Citation Nr: 1032014 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-07 724 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Nigam, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1980 to July 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the RO. The record reflects that the Veteran was scheduled to appear at a hearing before the Board in November 2008 at the RO. However, he cancelled his hearing, and his request for a Board hearing is therefore deemed withdrawn. 38 C.F.R. § 20.704 (2009). The Board remanded the case to the RO in the case was remanded to the RO in February 2009. The purpose of the remand was to obtain outstanding Social Security Administration records and VA treatment records. The Board finds there has been substantial compliance with its February 2009 remand directives. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue addressed in this decision was obtained. 2. The Veteran is not shown to have manifested complaints or findings of an innocently acquired psychiatric disorder in service or for many years thereafter. 3. The Veteran has not present credible lay assertions sufficient to establish a continuity of symptomatology due to an innocently acquired psychiatric disorder since service. 4. The currently demonstrated innocently acquired psychiatric disorders to include paranoid schizophrenia, insomnia, psychotic disorder not otherwise specified (NOS), depression, anxiety, and stress syndrome are not shown to be due to a documented event or incident of the Veteran's active service. CONCLUSION OF LAW The Veteran does not have an innocently acquired psychiatric disability, to include any manifested by schizophrenia, due to disease or injury that was incurred in or aggravated by active service; nor may schizophrenia be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009). Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that 38 C.F.R. 3.159 was recently amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 38 C.F.R. § 3.159 (2009). In Pelegrini, the Court held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a service connection claim. Those elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman 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 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, in letters dated in November 2003, March 2006, November 2007, June 2008 and March 2009, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. Additionally, the March 2006 letter specifically informed the Veteran as to disability ratings and effective dates. The Board notes that the claim was readjudicated via a Supplemental Statement of the Case (SSOC) issued in May 2010. There was a timing deficiency with the March 2006 notice letter, with respect to the notice requirements under Dingess because it was provided after the initial rating action. Mayfield v. Nicholson. The timing deficiency was remedied by the fact that the Veteran's claims were readjudicated by the RO in the May 2010 SSOC after proper VCAA notice was provided and after the Veteran had an opportunity to respond. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service treatment records, VA and private treatment records and SSA records. Also of record and considered in connection with the appeal are various written statements submitted by the Veteran and his representative. As discussed, the Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any defect in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Legal Criteria In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. § 1131. Service connection may also be established for disease diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). To establish a service connection for an injury, a veteran is required to show (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the a veteran is required to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, private and VA treatment records, and SSA records. The Veteran asserts that his current acquired psychiatric disorder, to include schizophrenia, had its onset in service. Generally, he had symptoms related to his schizophrenia during basic training and when working as an armor crewman in service. However, the Board notes that the service treatment records are negative for any complaints or findings referable to an innocently acquired psychiatric disorder. Moreover, an acquired psychiatric disorder was not shown by the medical evidence to have been clinically manifested until many years after service. This is strong evidence against a finding of any continuity of symptomatology. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). The VA and private treatment records beginning in March 1991, contain various diagnoses including paranoid schizophrenia, insomnia, alcohol abuse, cocaine abuse, cocaine dependence in remission, psychotic disorder NOS, depression, anxiety and stress syndrome. Further, the Veteran has been treated with antipsychotics and has been hospitalized on multiple occasions due to his psychiatric disorder. Notably, a private psychological evaluation, dated in March 1997, indicates that the Veteran had been psychiatrically hospitalized on at least three occasions with the most recent occurring in November 1996 following an incident in which he shot a gun and got into an altercation with his wife. The Veteran, when questioned about substance abuse, at first denied any treatment, and then admitted to attending drug and alcohol class at VA. He reported having prior cocaine use but denied current use. The Veteran was diagnosed with psychotic disorder NOS, rule out cocaine abuse and rule out alcohol abuse. Significantly, a VA staff psychiatrist's mental health note, dated in April 1997, diagnosed the Veteran with psychotic disorder NOS and schizophrenia with late onset likely. The same VA psychiatrist discharged the Veteran from the hospital later that month. Here, the psychiatrist noted that the underlying etiology of the Veteran's new onset psychosis was unclear. The VA psychiatrist added that the Veteran was certainly outside the typical age range for new onset schizophrenia; however, it could not be ruled out. Additionally, the psychiatrist observed that the Veteran's labile behavior at the hospital during previous admissions was suggestive of possible gross disorganization or manic behavior, and concluded that a definitive diagnosis could not be made given the Veteran's minimization of his symptoms and unclear premorbid history. A February 2000 VA treatment record shows that the Veteran presented to the emergency room stating that he needed a test to determine whether he used drugs, and denied using cocaine even though his wife had found a drug apparatus on his person. He reported cutting some wire but not using it for drug purposes. He did test positive for cocaine, but did not know how the cocaine got into his system. The Veteran was diagnosed with paranoid type schizophrenia, alcohol abuse, and cocaine abuse. The Board finds the findings of the April 1997 VA psychiatrist to be probative on the matter of the etiology of the Veteran's acquired psychiatric disorder, in that the psychiatrist acknowledged the late onset of the Veteran's mental disorder. Moreover, there is no competent evidence establishing a nexus between any current condition and a specific event or incident of the Veteran's service. In the July 2010 Appellant's Post-Remand Brief, the Veteran's representative argued that the Veteran was entitled to a VA examination to determine the nature and etiology of his psychiatric disorder. In addressing the statutory requirements of 38 C.F.R. § 3.159(c)(4), the Board notes that, in a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. Here, on review, the Board finds no competent evidence to support the Veteran's lay assertions that his current innocently acquired psychiatric disability had its clinical onset during his service. As noted, his service treatment records are negative for complaints or findings to any psychiatric disorder. Accordingly, without an identified antecedent event during service, VA examination would serve no useful purpose as any opinion would be based on speculation. There is no competent evidence to support of the Veteran's claim or otherwise to support his own lay statements. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Board also finds in this regard that the Veteran has not presented credible lay assertions for the purpose of linking the onset of any innocently acquired psychiatric disorder to the time that he served on active duty based on a continuity of symptomatology. Moreover, the Veteran has not presented any competent evidence to support his lay assertions. The Board notes that when the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993), Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Accordingly, as the preponderance of the evidence is against the claim, the claim of service connection for an acquired psychiatric disorder, to include schizophrenia must be denied. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. § 3.303. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. In reaching this conclusion, the Board notes that it is precluded from reaching its own unsubstantiated medical conclusions, and is instead bound on this matter by the medical evidence of record. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); in Colvin v. Derwinski, 1 Vet. App. 171 (1991). ORDER Service connection for an innocently acquired psychiatric disorder, to include schizophrenia, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs