Citation Nr: 1301262	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  07-37 409	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1991 to April 1992 and served with the Army National Guard from April 1992 to September 2003.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.

To support his claim, the Veteran testified at a hearing at the RO in November 2006, before a local Decision Review Officer (DRO).  The Veteran also appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in May 2010.  Transcripts of the hearings have been associated with the claims file.

The Board remanded this matter in November 2011 for additional development, which has been completed.

Subsequent to the certification of the Veteran's appeal, the Board received additional evidence that was not initially considered by the RO.  However, the Veteran's representative submitted a written waiver of the Veteran's right to have the evidence initially considered by the RO, and thus the Board will consider it in making a decision on the merits of the case.  See 38 C.F.R. § 20.1304(c) (2012).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 


FINDING OF FACT

The best evidence in this case suggests no association between a current acquired psychiatric disability and the Veteran's military service.

CONCLUSION OF LAW

Service connection for an acquired psychiatric disability is not established.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any injury or disease diagnosed after service, 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).  Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease.  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). 

Active military service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a), (d).  

Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from "injury" incurred or aggravated while performing INACDUTRA.  See 38 U.S.C.A. §§ 101(24), 106, 1110 (West 2002).

National Guard service generally includes periods of ACDUTRA and/or INACDUTRA.  This refers to the two weeks of annual training that each National Guardsman must perform each year or, in some cases, an initial period of training.

ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, 505 of title 32, or the prior corresponding provisions of law.  See 38 U.S.C.A. § 101 (22) (C); 38 C.F.R. § 3.6 (c) (2012).  INACDUTRA includes service the Army National Guard of any State (other then full-time duty) under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law.

Presumptive periods do not apply to ACDUTRA or INACDUTRA.  See Biggins v. Derwinski, 1 Vet. App. 474, 477 -78 (1991).  Therefore, consideration of 38 U.S.C.A. §§ 1111 and 1131 (presumption of soundness), 3.306 (presumption of aggravation of a chronic pre-existing disease); and 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for periods of ACDUTRA or INACDUTRA is not appropriate.

At the outset, the Board notes that while the Veteran was treated for his acquired psychiatric disability in or near National Guard service from April 1992 to September 2003, there is nothing to indicate a disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from "injury" incurred or aggravated while performing INACDUTRA.  The Veteran himself has never indicated an injury in INACDUTRA that caused this problem.  There is nothing that suggests that the Veteran's service in the National Guard caused from April 1992 to September 2003 (the Veteran's own statements do not support such a finding).

The Veteran seeks service connection for psychiatric disability, claimed as a nervous condition or schizophrenia, based on his active duty.

The Veteran contends, and provided testimony to the undersigned VLJ in May 2010, that his psychiatric disability is related to active duty; specifically, he testified that before he went into active service, he never had an acquired psychiatric disability.  He contends that his symptoms began in basic training, from November 1991 to April 1992.

The Board notes that the Veteran can attest to factual matters of which he had first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).

In this regard, it is important to note that lay testimony is considered competent to report symptoms capable of lay observation.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  As such, the Board is compelled to address the Veteran's assertions.  However, in adjudicating this claim, the Board must assess not only competency of his statements, but also their credibility.  See Buchanan v. Nicholson, 451 F.3d 1331   (Fed. Cir. 2006). 

The Board notes that service treatment records are silent for complaints of, treatment for, or diagnosis of psychiatric disability; however, psychiatric disability is noted in Army National Guard records, starting in 1995, three years after active service ended.

Moreover, a memorandum from the Massachusetts National Guard, Office of the Adjutant General, in July 2003 cited that the Veteran was not found as fit to be retained for additional service.    

A psychiatric evaluation in November 2003 showed that the Veteran reported having a chemical imbalance, was on medication for it, but denied having a diagnosis of psychosis nor symptoms of it. The diagnoses were ADHD, mood disorder, and thought disorder.

The record is replete with private treatment records; specifically, the Board notes that in March 2003 the Veteran reported having a psychotic break 8 years prior (1995), in January 2004 he reported a history of hearing voices since age 23 and was diagnosed with schizophrenia and ADHD, and a report in June 2010 showed diagnoses of schizophrenia and ADHD.

Notwithstanding the above, the Veteran submitted a statement in November 2007 that he had a nervous condition since 1993.

As such, the Board finds on this record that the Veteran clearly has noted different dates on which he began having psychiatric problems.  The Veteran's current allegations are not credible and reflect that the Veteran is not a reliable historian of events.  Therefore, his statements are not sufficiently credible to establish that his psychiatric disability began during service. 

After thorough review of the evidence of record, there is no indication that the acquired psychiatric disability stems from service; aside from the Veteran's own assertions.  The best evidence in this case, including the Veteran's most credible statements in this record, indicates a problem that began in 1995, three years after active service ended.

Simply stated, the Board finds that the post-service treatment records (overall) and the service records provide evidence against this claim, outweighing the Veteran's current statements.  There is no clear medical indication, or even suggestion, that any currently diagnosed psychiatric condition is proximately due to or the result of the Veteran's time in military service. 

While the Veteran believes that he has a psychiatric disability as a result of service, he is not medically qualified to advance such an opinion.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  His own statements (prior to filing this claim) indicates a problem that began in 1995. 

Based on the above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder.  In denying his claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


Duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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 in accordance with 38 C.F.R. § 3.159(b)(1) .  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (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 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 provide the claimant with notice 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 way of letter sent to the Veteran in September 2006 that fully addressed all notice elements, including the Dingess criteria, and were sent prior to the initial RO decision in this matter. 

VA has a duty to assist the Veteran 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 Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained pertinent post-service records.  The Veteran was provided an opportunity to set forth his contentions during the hearing before the RO DRO and undersigned VLJ. 

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. v38 U.S.C. § 5103A (d) and 38 C.F.R. § 3.159(c) (4). 

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military 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.  McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Regarding the Veteran's statement of problems in basic training, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute.  In Waters v. Shinseki, 601 F.3d 1274   (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378   (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service.  Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement, as in this case, suggesting a nexus between a current disability and service would not suffice to meet the standard as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. 

Here, as the only evidence that the Veteran's claimed disabilities are related to his military service are his own conclusory generalized lay statement which are unsupported even by speculative medical evidence, VA examinations are not warranted for the claim on appeal.  The best evidence in this case, including the Veteran's own most credible statements, indicates a problems that began years after active service.  A medical opinion, even if obtained, would be based on this negative factual evidence. 

Finally, neither the Veteran 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.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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

Entitlement to service connection for an acquired psychiatric disability is denied. 


____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs