Citation Nr: 1134856 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 09-07 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for psychiatric disability, to include a depressive disorder, schizoaffective disorder, an obsessive-compulsive disorder, and post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans (VA) Regional Office (RO) in Newark, New Jersey. In September 2010, the Veteran testified at a Travel Board hearing held before the undersigned Acting Veterans Law Judge. In January 2011, the Board remanded the claim for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran failed, without good cause, to report for a VA examination, which was scheduled to be conducted in April 2011 in compliance with the Board's January 2011 remand instructions. 2. There is no competent medical evidence showing that the Veteran currently has, or has had, PTSD due to service since he filed his claim in April 2007. 3. There is no competent or credible evidence of a nexus between any diagnosed psychiatric disorder other PTSD, to include a depressive disorder, schizoaffective disorder, and an obsessive-compulsive disorder, and service. 4. A psychosis was not compensably disabling within a year of the Veteran's separation from active duty. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, depression, and generalized anxiety disorder, was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307. 3.309, 3.326, 3.655 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in April 2007, February 2008, and February 2011 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided information addressing how disability evaluations and effective dates are assigned in April 2007 correspondence. There is no evidence that any VA error in notifying or assisting the Veteran reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to the extent possible. The RO obtained the appellant's service treatment records, some private treatment records, and, pursuant to the January 2011 Board remand, Social Security Administration records. In January 2011, the Board remanded the claim of entitlement to service connection for a psychiatric disorder to schedule the Veteran for a VA examination. The claimant failed to report for the examination scheduled in April 2011. Neither the Veteran nor his representative has presented any reason for his failure to report for the scheduled examination. The Board also remanded the claim to obtain any records from Bergen Pines County Hospital from 1990, Preferred Behavioral Health, and the New Jersey State PTSD program. In February 2011 correspondence, the RO asked the Veteran to authorize the release of these records. The Veteran did not respond to that request. The duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). It is the Veteran's responsibility to present and support his claim. 38 U.S.C.A. § 5103. There is no further duty to assist the appellant with regard to obtaining a VA examination or private treatment records. The discs from the Social Security Administration contain a copy of Bergen Pines County Hospital records dated in 1990, which the RO asked the Veteran to authorize the release of in February 2011 correspondence. Although the RO did not print a copy of these records, the July 2011 supplement statement of the case reflects that the RO reviewed the Social Security Administration records. The Board has no basis upon which to doubt that the RO reviewed the Bergen Pines County Hospital records dated in 1990. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) ("There is a presumption of regularity that attaches to actions of public officials."). Neither the appellant nor his representative has suggested that these records were not reviewed by the RO. Since the Veteran has frustrated the RO's attempt to obtain compliance with the terms of the January 2011 remand, complete compliance has been rendered impossible. Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of due process when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Board, therefore, finds that the RO substantially complied with the remand instructions. Hence, another remand is not in order. Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Where a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of active duty service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If a stressor claimed by a veteran is related to that claimant's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the claimant's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a claimant experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the claimant's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39852 (July 12, 2010). When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. Examples of "good cause" include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655. Analysis As was described, the Veteran failed to report for a VA examination that was scheduled pursuant to the Board's remand instructions. Neither he nor his representative has presented good cause for such failure to report. It is plain from the record before the Board that the Veteran has been advised of what was required of him to adjudicate this claim, but he has failed to comply. See Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1991) (the duty to assist includes a duty to be "helpful and clear in explaining to a veteran what evidence [the veteran] needs together with help and advice in obtaining it"). There is no correspondence or report of contact from the Veteran or his representative that would explain his failure to report for the examination scheduled to be conducted in April 2011. The Board is mindful of 38 C.F.R. § 3.655, which provides that When entitlement to a benefit cannot be established without a current VA examination or reexamination, it is the responsibility of VA adjudicators, based upon their administrative experience and expertise in reviewing many claims of this nature, to determine at what point the record is sufficiently developed to support a reasonably informed decision. See 38 C.F.R. §§ 3.159, 3.326; see also Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). As provided in 38 C.F.R. § 3.159(c)(4), 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. To support this objective, the regulations provide that "[i]ndividuals for whom an examination has been scheduled are required to report for the examination." 38 C.F.R. § 3.326(a) (emphasis added). Thus, the regulations clearly indicate it is the duty of VA to determine the adequacy of evidentiary development, and the duty of the veteran to cooperate with VA in these efforts. The Veteran served in the Republic of Vietnam and the evidence of record at the time of the remand contained competent medical evidence of diagnoses of psychiatric disorders other than PTSD. In this case, a VA examination was necessary to confirm the clinical presence of PTSD and to determine whether any other psychiatric disorder was related to active service before the benefit sought by the claimant could be granted. 38 C.F.R. §§ 3.159, 3.303. The Board has reviewed all of the evidence of record, to include the service treatment records, private treatment records, and the Social Security Administration records. As before, there remains no competent medical evidence showing that the Veteran currently has, or has had, PTSD due to service since he filed his claim in April 2007. Turning to a psychiatric disorder other than PTSD, the service treatment records show no complaints of psychiatric symptomatology or diagnoses of a psychiatric disorder. At the separation examination, the appellant was psychiatrically normal, and he denied any history of psychiatric symptomatology. The evidence of record also does not reveal any competent evidence of a psychosis during service or a compensably disabling psychosis within a year of the Veteran's separation from active duty. In fact, a provisional diagnosis of psychotic disorder not otherwise specified was not made until 1990 and a schizoaffective disorder was not diagnosed until 2007. Significantly, the post-service treatment records do not include any opinion linking any diagnosed psychiatric disorder to service. Although the Veteran reported during the 1990 hospitalization that he had a lifelong history of psychiatric symptomatology since his adolescence, it is evident that this notation is merely a history offered by the appellant alone. This negates its probative value because a bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Given that the Veteran claimed in 1990 that he had a lifelong history of psychiatric symptomatology since his adolescence and given that he testified that he has had psychiatric symptomatology since active service, the Board will address the appellant's claim of continuity of symptomatology. The Veteran is competent to report continuity of symptomatology. The Board, however, finds the appellant's report of continuity of symptomatology to not be credible. While the Veteran claimed in 1990 that he had had psychiatric symptomatology since adolescence, he denied any history of psychiatric symptomatology on both entrance and separation examinations. The Board places greater weight on the appellant's contemporary reporting than on reporting later in time, particularly when the latter is offered in support of a claim for monetary benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). See also Caluza v. Brown, 7 Vet. App. 498, 510 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). Therefore, the Board rejects the Veteran's claim of continuity of symptomatology. Lay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a lay person is competent to identify the medical disability, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at that time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The claimant, as a lay person without medical training, does not meet the burden of presenting competent evidence as to a diagnosis or etiology, merely by presenting his own statements and testimony. While the appellant can attest to factual matters to which he has first-hand knowledge, e.g., particular psychiatric symptomatology, he is not competent to state that he has a psychiatric disorder due to service. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). There is no evidence showing, and the Veteran does not assert, that he has medical training to provide competent medical evidence regarding the diagnosis or etiology of a psychiatric disorder. VA offered the Veteran an opportunity to have a VA examination to determine if he has a psychiatric disability due to service. The appellant, however, failed to appear for the scheduled VA examination. His failure to cooperate in attending the examination has left the record devoid of any competent medical evidence of PTSD and any competent medical nexus evidence relating a psychiatric disorder to service. 38 C.F.R. § 3.655(b). The duty to assist is not always a one-way street. If he wishes help, the Veteran cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood, 1 Vet. App. at 192-93. While VA has a duty to assist the appellant in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the claimant to appear for VA examinations. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). As there is no competent medical evidence of PTSD, there is no competent medical nexus evidence showing that the Veteran's psychiatric disorders are related to service, there is no evidence of a compensably disabling psychosis within one year of the appellant's separation from active duty, and the Veteran failed to report for the scheduled examination, his claim must be denied. ORDER Entitlement to service connection for psychiatric disability, to include a depressive disorder, schizoaffective disorder, an obsessive-compulsive disorder, and PTSD, is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs