Citation Nr: 1300920 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 08-01 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to July 1981. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. A Board decision, dated in December 2010, denied the benefits sought. This decision was vacated and remanded by the U.S. Court of Appeals for Veterans Claims (Court) in July 2011. The Board, subsequently, remanded the claims for further development in February 2012. Compliance with Court and Board directives has occurred, and the claims are ripe for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2010, the appellant appeared and testified before the undersigned Veterans Law Judge at a Travel Board hearing held at the Milwaukee RO. The hearing transcript is associated with the claims folder. The entire claims file has been reviewed in this case, to include the portion contained in the electronic Virtual VA system. FINDINGS OF FACT 1. The Veteran was not noted to have had a psychiatric disability at service entrance, and he is presumed to have been sound at entry. 2. The evidence of record establishes that the Veteran's mood disorder clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated by service. 3. The Veteran is not in receipt of service-connected benefits for any disability, and thus does not meet the basic legal criteria for a temporary total disability rating. CONCLUSIONS OF LAW 1. The presumption of soundness is rebutted with respect to the claimed psychiatric disability, and the criteria for service connection are thus not met. 38 U.S.C.A. § 1132 (West 2002); VAOPGCPREC 3-03 (July 16, 2003); 38 C.F.R. § 3.303 (2012). 2. The criteria for entitlement to a temporary total evaluation for hospitalization for a service-connected disability under 38 C.F.R. § 4.29 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.29 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in- service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, the nexus between service and the current disability can be satisfied by evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Certain chronic conditions, such as psychoses, if manifest to a compensable degree within the first post-service year, will be presumed to have been incurred in active service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term 'noted' denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing 'that the increase in disability is due to the natural progress of the disease.' 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. Legal Criteria-Total Temporary Ratings Under 38 C.F.R. § 4.29, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days (emphasis added). Subject to the provisions of paragraphs (d), (e), and (f) of this section, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service- connected disability. 38 C.F.R. § 4.29(a) (2012). Analysis The Veteran in this case contends that he developed an acquired psychiatric disorder, variously diagnosed as bipolar disorder, mood disorder, and depression, as a result of his military service. He contends that he developed symptoms in service which caused behavior abnormalities, and that his currently-diagnosed disability should be found to have had causal origins in active military service. Further, the Veteran contends that he should be awarded a temporary 100 percent rating for admission to a VA domiciliary substance abuse treatment program. At the outset, the Board notes that the Veteran is not currently in receipt of service-connected compensation benefits for any disability, and as further explained below, service connection will not be granted for his psychiatric disability. The award of service connection must precede any discussion of a disability rating for a claimed disability. Specifically, with respect to temporary total disability ratings, the 21 day required hospitalization must be for a service-connected disability. See 38 C.F.R. § 4.29. Accordingly, there is no legal basis for the allowance of a temporary 100 percent rating, despite the Veteran's inpatient domiciliary stay, and such a claim will be denied. Regarding the claim for service connection, the Board notes that it was initially denied via a Board decision in December 2010. It was determined at that time that the evidence did not support a finding of a chronic psychiatric disability having causal origins in active service. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and pursuant to a joint motion for remand (JMR) between the Veteran's representative and counsel for the Secretary of Veterans Affairs, the December 2010 Board denial was vacated via a July 2011 Court order. The Board, in compliance with the mandates of the JMR/Court order, remanded the claim for additional evidentiary development in February 2012. It is noted that this remand order also contained a detailed discussion as to why a second personal hearing with a VLJ was not required in this case. As this decision represents the final disposition on this appeal, the finding done in the February 2012 remand is incorporated below. The relevant portions read: The JMR was premised on the fact that the Board hearing had not complied fully with the holding in Bryant v. Shinseki, 23 Vet. App. 488 (2010). Bryant held that 38 C.F.R. 3.103(c)(2) required that the RO official or Veterans Law Judge (VLJ) who conducted a hearing fulfill two duties. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The JMR suggested that in this case, while the undersigned VLJ explained, in detail, the issues on appeal, the VLJ failed to "explain fully" the outstanding issues material to substantiating the appellant's claim. The JMR did explain that in the Veteran's case the issue material to substantiating his claims is evidence that his psychiatric disorder first manifested in service or was otherwise causally related to events in service. Again, the parties did not cite what part of this was not provided at hearing, it which this very issue was addressed. The Board initially decided the Veteran's claim because the evidence of record did not establish that the criteria for service connection for an acquired psychiatric disability had been met. The Board reviewed the evidence of record at that time and found that it provided an adequate basis for a decision, but ultimately did not support a grant of service connection. Moreover, the Board specifically found in 2010 that there was no outstanding evidence that needed to be obtained in order to reach a fair determination on the appellant's claim. The JMR suggested that the undersigned VLJ may not have specifically explained "fully" the outstanding issues that were material to substantiating the appellant's claim at his Board hearing, without indicating what it was that the VLJ should have said and failing to cite what, in fact, was said at the hearing that would satisfy the Bryant requirements, even if this decision applied in this case, which is now clear does not. However, for the following reasons, any such failure is ultimately immaterial to the resolution of the appellant's appeal: First, since the JMR was issued regulatory changes were promulgated, effective August 23, 2011, to clarify that 38 C.F.R. § 3.103(c)(2) only applies to hearings before the agency of original jurisdiction. In other words, the holding in Bryant is not applicable to Board hearings; as Board hearings were never intended to be covered by the hearing provisions in 38 C.F.R. § 3.103, as Board hearings are governed by the hearing provisions in 38 C.F.R. Part 20, subpart H. Thus, the regulatory clarification has effectively mooted the holding in Bryant as it pertains to the Board. As such, even if the Veteran's claim were to be remanded for another hearing, the VLJ at the new hearing would be under no obligation to "fully" explain to the appellant issues material to substantiating his claim under this regulation (beyond what was clearly done in the prior hearing). Thus, the basis of the JMR is effectively moot. Importantly, the regulatory change is clearly retroactive. The change in August 2011 does not modify the rules regarding hearings, but provides clarity regarding a pre-existing rule, clearly and unambiguously stating that 38 C.F.R. § 3.103(c)(2) only applies to hearings before the agency of original jurisdiction, and not the Board, as Board hearings are governed by the provisions in 38 C.F.R. Part 20, subpart H. Second, in the JMR, which was drafted by the appellant's representative, the representative explained specifically what was material to substantiating the appellant's claim; and the JMR even pronounced that on remand the appellant would be free to submit this evidence. As such, it cannot be said that the appellant lacks actual knowledge of what is necessary to substantiate his claim, as it was clearly spelled out in the JMR. More importantly, the Board makes the following finding of fact: Given his testimony, the appellant clearly had actual knowledge of what was necessary to substantiate his claim at the hearing before the undersigned, if not well before. In this regard, it is important to note that the undersigned has spoken directly with the Veteran at hearing (emphasis added). Third, to the extent (if any) that the Board's failure to fully explain to the appellant issues material to substantiating his claim to him constituted harmful error, the United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Rather, the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Id. Here, neither the appellant, nor his representative, has actually suggested that the appellant was in any way prejudiced by any failure of explanation on behalf of the Board. Importantly, the JMR in this case did not order a new hearing. Instead, it required the Board to undergo a "critical examination" of the justification for its previous decision, which the Board has done above. If the JMR required to the Board to return the case to the RO for a second Board hearing, it should have so required it within the four corners of the JMR. It did not. The JMR simply required the Board to undergo a "critical examination". The requirements of the JMR have been met above. For multiple reasons, as cited above and below, a second hearing is not required. Beyond the above, a review of the hearing transcript in October 2010 clearly indicates that the appellant understood what was required to prevail in his case. The appellant, with the assistance of a highly qualified representative, clearly testifies that he did not have a problem prior to service, the problems he had in service that allegedly lead to his disability, and that he has been currently diagnosed with the condition at issue (hearing transcript at pages two to six). The Board can find no flaw in the representative's presentation of this case at hearing. The hearing provided the appellant with an opportunity to provide his testimony in a manner that fully supported his claims at that time and there is every basis for a finding that the appellant fully understood what was required to prevail in this case. In this regard, it is important to note that this was not a complex issue: The appellant claims that he has a disability as the result of his military service from June 1980 to July 1981, nothing more. The fact that the Board disagreed with the appellant's contentions, finding against the claim, does not, ipso facto, suggest that the appellant did not understand "fully" the outstanding issues that were material to substantiating his claim at his Board hearing. Significantly, there was never any suggestion in the JMR that would support a finding that the appellant did not, in fact, fully understand the outstanding issues that were material to substantiating his claim. As such, for the reasons cited above, the Board makes the following factual finding: the appellant fully understood the outstanding issues that were material to substantiating his claim at the time of his hearing before the Board; and, therefore, an additional hearing is not warranted or required on remand (emphasis added). As the Board determined that a new hearing was not necessary, and as there had nonetheless been additional evidence submitted in support of the Veteran's claim, the appeal was remanded so that a new, comprehensive VA examination addressing the etiology of the Veteran's psychiatric condition could be afforded. The decision of the Board stands: A second hearing is clearly not warranted on multiple bases. Beyond this fact, the Supreme Court test in Shinseki v. Sanders has clearly and unmistakably not been met in this case. The new evidence the Veteran submitted only supports the finding of no prejudice to the Veteran. The Veteran submitted the opinion of a VA psychologist, dated in November 2011, who noted that there were six behavioral incidents in service and that, in his opinion, these incidents were at least as likely as not a "result of bipolar." The Veteran had been in a counseling relationship with this provider, and records contained in the electronic portion of the claims file indicate treatment for bipolar disorder. In these records, however, there is no opinion which explains why bipolar disorder is the correct diagnosis or what, if any, relationship this diagnosis would have to service. As regards the 2011 opinion, as there was no associated rationale, the Board dispatched the claim for further development. The returned VA examination, dated in March 2012, contained a diagnosis of mood disorder not otherwise specified (NOS). During this examination, the Veteran reported having anxiety and depressed mood during childhood, and he also admitted to using alcohol and illegal drugs during that time. Based on this, the examiner concluded that it was not likely that the current psychiatric disorder began or was "otherwise caused" by military service. The examining psychologist noted that "it is clear" that the Veteran "had a difficult early child[hood] and that his symptoms are exacerbated by stress." The examiner stressed that "per [the Veteran's] own report, symptoms pre-dated his military involvement." The examiner then clarified his comments regarding the exacerbation of the Veteran's symptoms via stress. Specifically, he stated that the Veteran was "unable to recall a distinct period of persistently elevated, expansive, or irritable mood lasting throughout at least four days, [which] was clearly different from his nondepressed mood and was not associated with his drug use at any point during his military career." It was also noted that the Veteran could not relate such an experience as having happened even after service discharge. The examiner stated that any symptoms noted in the service treatment records "do not support a burgeoning bipolar disorder, particularly when considering the Veteran states that his drug and alcohol use at that time was contributing to his poor decisions." The Veteran's service treatment records are negative for any psychiatric complaints. He was accepted into military service with a "negative medical history" noted on the report of the entrance physical examination in 1980. There were, as has been noted by VA providers, several instances of behavioral problems in service which ultimately resulted in the issuance of a General Discharge Under Honorable Conditions. Specifically, the Veteran had been reprimanded for failing to report to duty on time, for being absent from his post without authorization, and for unauthorized visitation. There is additional documentation that the Veteran made verbal threats against another airman, and that he was also reprimanded for this behavior. Given that the Veteran was not found to exhibit any psychiatric disability upon his entry into service, he is presumed sound for VA purposes. 38 U.S.C.A. § 1111. Thus, the question then turns to whether clear and unmistakable evidence exists to rebut that presumption. On the first part of this analysis, the Board notes that at the recent VA examination, the Veteran admitted to having a "difficult" childhood. The clinical records prior to this assessment also corroborate this, as the Veteran, in 2006, had been assessed by VA providers as having had childhood trauma which warranted the rule-out of posttraumatic stress disorder (PTSD). The 2012 VA examiner, based on the Veteran's own report of his symptoms in the clinical context, stated that it was "clear" that the Veteran had a difficult childhood, and that the symptoms of a current mood disorder began during childhood and thus, pre-existed military service. It is also noted that the November 2011 VA opinion, which in itself, contained no rationale for its conclusions, was considered by the 2012 examiner. Essentially, based on the Veteran's reported history of drug/alcohol abuse, to include a lack of sustained reported symptoms of depression during service or after (unrelated to substance abuse), it was concluded that bipolar disorder was not the correct diagnostic entity for the Veteran's current disability picture. Given that the 2012 opinion contains an explanation as to why mood disorder is the correct diagnosis, it must be given more probative weight than the November 2011 opinion, which merely lists several in-service behavioral problems prior to stating that bipolar disorder is present. Indeed, based on the sparse content of the November 2011 report, it cannot be given much credence in support of the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). The 2012 VA opinion is the only report of record which was based on a review of the entire in-service and post-service history in addition to a thorough examination, and thus, the Board concludes that the Veteran currently experiences a mood disorder. Id. Clinical evidence of record also establishes a comorbid substance abuse disorder (or disorders) being present. The Veteran's own reports of his symptom history for the mood disorder-something on which he, as a lay person, is competent to address-date prior to service entry. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner, in noting this, opined that as a result of these reported symptoms, the mood disorder pre-existed service. The Veteran's report of his symptoms were made in the context of seeking appropriate medical treatment, and accordingly, it is determined that they bear the indicia of reliability and are entitled to great probative weight. See LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Given this, the Board is satisfied that the evidentiary record establishes that a current mood disorder had causal origins prior to service, and it can be concluded that the current disability clearly and unmistakably pre-existed service. The Board, in determining this, must now look to whether there is clear and unmistakable evidence that the pre-existing mood disorder was not aggravated by service. This can be shown by establishing that there was no increase in disability during service, or in noting that any increase in disability [was] due to the natural progress of the preexisting condition. 38 U.S.C.A. § 1153. Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004). Here, the Board notes that there is not a single entry in the service treatment records of psychiatric complaints. Even at the Veteran's separation physical examination, which was proximate to the time of adverse disciplinary proceedings, the Veteran denied having any type of psychiatric symptomatology, providing factual evidence against his own claim. Further, in the context of his assessment by the March 2012 VA examiner, the Veteran could not recall having a period of increased symptoms (elevated, expansive, or irritable mood) for at least a four-day period that was different from his non-depressed mood, either in service or at any point thereafter. The Veteran may have had altered moods pursuant to drug abuse; however, even assuming, arguendo, that this was a persistent feature in service (and this is not suggested by the record), the Board cannot grant service connection for primary alcohol and drug dependence (which have, in this case, been diagnosed as separate, comorbid disorders). See Allen v. Principi, 237, F.3d. 1368 (Fed. Cir. 2001). The Veteran did submit a statement of his brother, received in October 2010, which purports to be evidence of depression and anxiety in the time proximate to service discharge in 1981. The Veteran's brother does not possess any medical credentials; however, he is competent to report the symptoms he noted in the Veteran. See Jandreau at 1372, 1377. When, however, this opinion is viewed against the Veteran's own admissions of not having a persistent increase in his symptoms (either in service or at any point thereafter), in the context of a medical examination, the lay observations of the Veteran's brother cannot be given significant probative value. Simply put, the Veteran's report of not having a sustained increase in depressed symptoms at any point in his life, given in the context of a medical opinion, is highly probative against the claim. This formed the basis of the only medical opinion of record that is both competent and highly credible to address etiology of a chronic psychiatric disability, and that opinion is decidedly against a finding that the Veteran underwent any permanent increase of his mood disorder while in active service. Indeed, based on the type of disability picture presented by the Veteran's report of his symptoms, the examiner was able to conclude, unequivocally, that while there may have been flare-ups of the disorder during periods of stress, that these exacerbations did not represent an overall increase in severity of the mood disorder from what was present at service entry. Accordingly, the Board can conclude that there is clear and unmistakable evidence that the Veteran's pre-existing mood disorder was not aggravated beyond the natural progression of the disease process by service. Thus, the presumption of soundness is rebutted in this case, and the claim for service connection must be denied. 38 U.S.C.A. § 1111. The best evidence in this case, including, in some insistences, the Veteran's own statements to heath care providers, supports this finding. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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). 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Compliance with the first Quartuccio element requires notice of the five service connection elements: (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. See 38 U.S.C. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). It is pertinent to note that the Veteran is represented by the Disabled American Veterans (DAV), and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claims, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records. Furthermore, the Veteran has been afforded a comprehensive VA psychiatric examination which addressed his claim for service connection. This examination reviewed the pertinent in-service and post-service evidence, to include reports favorable to the Veteran, and a well-rationalized opinion was provided which clearly and unmistakably established that the Veteran's current psychiatric disorder, a mood disorder NOS, pre-existed service and was not aggravated by service. This opinion is adequate, and there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2012). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to a temporary total evaluation for hospitalization for a service-connected condition under 38 C.F.R. § 4.29 is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs