there must be 
chronic disability resulting from that injury.  If there is 
no showing of a resulting chronic condition during service, 
then a showing of continuity of symptomatology after service 
is required to support a finding of chronicity. 38 C.F.R. 
§ 3.303(b). Service connection may also 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).

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 
Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) 
(citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). 
Where the determinative issue involves medical causation or a 
medical diagnosis, there must be competent medical evidence 
to the effect that the claim is plausible; lay assertions of 
medical status do not constitute competent medical evidence. 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).

The veteran will be considered to have been in sound 
condition when examined, accepted and enrolled for service, 
except as to defects, infirmities, or disorders noted at 
entrance into service, or where clear and unmistakable 
(obvious or manifest) evidence demonstrates that an injury or 
disease existed prior thereto and was not aggravated by such 
service.  38 C.F.R. § 3.304(b).  A preexisting injury or 
disease will be considered to have been aggravated by active 
military service, where there is an increase in disability 
during such service, unless there is a specific finding that 
the increase in disability is due to the natural progress of 
the disease.  38 C.F.R. § 3.306(a).

Alternatively, the nexus between service and the current 
disability can be satisfied by medical or lay evidence of 
continuity of symptomatology and medical evidence of a nexus 
between the present disability and the symptomatology. See 
Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 
Vet. App. 488, 495 (1997).

The veteran's service medical records reflect that the 
veteran was treated for an adjustment disorders in June 1990. 
The adjustment disorder was characterized as including mixed 
emotional features and an unspecified personality disorder. 
Congenital or developmental defects are not diseases or 
injuries for the purposes of service connection. 38 C.F.R. § 
3.303(c), 4.9. 

Private medical records from December 1995 reflect that the 
veteran sought emergency treatment for an intentional 
substance overdose. These records do not include a diagnosis 
of the veteran's mental condition. Later, private medical 
records, from February 2003, indicate that the veteran has 
been diagnosed with depression. These private medical records 
indicate that the depression resulted from a work injury that 
caused the veteran to experience chronic pain in his right 
rib cage and right backside. 

The veteran was afforded a February 2005 VA mental 
examination. After a thorough examination, the examiner 
diagnosed the veteran with major depressive disorder and a 
personality disorder. In a note, dated July 2005, the 
examiner reviewed her February 2005 examination report and 
the veteran's claims file. After her review, she concluded 
that there is no evidence that the veteran's military service 
caused or contributed to the personality disorder that pre-
existed the veteran's enlistment. She explained that she 
believed the adjustment disorder diagnosed during active 
service should have immediately resolved since the veteran's 
active service was the underlying cause of this mental 
condition. However, regarding the diagnosis of a personality 
disorder, the examiner reported that the cause is likely due 
to the veteran's extremely chaotic early life as opposed to 
any incident during active service. She concluded that the 
affective or anxiety disorders currently experienced by the 
veteran are secondary to his pre-existing personality 
disorder. 

Although the veteran asserts that he has a mental disorder 
caused by military service, his theory regarding this linkage 
is not competent evidence.  It is well-established that  
laypersons, such as the appellant, are not qualified to 
render medical opinions regarding the etiology of disorders 
and disabilities, and his opinion is entitled to no weight.  
Cromley v. Brown, 7 Vet. App. 376, 379 (1995);  Espiritu v. 
Derwinski, 2 Vet. App. 492, 495 (1992).  

The preponderance of the evidence is against the claim, and 
the appeal is denied.   


ORDER

Service connection for a mental disorder is denied. 


REMAND

The Board finds that the record needs to be further developed 
as to determine the physical basis for the veteran's 
complaints of pain and buckling in his right knee. Thus, 
another VA opinion is necessary before it may adjudicate the 
issue of an increased rating for a right knee disability. 

Numerous medical records indicate that there is a loose piece 
of patella within the veteran's right knee. On several 
occasions, the veteran has been recommended for surgery to 
remove it, but he has never had the surgery. At the February 
2008 Travel Board hearing, the veteran reported that his 
right knee buckled once or twice a day and that he could only 
walk for about five minutes before his knee pain prevented 
him from walking further. This account is corroborated by the 
February 2005 VA examination report, noting that the 
veteran's knee locked up on him once or twice a day due to 
the loose patella. However, in the August 2006 VA examination 
report, the examiner did not find that the veteran had varus 
or valgus instability. The Board finds that additional 
development is necessary to determine whether the loose piece 
of patella within the right knee would be related to the 
veteran's complaints of daily buckling of his right knee. 
     
Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should contact the examiner 
conducting the August 2006 VA examination 
and inquire as to whether the loose 
patella found upon X-ray may be consistent 
with the veteran's complaints of 
instability. The claims folder and a copy 
of this remand must be made available to 
the examiner, who must acknowledge such 
report and review in any report generate. 
The examiner should review complaints made 
by the veteran about his knee during the 
February 2008 Travel Board hearing. If the 
VA examiner conducting the August 2006 
examination is not available, the RO/AMC 
should direct a further VA medical 
examination to determine if the veteran 
experiences knee instability due to the 
patella fragment - in either event, the 
examiner should opine as to whether there 
is any physical basis for the veteran's 
complaints that his knee buckles once or 
twice a day.   

2. After completion of the above, and any 
additional development of the evidence, 
the RO should review the record, to 
include all additional evidence, and 
readjudicate the claim. If any benefits 
sought remain denied, the veteran and his 
representative should be issued an 
appropriate supplemental statement of the 
case, and afforded the opportunity to 
respond.  The case should then be returned 
to the Board for further appellate review, 
if otherwise in order.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals 
for Veterans Claims for additional development or other 
appropriate action must be handled in an expeditious manner.  
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).




_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Appeals for Veterans Claims.  This remand is in the 
nature of a preliminary order and does not constitute a 
decision of the Board on the merits of your appeal.  
38 C.F.R. § 20.1100(b) (2006).


 Department of Veterans Affairs