Citation Nr: 0904461 Decision Date: 02/06/09 Archive Date: 02/13/09 DOCKET NO. 07-07 693 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from May 1958 to July 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2008. A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). In July 2008, the Board reopened and remanded this matter to the RO via the AMC, for due process considerations, to obtain private treatment records, and to schedule the veteran for a new VA psychiatric examination. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent evidence, overall, demonstrates that the veteran's current acquired psychiatric disorder was not incurred in nor the result of active duty. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include depression, is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008). 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, including psychoses, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). 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 disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The veteran claims that his current psychiatric problems began during his time in service from May 1958 to July 1961, more than 40 years ago. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran's entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints); see also Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (holding that "negative evidence" could be considered in weighing the evidence). The first requirement for any service connection claim is the existence of a current disability. Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. Evidence submitted includes VA treatment records and private treatment records from psychologist Dr. "P.", as well as testimony from the veteran and his spouse and a statement from their daughter. These records chronicle a history of mental illness, including diagnoses of schizoid personality, passive aggressive reaction, an anxiety disorder, and depression. Based on this evidence, the first requirement of a current disability is fulfilled. The second requirement for service connection is evidence of in-service incurrence of an injury or disease. The service treatment records (STRs) indicate a diagnosis of schizoid personality. The veteran went AWOL twice in service. The veteran was admitted to Newport Naval Hospital in 1961 and diagnosed with passive aggressive reaction. The Board finds that the service records provide limited favorable evidence for this claim, as they indicate psychiatric treatment and diagnoses in service. The third requirement for establishing service connection is medical evidence of a nexus between the claimed in-service disease or injury and the current disability. The RO obtained VA outpatient medical records through July 2008, as well as private records of the veteran's treatment with psychologist Dr. P. While these records clearly indicate ongoing psychiatric treatment, they are unclear on the etiology of the veteran's acquired psychiatric disorder. Pursuant to the Board's remand, the veteran was afforded a VA psychiatric examination in July 2008 to determine the nature and etiology of his current psychiatric problems. The examiner noted the procedural history of the veteran's service connection claim, including an October 1968 rating decision that denied service connection for a nervous condition, based upon a July 1968 VA neuropsychiatric examination that indicated the veteran's diagnosis of anxiety was not considered to be the result of service and had manifested itself only within the prior year. The veteran's subjective complaints to the examiner were based entirely on his poor physical condition, noting his many medical disabilities. Upon mental status examination, the veteran was not withdrawn or agitated, and he was cooperative and fully oriented. The veteran noted some tendencies toward compulsive behavior, performing certain activities a certain number of times. The veteran described his mood as "depressed", which was congruent with his affect. The veteran was irritable and tearful. The examiner noted his concentration to be mildly impaired during the examination. The examiner diagnosed major depressive disorder, recurrent. Stressors were noted to be significant and severe physical illnesses, concern over his wife's health, her recuperation from cancer that year, and financial concerns. The examiner found the severity of the psychosocial stressors to be severe. The examiner opined that, based upon the service records and the examination, the veteran's depression was not acquired in service and is more likely than not related to his response to his multiple medical conditions as well as his wife's health. The examiner noted that the veteran's psychiatric symptoms have a major negative impact on his ability to obtain and maintain physical or sedentary employment and cause a major interference with his social functioning. The Board finds that this opinion is entitled to great weight, as the examiner reviewed the claim file in its entirety and took into account all prior records regarding the veteran's psychiatric complaints, as well as a complete mental status examination. Simply stated, the Board finds that the post-service treatment records, the examinations cited above, and the service records provide evidence, overall, against this claim, indicating that the veteran's current psychiatric disorder is not related to service or the treatment in service. With respect to the veteran's own 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). More importantly, the competent evidence of record provides evidence against a finding of a nexus between any current psychiatric disorder and the veteran's period of active service from May 1958 to July 1961. Boyer, 210 F.3d at 1353; Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000). Specifically, the veteran was first diagnosed with anxiety some eight years after service, with no reference to service, and was first diagnosed with depression many more years after service, providing evidence against this claim. In the present case, to the extent that the veteran is able to observe continuity of psychiatric symptoms since service, his opinions are outweighed by the lack of pertinent findings of chronic disability in service, the lack of pertinent findings after service, and the lack of any competent medical opinion linking or indicating a link to service. The Board finds that the service and post-service treatment records provide evidence against the claim of service connection for an acquired psychiatric disorder, to include depression, related to service, outweighing the lay statements of the veteran, indicating a problem that began after service. In sum, the medical evidence demonstrates that the veteran is not entitled to service connection for an acquired psychiatric disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duty to notify and to 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 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; and (3) that the claimant is expected to provide 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 U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in March 2006 that fully addressed all three notice elements and was sent prior to the initial AOJ 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 her or his possession to the AOJ. 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 therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records through July 2008, and the veteran submitted private records from Dr. Posner. The veteran was afforded a VA psychiatric examination in July 2008, and had the opportunity to present testimony in the May 2008 Travel Board hearing before the undersigned Veterans Law Judge. 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 Service connection for an acquired psychiatric disorder, to include depression, is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs