Citation Nr: 1014455 Decision Date: 04/15/10 Archive Date: 04/29/10 DOCKET NO. 08-30 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to September 1967 and from May 1968 to February 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. A video conference hearing was held before the undersigned Veterans Law Judge in February 2009, and a transcript of this hearing is of record. In May 2009, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain records from the Social Security Administration (SSA). The action specified in the May 2009 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's current anxiety and depression are not caused by or related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, not including PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131(West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for an acquired psychiatric disability other than PTSD. Entitlement to service connection for PTSD was denied in an April 2009 rating decision, and that issue is not currently before the Board. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). 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). Service connection may 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) (2009). Certain chronic diseases, including psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, (West 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2009). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2009). The Veteran has alleged both in written statements and in testimony before the undersigned Veterans Law Judge, that his current symptoms of anxiety and depression are related to his active service. Specifically, the Veteran alleges that during his service in the United States Navy, he had a job that caused him severe stress and that he continues to suffer from anxiety secondary to traumatic memories of this job. On a Report of Medical History completed in November 1965, prior to the Veteran's enlistment in the United States Army Reserve, the Veteran reported that he experienced frequent trouble sleeping and nervous trouble. This was further clarified by a note that the Veteran bit his nails. A medical examination performed at the same time found the Veteran to be psychiatrically normal. On a Report of Medical History, before the Veteran began active duty for training, the Veteran reported frequent trouble sleeping and depression or excessive worry. He reported these symptoms again on a Report of Medical History completed in September 1967 at separation from the Army Reserve. However, a medical examination performed at that time found no psychiatric disorders. The Veteran's remaining service treatment records, including service treatment records from the Veteran naval service show no evidence of complaints of or treatment for an acquired psychiatric, providing evidence against the Veteran's claim. Additionally, there is no evidence of complaints of, or treatment for, an acquired psychiatric disability within one year of service or for many years after service. At his February 2009 hearing, the Veteran testified that he received treatment from a Dr. D., approximately ten years after separation from service, but was unable to locate the treatment provider or obtain any records of this treatment. In March 2009, M.H., a licensed clinical social worker, submitted a letter stating that although she had since destroyed her records, she remembered treating the Veteran, probably in 1996. She stated that the Veteran reported to her that she diagnosed him with PTSD and that while she was unable to provide any records or case notes to support this, she believed that the Veteran was credible based on his description to her of the allegedly stressful events in service. Additionally, in March 2009, the Veteran's spouse testified that the Veteran has suffered from sleep disabilities since they married in 1972, that the Veteran has always been nervous and easily stressed, and that he has a history of alcohol abuse. Also of record are medical records provided by the Veteran's current treatment providers, Dr. B.R. and Dr. D.M.. While these records show more recent treatment for depression and anxiety, the Veteran's treating physicians have repeatedly attributed his symptoms of anxiety and depression to his many medical problems, actually providing evidence against the claim that it is his service that has caused his currently problems. There is no evidence in any of these records that the Veteran's psychiatric symptoms are related to his military service. At an SSA evaluation conducted in February 2007, the examiner concluded that the Veteran's anxiety and depression are secondary to his physical problems and are not severe. The examiner noted that the Veteran was not seeing a therapist for his psychiatric problems and his treatment providers had not referred him to a psychiatrist or psychologist for his anxiety or depression. Importantly, no reference was made to service. Based on the above evidence, the Board finds that the Veteran's current symptoms of anxiety and depression did not have onset in service and are not related to the Veteran's military service. The Veteran reported problems with nerves and depression prior to enlistment in the Army Reserves and prior to reporting for active duty for training, providing evidence against the Veteran's claim by suggesting that he experienced symptoms of depression and anxiety prior to any military service. There is no mention of any psychiatric disorder upon enlistment into the United States Navy or at separation therefrom, and no evidence of complaints of, or treatment for, a psychiatric condition in the Veteran's service treatment records. Additionally, there is no evidence of any treatment within one year of service or for approximately twenty five years after service. The first evidence of psychiatric treatment is the testimony of M.H. that she treated the Veteran in the mid 1990s, probably in 1996. After that, there is no evidence of treatment for an acquired psychiatric disorder until 2004, when the Veteran was treated at Southwest Internal Medicine. However, as discussed above, current medical records attribute the Veteran's noted depression and anxiety to his deteriorating physical health. Overall, not only do the service records provide evidence against this claim, but so to do the post-service treatment records which, overall, indicate a problem not associated with service. The Board has carefully considered the Veteran's testimony that his psychiatric symptoms had onset in service and have persisted since. However, the Board finds other evidence of record, including the opinions of multiple medical professionals, evidence of psychological problems predating the Veteran's service, the absence of any complaints of (or treatment for) an acquired psychiatric disability for many years after service, no problems in service, and indications of a problem associated with deteriorating physical health (a problem not associated with service) to be more probative concerning the cause of the Veteran's current acquired psychiatric disability. Even if the Board were to assume that the Veteran's duties during his naval service were difficult and stressful, the preponderance of the evidence show that any current anxiety or depression at this time the Veteran experiences is caused by multiple serious medical problems not related to service. The Board has considered whether the Veteran could be awarded entitlement to service connection for an acquired psychiatric duty secondary to any of these medical problems, but unfortunately, the Veteran currently has no service connected disabilities. Accordingly, entitlement to service connection for an acquired psychiatric disability cannot be granted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the 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 (the Court) 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 elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed 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 letters sent to the Veteran in June and November 2007, prior to the initial rating decision. These letters informed the Veteran of what evidence was required to substantiate his claim and of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the claimant 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). It appears that all evidence necessary for a fair adjudication of the claim is of record. The RO has obtained the Veteran's service treatment records, as well as SSA and private medical records. The Board has also considered whether the Veteran should be afforded VA examinations for his acquired psychiatric disability, but as there is no evidence of a chronic acquired psychiatric disability in service and medical evidence that strongly relates the Veteran's current psychiatric symptoms to his current health problems, a referral for a VA examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that the service and post-service treatment records, as a whole, provide highly probative evidence against this claim. 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. Based on the above, 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 appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs