Citation Nr: 1304798 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-31 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1945 to February 1947. A November 1951 rating action denied service connection for a psychiatric disorder. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont continued the denial of service connection for a psychiatric disorder. In a letter dated approximately one-and-a-half weeks later in the same month, the RO in Detroit, Michigan notified the Veteran of that determination. [Due to the location of the Veteran's residence, jurisdiction of his appeal remains with the Detroit RO.] The Veteran was scheduled to testify at a hearing before a Veterans Law Judge in August 2010, but failed to report. Nevertheless, the Board concludes that its duty to assist the Veteran has been met in this regard. 38 C.F.R. § 20.700 (2012). In January 2011, the Board remanded the issue of whether new and material evidence had been received sufficient to reopen the previously denied claim for service connection for a psychiatric disorder. The purpose of the remand of that claim was to accord the agency of original jurisdiction (AOJ) the opportunity to issue to the Veteran a Veterans Claims Assistance Act of 2000 (VCAA) notification letter for the new and material issue on appeal. This letter was provided to the Veteran several weeks later in January 2011. Upon review of the evidence of record in June 2011, the Board determined that new and material evidence sufficient to reopen the previously denied claim for service connection for a psychiatric disorder had indeed been received. Accordingly, the Board granted that aspect of the appeal. In addition, the Board remanded the de novo issue of entitlement to service connection for a psychiatric disorder to accord the AOJ an opportunity to furnish the Veteran with a VCAA-compliant notice letter pertaining to the de novo claim for service connection for a psychiatric disorder and with an appropriate VA examination to determine the nature and etiology of his psychiatric disability. The VCAA letter was furnished to the Veteran in July 2011. The Veteran failed to report to the VA psychiatric examination scheduled later in 2011. The supplemental statement of the case (SSOC) issued in April 2012 referenced VA medical records that were not contained in either the Veteran's physical VA claims folder or his Virtual VA claims file. Accordingly, a third remand was necessary (in June 2012) to obtain these additional reports. Available VA medical records were associated with the Veteran's physical VA claims folder. After a readjudication (but denial) of the claim for service connection for a psychiatric disorder in December 2012, the Veteran's appeal was returned to the Board for further appellate review. This discussion reflects substantial compliance with the actions requested by the Board in these remands. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board may proceed with a final adjudication of the Veteran's claim for service connection for a psychiatric disorder. 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 A psychiatric disorder was not shown in service or for many years thereafter, and is unrelated to active duty service. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And To Assist As provided for by the VCAA, 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, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These 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 v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2011 that fully addressed all notice elements. The letter informed him of what evidence was required to substantiate the service connection claim remaining on appeal and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date, if service connection for the claimed disability were granted. The timing defect of the July 2011 correspondence was cured by the AOJ's subsequent readjudication of the claim, and issuance of an SSOC, most recently in December 2012. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In any event, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011). After a careful review of the file, the Board finds that all necessary development has been accomplished and that therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted treatment records from a private facility. In addition, pursuant to the Board's June 2011 Remand, the Veteran was scheduled for a VA examination in the following month. However, he failed to report. The AOJ was unable to reach the Veteran by telephone. There is also no evidence on file which indicates that the Veteran was not provided timely notice to report for this evaluation. In such cases, the Board may presume that he was properly sent notice of this examination absent any assertion by the Veteran that he was not notified. Kyhn v. Shinseki, 24 Vet. App. 228 (2011). The Board also notes that the April 2012 supplemental statement of the case (SSOC) referenced the Veteran's failure to report for this examination. Id. As such, it may be reasonably concluded that the Veteran was notified of his examination and of his obligation to participate in it. Thus, the Board finds that VA fulfilled its duty to assist in its attempt to afford the Veteran a VA examination, and, in the absence of a showing of good cause as to why he did not appear, the claim should instead be adjudicated based on the available evidence of record. 38 C.F.R. § 3.655 (2012); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (which stipulates that the duty to assist is not always a "one-way street" and that a veteran may not "passively wait" for assistance). Hence, no further notice or assistance 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). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002). Generally, evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (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. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection will also be presumed for certain chronic diseases, including psychoses, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). Finally, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran claims entitlement to service connection for an acquired psychiatric disorder. However, based on the evidence of record, the Board finds that service connection is not warranted. First, the service treatment records do not reflect symptoms of a diagnosable psychiatric disorder while in service, nor did any treating physician or psychiatrist observe such a disorder. In this regard, the Board acknowledges that, according to a March 1946 service treatment record, the Veteran admitted that he was "nervous around officers." However, this single comment did not lead the evaluating physician to believe that the Veteran had any sort of psychiatric disorder. Significantly, the Veteran's separation physical examination in February 1947 noted that he was "normal" psychologically. Therefore, no symptoms or diagnoses related to a psychiatric disorder were observed in service. The post-service treatment records indicate that the Veteran submitted a claim for benefits in April 1948 related to symptoms of "weakness" and occasional blackouts. At a neuropsychiatric examination in September 1948, he complained that he became "nervous and shaky." However, no diagnosable psychiatric disorder was identified. In fact, he appeared "pleasant and cooperative" and had a neat appearance, clear and relevant speech, and good memory. As a result, the VA examiner's diagnosis was limited to a "generalized allergic state," rather than any psychiatric disorder. In fact, the first indication of a diagnosed acquired psychiatric disorder was not until a treatment note in October 1951. On that occasion, the treating physician noted that the Veteran was first seen in 1949, where he appeared "very nervous." However, according to this treatment note, it was not until September 1951 that the Veteran was diagnosed with an "anxiety state" and angioneurotic edema. The Board notes that this diagnosis in 1951 is approximately four years after he left active duty. Therefore, continuous symptoms since active duty have not been shown based on the clinical evidence of record. Also, although the evidence indicates that the Veteran was eventually hospitalized in 1968 with a diagnosis of schizophrenia, there is no evidence to indicate that he was diagnosed with this or any other type of psychosis within one year of his leaving active duty in 1947. Therefore, service connection is also not warranted on a presumptive basis under 38 C.F.R. § 3.307 and 3.309. The Board acknowledges that subsequent medical records reflect continued treatment for, and evaluation of, a psychiatric condition variously diagnosed as a schizophrenic reaction, chronic undifferentiated type; nervousness; a generalized anxiety disorder; and neurotic depression. Additional evidence of record includes the Veteran's statements asserting continuity of psychiatric symptomatology. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose a disorder such as an acquired psychiatric disorder, as this disability is not a disorder that may be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Board determines that any statements asserting a continuity of symptoms since active service, while competent, are nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). In so concluding, the Board again notes that no psychiatric disorder was observed at the time of his separation physical examination in March 1946. Moreover, the Veteran underwent a VA examination in September 1948, where no psychiatric disorder was identified. The fact that he was examined on these two occasions, where no psychiatric disorder was identified, contradicts his assertions of psychiatric symptoms since service. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's psychiatric disorder [variously characterized as a schizophrenic reaction, chronic undifferentiated type; nervousness; a generalized anxiety disorder; and neurotic depression] to active duty, despite his contentions to the contrary. Specifically, none of the competent evidence establishes a relationship between this variously diagnosed psychiatric disorder and the Veteran's active duty, nor has any treating professional suggested such a conclusion. Therefore, the weight of the clinical evidence does not indicate that his acquired psychiatric disorder is attributable to active duty. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disorder. See Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's acquired psychiatric disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Service connection for a psychiatric disorder is denied. ______________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs