Citation Nr: 1007644 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 04-28 579 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for residuals of a head and neck injury. 2. Entitlement to service connection for a psychiatric disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Associate Counsel INTRODUCTION The Veteran had active military service from August 1999 to May 2001. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2003 rating decision. The issue of whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a head and neck injury is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence does not show that the Veteran's psychiatric disability either was caused by or began during her military service. CONCLUSION OF LAW Criteria for service connection for a psychiatric disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Veteran asserts that she has a psychiatric condition that first manifested while she was on active duty. There is no dispute that the Veteran currently has a psychiatric disability, as VA treatment records confirm that the Veteran currently has bipolar disorder or some other variety of schizoaffective disorder. However, the earliest psychiatric treatment records appear in approximately January 2003, more than a year after she separated from service. As such, the issue becomes whether the evidence shows that her psychiatric condition was either caused by or began during her period of military service. For the reasons discussed below, the Board concludes that it does not. The Veteran has asserted (in a January 2003 VA treatment record) that she received psychiatric treatment while in service. However, this statement came in the course of a psychiatric treatment session in which the Veteran was noted to have grandiose and persecutory delusions and was assigned a Global Assessment of Functioning (GAF) score of 35 which is indicative of some impairment in either reality testing or communication. Additionally, the doctor at the session indicated that it was unlikely that the Veteran had prominent psychotic symptoms while in the military. As such, the Board concludes that this isolated post-service statement is insufficient to establish in-service psychiatric treatment. The Veteran's contention that she received treatment in service is further undermined by the fact that her service treatment records are silent as to any psychiatric complaints while she was in service; and by the fact that no service treatment records show any treatment for a psychiatric condition. Additionally, the Veteran was found to be psychiatrically normal at her separation physical. The Veteran's DD-214 does show that she was discharged from service under honorable conditions, with a notation that the reason for separation was misconduct. The Board remanded the Veteran's claim in April 2007 to in part obtain the Veteran's service personnel records to determine the reason for the "misconduct" notation. However, while the Veteran's personnel records were obtained, there was no indication of any misconduct shown; and more specifically there was no showing of any psychiatric symptomatology. The Veteran's representative has argued that because the personnel records did not describe any actual misconduct, the personnel records are incomplete. However, there is no actual evidence supporting this speculation; and the response to the Board's request to furnish the Veteran's entire personnel file was that all images related to the request were provided. As such, the Board concludes that evidence of additional personnel records has not been shown such that an additional remand would be warranted. While the Veteran believes that her psychiatric condition was either caused by or began during her military service, she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). 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 (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the Veteran could competently testify about symptoms she experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, the Veteran has made some vague assertions to receiving psychiatric treatment while in service. However, to the extent that these statements are considered competent, they cannot be construed as credible, as their accuracy is thoroughly undermined by the fact that no service treatment records show any psychiatric treatment and there is no record of any psychiatric complaints being voiced at the Veteran's separation physical which found her to be psychiatrically normal. As such, the Veteran's statements alone are insufficient to establish that she developed a psychiatric condition either during service or as a result of service. In summary, no credible evidence has been presented that establishes that the Veteran's current psychiatric disability either was caused by or began during her time in military service. There is no evidence of any psychiatric treatment in the service treatment records; and no medical opinion has been submitted suggesting that the Veteran has a psychiatric condition that either began during or was otherwise caused by her military service. Therefore, the criteria for service connection have not been met, and the Veteran's claim is accordingly denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in May 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The Board finds that any defect concerning the timing of the notice requirement was harmless error. Although the notice provided to the Veteran was not given prior to the first adjudication of the claim, the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Additionally, the Veteran's claim was readjudicated following completion of the notice requirements. VA treatment records have been obtained as have service treatment records and service personnel records. The Veteran was scheduled for a hearing before the Board, but she failed to appear. While no VA examination was provided with regard to the Veteran's psychiatric condition, the medical evidence does not suggest that such a condition was either caused by or began during her military service. As such, no such examination is warranted at this time. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of the denial of the Veteran's psychiatric claim, no disability rating or effective date will be assigned, so there can be no possibility of any prejudice to the Veteran with regard to either issue under the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a psychiatrist disability is denied. REMAND In April 2007, the Board remanded the Veteran's claim of whether new and material evidence had been presented to reopen a claim of entitlement to service connection for residuals of a head and neck injury to provide the Veteran with notice of why her claim was previously denied, and to explain to her what evidence was necessary to reopen her claim. Additionally, it was noted that if any evidence of a head or neck injury was contained in the treatment records that were obtained that a VA examination should be provided. Treatment records were obtained and the Veteran was scheduled for a VA examination. However, while letters informing the Veteran of the scheduled examination were sent in January 2009 and again in March 2009, it does not appear that either letter ever reached the Veteran, since they were not sent to the latest address of record. Therefore, an additional remand is warranted to provide the Veteran with a new examination. Additionally, given the uncertainty surrounding the notification provided to the Veteran, the notification requested in the Board's April 2007 should be resent as well. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran of information and evidence necessary to reopen her claim, what evidence, if any, she is to submit, and what evidence VA will obtain with respect to her claim. Further, explain the meaning of new and material evidence and ensure that an explanation is provided as to why the Veteran's claim was previously denied. 2. Obtain copies of the Veteran's VA treatment records from September 2007 to the present. 3. Then, schedule the Veteran for an examination. The Veteran's claims file should be provided and should be reviewed by examiner. After examining the Veteran, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent) that any current disability is related to the Veteran's in-service head injury that is described in her service treatment records. Any opinion should also address the consequences, if any, of the Veteran's post-service (April 2002) automobile accident, with respect to this claim. 4. When the development requested has been completed, the Veteran's claim should be readjudicated. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response. The Veteran has the right to submit additional evidence and argument on the matter 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. 2009). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs