Citation Nr: 1301945	
Decision Date: 01/17/13    Archive Date: 01/23/13

DOCKET NO.  12-25 320	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, claimed as depressive disorder and generalized anxiety disorder. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

H.J. Baucom, Associate Counsel


INTRODUCTION

The Veteran had active service from November 1950 to December 1953.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a  September 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Petersburg, Florida, which denied service connection for anxiety, depressive disorder. 
 
The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

An acquired psychiatric disability was not first manifest during service, or within a year after discharge from service, and the medical evidence of record does not show that an acquired psychiatric disability is related to any disease or injury incurred in or aggravated by service.  


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
The nexus between service and the current disability can be satisfied by competent 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).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The Veteran contends that his current acquired psychiatric disorder is due to emotional distress he experienced in service.  He identified his emotional distress as being stationed in North Africa and wanting to return to the United States.  

The Veteran also contends that when he was stationed at Benguerra Air Base in North Africa the main fuel tank was sabotaged, resulting in the area going on full alert for a couple of weeks, and that the base was locked down with everyone carrying weapons.  

Service treatment records show that upon entry and upon exit from service no psychiatric disorders, or symptoms thereof, were noted or reported.  Similarly during service there were no complaints or treatment for any mental health disorder or symptoms thereof.  Personnel records do not indicate any change in performance during service, nor has the Veteran alleged any. 

During post service VA treatment the Veteran had negative depression screenings, including as recently as December 2010, nearly fifty years after service from November 1950 to December 1953.

In August 2010 a private psychological evaluation was conducted by Dr. WA.  The Veteran denied any prior history of psychological evaluations or counseling.  He provided his military history and reported that his extension to overseas tours of duty in North Africa had created "emotional distress" (quotations in original).  The Veteran also stated that the extensions were "pretty traumatic at the time" (quotations in original) because he wanted to return to the U.S. but could not.  He also reported that the area was on lock down for a few weeks.  

Despite the Veteran's report of emotional distress in service, Dr. WA did not identify it as a source or contributory factor to his current symptomatology.  In fact, she identified his emotional distress in quotations to distinguish it as his description, not her finding.  

The Veteran himself reported that his symptoms of depression and generalized anxiety began approximately two years prior to the assessment. He described a number of existential concerns and had apparent guilt regarding separation from his wife of 48 years.  Dr. WA diagnosed depressive disorder and generalized anxiety disorder.  She noted that he described moderate symptoms of depression and anxiety in conjunction with a life-long propensity toward boredom and the need for excitement.   

Dr. WA concluded that the Veteran met the criteria for a major depressive episode, although, given the situational factors associate with his separation from his wife, they appear to represent an ongoing difficulty with adjusting to the end of his marriage, providing evidence against this claim. 

The Veteran is competent to report symptomatology that he experiences, such as feeling sad or impatient; he is not competent to diagnose himself with a disorder such as depressive disorder or anxiety.  Layno v. Brown, 6 Vet. App. 465 (1994).  Therefore his opinion as to the etiology of his current acquired psychiatric disorder is of no probative value and contradicted by the private psychologist who evaluated his condition and concluded that it was related to the end of his marriage. 

The Veteran has not alleged, and the record does not reflect, a continuity of symptomatology.  Although the Veteran described having emotional distress in service, he did not report it at the time, nor has he reported experiencing this continuously since service, which he is competent to do.  Additionally the Veteran denied a history of any psychiatric disorder until he sought treatment in 2010, many, many years after service. 

Evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  There is no evidence of continuity of symptomatology of an acquired psychiatric disorder since service.  38 C.F.R. § 3.303, See Savage v. Gober, 10 Vet. App. 488 (1997). 

The weight of the evidence is against the claim.  The only medical opinion of record found that the Veteran's current acquired psychiatric disorder was related to the end of his marriage.  There is no competent medical evidence that the Veteran's acquired psychiatric disability is related to service. 

The preponderance of the evidence is against the claim; there is no doubt to be resolved.  Service connection for an acquired psychiatric disability is not warranted.

The Duty to Assist

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).  

An October 2010 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  

The Veteran was not afforded a VA examination for his acquired psychiatric disability but none is required.  

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.  38 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).  

Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted.  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 standards 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, despite a private psychiatric evaluation, the only evidence that the Veteran's acquired psychiatric disability is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence.  Accordingly, the Board finds that referral for a VA medical examination is not warranted.  

Significantly, neither the appellant nor his or 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 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).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  
 
ORDER

Service connection for an acquired psychiatric disability is denied. 


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



Department of Veterans Affairs