Citation Nr: 1302135	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  07-10 360	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel

INTRODUCTION

The Veteran had active service from July 1984 to October 1984 and from August 1987 to January 1988.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Atlanta, Georgia.  This case was previously before the Board in December 2010 and was remanded for additional development.  

In correspondence received in September 2008 the Veteran indicated that he longer desired a Board hearing on this matter.


FINDING OF FACT

An acquired psychiatric disorder, including schizophrenia, was not shown in service or within a year of discharge from service, and neither competent medical evidence, nor competent and credible lay evidence, establishes a nexus or link between schizophrenia and the Veteran's active military service.


CONCLUSION OF LAW

An acquired psychiatric disorder, including schizophrenia, was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

A March 1998 RO decision denied the Veteran's claim of service connection for schizophrenia.  Generally, new and material evidence would be required to reopen this claim.  38 U.S.C.A. § 5108.  Under the provisions of 38 C.F.R. § 3.156(c), however, when VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence.  Evidence added to the record since the March 1998 RO decision includes the Veteran's service treatment and personnel records.  As these records were not of record at the time of the March 1998 RO denial, and as the service treatment and personnel records are relevant to the matter before the Board, VA must therefore reconsider this issue, and the Board has recharacterized the issue as styled on the title page.

VCAA

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA applies in the instant case.

Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 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; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

By correspondence dated in April 2002, June 2002, and March 2005 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the Veteran to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence.  In the January 2012 supplemental statement of the case the Veteran received notice regarding the assignment of a disability rating and effective date in the event of an award of VA benefits.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Duty to Assist

The Veteran's service treatment and service personnel records are associated with the claims file, as are VA and private medical records.  In correspondence dated in February 2011 the Social Security Administration (SSA) indicated that they had no medical records pertaining to the Veteran; April 2011 RO correspondence informed the Veteran of the unavailability of the SSA records.
The Veteran was not afforded a VA examination with respect to his claim for service connection for schizophrenia.  Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In this case, an examination is not needed because the Veteran's service treatment records from both periods of service are entirely negative for any indication of any mental disorder.  Further, while the Veteran has asserted that he was diagnosed with schizophrenia during service, he specifically denied that he had had any such problems at the time of his separation from service in October 1984 and December 1987.  Moreover, there is no question that he is currently diagnosed with schizophrenia, but for reasons that will be more fully discussed on the merits below, there is no indication in the record of a causal connection between his diagnosis and the Veteran's periods of service or any incident therein.  See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service).  Accordingly, it is not necessary to obtain a medical examination or a medical opinion in order to decide this claim.  38 C.F.R. § 3.159(c)(4)(i); Duenas v. Prinicipi, 18 Vet. App. 512, 517 (2004).
The Board finds that there has been substantial compliance with its December 2010 remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.
Laws and regulations

Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may be granted 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).  Service connection for a psychosis may be presumed, subject to rebuttal, if manifest to a compensable degree within the year after active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309.

The Veteran asserts that his schizophrenia is related to his military service.  He has provided little in the way of specific argument in this regard.

The Veteran's service treatment records are negative for any recorded evidence of complaints, treatment, or diagnoses of any acquired psychiatric disorder.  The Veteran's service separation examination reports indicate that the Veteran's psychiatric system was clinically evaluated as normal; the Veteran specifically denied that he had any depression or nervous trouble of any sort on the corresponding Medical History Reports.

While the Veteran has asserted (in an August 2004 VA record) that he was diagnosed with schizophrenia in 1991 during service, and further contended that he had been hearing voices since he was 17, the first diagnosis of schizophrenia (or of any psychiatric disorder) of record is contained in a February 1997 private medical record indicating that the Veteran was diagnosed with schizophrenia and polysubstance abuse.  In his May 1997 claim for compensation the Veteran indicated that he had been treated for schizophrenia only since February 1997.  Psychiatric records from the DeKalb Medical Center contain clinical records related to his psychiatric disorders in 1997, 2000, and 2001, but none of these records relate any psychiatric disorder to service.  The Board observes that the Veteran has had no military service since January 1988.

VA records such as an August 2004 treatment record have noted a current diagnosis of schizoaffective disorder.

The Board observes that an acquired psychiatric disorder, including schizophrenia, was not demonstrated during active service or within the first year of discharge from such service.  In fact, schizophrenia was not shown until many years following service.  Significantly, no competent medical opinion is of record that has even suggested that schizophrenia was present during or caused by the Veteran's military service.  

The Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge.  The Veteran, however, is not competent to say that any symptoms he may have experienced in service were of a chronic nature to which schizophrenia may be attributed.  The Veteran has not shown that he has the medical training and expertise to provide a complex medical opinion as to the etiology of his psychiatric disability.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  As such, the Veteran's opinion is insufficient to provide the requisite nexus between his schizophrenia and his military service.

In this case, the Board finds that any of the Veteran's assertions as to continuity of symptomatology of schizophrenia since service are less than credible.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran).  The Veteran specifically denied that he had psychiatric trouble at the time of his separation from service in both October 1984 and December 1987.  Further, the Veteran made no mention of his military service at the time of his initial psychiatric hospitalization and treatment in February and March 1997.  Only once the Veteran began seeking VA disability compensation did he begin to relate the onset of his schizophrenia to his military service.  As such, the Board finds that the Veteran's statements are simply not sufficiently credible to establish that his schizophrenia began in service and continued to the present.

The Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence weighs against this claim, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Service connection for an acquired psychiatric disorder, including schizophrenia, is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs