Citation Nr: 1304459 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-11 398 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUE Entitlement to service connection for psychiatric disability other than posttraumatic stress disorder (PTSD), diagnosed as major depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from May 1962 to May 1966. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied service connection for PTSD. In December 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in February 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010. In April 2011, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In June 2011, the Board remanded the Veteran's appeal to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in an August 2011 supplemental SOC (SSOC)) and returned the matter on appeal to the Board for further consideration. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. There is no objective evidence of any in-service psychiatric symptoms, and the Veteran has not asserted any continuity of psychiatric symptoms since service. 3. The Veteran was diagnosed with psychiatric disability other than PTSD, to include major depressive disorder, many years post service, and there is no competent evidence or opinion that there exists a medical nexus between any such disability and the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for psychiatric disability other than PTSD are not met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. As noted, the Board sought further development of the claim in June 2011. In June 2011, the Board instructed the RO/AMC to send a letter to the Veteran and his representative requesting information and any necessary authorizations to obtain any evidence pertinent to the claim on appeal. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In a June 2011 post-rating letter, the RO/AMC provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA; this letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the June 2011 letter, and opportunity for the Veteran to respond, the August 2011 SSOC reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect). Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of service treatment and personnel records and VA treatment records. Also of record and considered in connection with the appeal is the transcript of the Veteran's April 2011 Board hearing, along with various written statements provided by the Veteran and his representative. The Board also finds that no additional RO action to further develop the record in connection with the claim for psychiatric disability other than PTSD is warranted. The Board acknowledges that the Veteran has not been afforded a VA examination in connection with his claim for service connection on appeal. However, as will be discussed below, given the facts pertinent to the claim, no such examination or medical opinion is required. In a May 2012 Informal Hearing Presentation, the Veteran's representative has argued that further development was necessary to verify the Veteran's in-service stressors, and if verified, to afford the Veteran a VA examination. Nevertheless, in the June 2011 decision, the Board determined that the Veteran's alleged stressor of witnessing the beating and killing of a civilian girl by Korean police, with no more specific details regarding the identity of the girl or any record of the event, did not provide VA with the minimum requirement of a stressor that could be documented for VA to attempt to verify the stressor through further development. No additional evidence has been provided since the June 2011 Board decision. Accordingly, there is no need to remand for further development on this matter as the Board has already determined that the Veteran's in-service stressor could not be verified and, in turn, denied the Veteran's claim for PTSD. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter remaining on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In adjudicating a claim for VA benefits, 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(b) (West 2002); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). After a full review of the record, including the medical evidence, and statements by the Veteran, the Board finds that service connection for psychiatric disability other than PTSD is not warranted. The Veteran's service treatment records are negative for any signs, symptoms, or diagnoses of a psychiatric disorder. When the Veteran was examined for service separation in April 1966, he specifically denied any history of depression or excessive worry, frequent trouble sleeping, or nervous trouble of any sort. The examiner found the Veteran normal from a psychiatric standpoint. Post service treatment records showed that in April 2007, the Veteran sought initial psychiatric treatment at the VA and indicated that he was having nightmares related to his military experience. He reported the incident discussed above that allegedly occurred while stationed in Korea where he witnessed the beating and killing of a civilian girl by Korean police. The assessment observed that the Veteran was describing potential adjustment disorder secondary to retirement or history of PTSD symptoms related to experience in military. Follow up VA treatment records continued to show a diagnosis of major depressive disorder; rule out PTSD. An April 2008 treatment record noted that his nightmares and disturbing thoughts had been significant within the last eight months and that he may have previously been busy enough with his employment to distract him. In July 2009, the Veteran was also diagnosed with PTSD. In April 2008, the Veteran filed a claim for service connection for PTSD. Importantly, in an April 2008 statement, the Veteran reported that his symptoms began bothering him about 10 to 12 months prior. In an attached stressor statement, he reported the same incident involving the civilian Korean girl. Follow up statements, including the April 2011 Board hearing testimony, reiterated the Veteran's claim that his PTSD was related to his incident. The above-cited medical evidence of record clearly establishes that the Veteran has been diagnosed with psychiatric disability other than PTSD, to include major depressive disorder. However, the record simply fails to establish that any such disability is related to service. As indicated above, there is nothing in the service treatment records or report of discharge examination to support a finding of psychiatric disability in service. Moreover, the first actual documented diagnosis of acquired psychiatric disability - major depressive disorder - does not appear in the medical evidence until 2007, approximately 41 years after the Veteran's discharge from service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the Board notes that none of the medical records include any competent and credible medical comment or opinion which demonstrates that a currently shown psychiatric disability other than PTSD had its onset in or is otherwise medically related to service. Moreover, the Veteran has not provided any lay evidence of pertinent symptomatology since service. His statements and hearing testimony all indicate that his symptoms began approximately in late summer, early fall in 2007, again many years after his discharge from service. Further, in the June 2011 decision, the Board previously determined that the Veteran's alleged in-service stressor could not be verified and denied the Veteran's claim for PTSD. Because the occurrence of this incident has not been corroborated, it cannot serve as a credible in-service "injury" for service connection purposes. With regard to VA's duty to assist veterans by obtaining a medical examination and/or opinion, the Board finds that the Veteran's claim does not meet the fundamental requirements necessary to obtain such opinion. Generally, VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4)(i) (202); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran has demonstrated that he has a current psychiatric disability, but there is nothing to indicate that this disability may be associated with an event, injury, or disease in service. As previously discussed, the Veteran himself does not contend that he experienced any symptoms related to these disabilities during service or for many decades after service. Additionally, there is no medical or other persuasive evidence which suggests the Veteran's psychiatric disability is related to service. Moreover, in the absence of evidence of an in-service disease or injury, a remand of this case for an examination or to obtain an opinion as to the etiology of the Veteran's claimed psychiatric disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's claimed disability and his military service would necessarily be based solely on the Veteran's current uncorroborated assertions regarding what occurred in service advanced in support of this claim. The United States Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). Simply stated, referral of this claim for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See, e.g., Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); 38 U.S.C.A. § 5103(a)(2) (West 2002 & Supp. 2012). Therefore, VA has no obligation to obtain any medical opinion(s) commenting upon the etiology of the Veteran's psychiatric disability. See 38 U.S.C.A. § 5103A(d); 3.159(c)(4); McLendon, 20 Vet. App. at 83. Finally, the Board notes that, as regards to any direct assertions by the Veteran that there exists a medical nexus between any diagnosed psychiatric disability other than PTSD and service, such assertions provide no basis for allowance of the claim. The matter of medical etiology of current psychiatric disability is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the appellant is not shown to be other than a layperson without appropriate medical training and expertise, he simply is not competent to render a probative (persuasive) opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for psychiatric disability other than PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, credible, and persuasive evidence supports the claim, that doctrine is not applicable. See 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 psychiatric disability other than PTSD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs