Citation Nr: 1304666 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-43 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depression, anxiety, and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to October 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office. Claims for service connection for a specific psychiatric disability may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal. In a November 1997 claim, the Veteran sought service connection for residuals of a left ankle fracture. No action was ever taken on that claim. The issue of entitlement to service connection for residuals of a left ankle fracture has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran did not suffer from a psychiatric disorder during his active service, and there is no competent evidence relating his current psychiatric disorders to his active service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A February 2009 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1). 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 claim was subsequently readjudicated, most recently in an April 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, was obtained in April 2010. 38 C.F.R. § 3.159 (c) (2). The Veteran did not undergo a VA examination, as no such examination is required. The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2). If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). There is no indication of record that the Veteran's current psychiatric disabilities are related to his active service. Absent evidence of such a nexus, no examination is necessary. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 556 U.S. 129 (2009). II. Service Connection for a Psychiatric Disorder 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. § 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). Service connection may also be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson v. Shinkseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 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, 492 F.3d at 1377. 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 to the claimant. The Veteran is currently diagnosed as suffering from a psychiatric disorder. VA treatment records show that he has been diagnosed as suffering from alcohol and cocaine dependence and major depressive disorder. A July 2009 psychiatric evaluation performed in conjunction with his Social Security claim diagnosed him as suffering from polysubstance abuse and depressive disorder NOS. There is no evidence that the Veteran suffered from these or any other psychiatric disorders during his active service. A review of his service treatment records shows no treatment for or diagnosis of any psychiatric disorder during his active service. There is also no competent evidence that the Veteran's current psychiatric disorders are related to his active service. None of the medical records suggest that there is a link between his present condition and his active service. A December 2008 VA psychiatric admission assessment noted that the Veteran was hospitalized for depressive symptoms after a motor vehicle accident which caused severe injuries and chronic pain. Neither this assessment nor any of the other medical evidence indicates that the Veteran's current psychiatric disorders are related to his active service. The Veteran contends that his psychiatric conditions are related to service. In a February 2009 letter, the Veteran stated that his depression and anxiety are due to racial abuse he suffered during his active service. He also stated that his superiors put pressure on him to be better than his white counterparts, and that he was afraid to leave the ship while in port after a fellow sailor was killed in 1977. In a May 2010 letter, the Veteran stated that, during his active service, he was placed in solitary confinement and given only bread and water for three days. He stated that while at sea, numerous men died after going overboard, pilots died in crashes, and there were many racial incidents. In his October 2010 substantive appeal, the Veteran again stated that he was afraid to leave the ship while in port after a petty officer was shot on leave and because of racial confrontations in Japan. The Veteran is competent to describe the circumstances of his service and the symptoms that he felt during that period. He is not, however, competent to provide an opinion regarding the etiology of his current psychiatric disorders. Providing such an etiology requires medical knowledge which the Veteran does not have, and such an opinion is not susceptible to lay observation. See Jandreau, 492 F.3d at 1377. His statements thus cannot be accepted as evidence of a nexus between his current conditions and his active service. Service connection is not warranted on a continuity of symptomatology basis either. Though the Veteran contends that he has suffered from anxiety and depression since his active service, neither condition was noted during his active service, and the earliest evidence of his receiving treatment for his disorders comes in 1990, some 10 years after his separation. Finally, the Veteran also contends that he suffers from PTSD that is related to his active service. Service connection for PTSD requires evidence that the Veteran is currently diagnosed as suffering from this condition; there is no such evidence here. 38 C.F.R. § 3.304(f). The only psychiatric conditions that the Veteran has been diagnosed as having are those listed above; at no time has any treatment provider diagnosed PTSD. Absent evidence that he suffers from PTSD, service connection for this condition is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("[I]n the absence of proof of a present disability, there can be no valid claim."). The preponderance of the evidence is against the claim for service connection for a psychiatric disorder; there is no doubt to be resolved; and service connection for a psychiatric disorder is not warranted. ORDER Service connection for a psychiatric disorder, to include depression, anxiety, and post-traumatic stress disorder (PTSD), is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs