Citation Nr: 1307232 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-37 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service in the United States Army from November 1978 to March 1979 and in the United States Air Force from April 1979 to November 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board has rephrased the Veteran's claim for an anxiety disorder as a claim for entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from May 2011 to April 2012 that are not associated with the Veteran's paper claims file. However, the July 2012 Supplemental Statement of the Case (SSOC) specifically notes that these records were reviewed by the RO. Therefore the Board's consideration of this evidence does not result in prejudice to the Veteran. VA treatment records from May 2012 to August 2012 were subsequently added to the Veteran's electronic claims file and the RO did not review them in an SSOC. Among these records was an August 2012 mental health treatment report. The record does not contain a waiver of RO consideration for this pertinent piece of evidence. 38 C.F.R. § 20.1304(c) (2012). However, the Veteran is not prejudiced in the Board's adjudication of this claim. The August 2012 report documents treatment of the Veteran for reported physical and emotional issues; notably, however, there is no diagnosis of a psychiatric disorder contained in the records. It is noted in such records that the Veteran was seeking therapy to discuss various things including health, loss of short term memory, worry about his separation from his children and the fact that he was being accused by his ex-wife of domestic abuse; he stated the judge ordered him to go for counseling for battery. A depression screening was negative. As noted below, the Board finds no current diagnosis of an acquired psychiatric disorder, and finds these additional treatment records to be essentially duplicative of those already of record. Thus, there is no prejudice to the Veteran to proceed without initial RO review of this evidence. FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have an acquired psychiatric disorder due to any incident of his active duty service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated in service and a psychosis may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in August 2009. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations from June 2010 and July 2010. The examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiners also provided rationales for their opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he has an acquired psychiatric disorder as a result of a July 1981 injury he sustained when a tire exploded near him. Because there is no competent medical or lay evidence of a psychiatric disorder, his claim will be denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for chronic diseases listed at 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may also 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As a preliminary matter, the nexus requirement of a service connection claim may be satisfied by evidence that a chronic disease subject to presumptive service connection manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, the evidence does not show that the Veteran has a psychosis that manifested within one year of his separation from service in November 1981. Further, the record does not show that he has ever had a psychosis. Presumptive service connection is not warranted. Id. The evidence of record does not show that the Veteran has an acquired psychiatric disorder. Therefore, the first element of a service connection claim is not met. Hickson, 12 Vet. App. at 253. At his April 1979 entrance examination, his psychiatric evaluation was normal and the Veteran denied psychiatric symptoms in his report of medical history. In July 1981 a tire exploded near him and he was treated for ear and eye trauma. In August 1981 he was referred for a psychiatric evaluation because of a history of violence and irresponsibility. Upon examination, he was articulate and displayed no signs of anxiety. He was fully oriented with no evidence of psychosis, neurosis, organic brain syndrome, or a thought disorder. The Veteran felt that most of the allegations against him were valid but "a bit elaborated upon." He enjoyed his job and reported getting along with "everyone." He accepted the fact that he engaged in behaviors that were being addressed but he tended to minimize them and implied that other members of his unit contributed to his behavior. The examiner concluded that there was "no psychological/psychiatric reason for his behavior...[.]" The examiner stated that there was no psychiatric disease found and the Veteran did not have a mental defect, emotional illness, or psychiatric disorder. His October 1981 separation examination showed a normal psychiatric evaluation and he denied trouble sleeping, excessive worry, loss of memory, and nervous trouble in his report of medical history. The Veteran underwent a VA mental disorders examination in June 2010. The examiner noted the Veteran's history of a traumatic brain injury (TBI) and that he took Valium for sleep disturbance. The Veteran denied undergoing treatment for a psychiatric condition in service and had not undergone post-service outpatient treatment. He denied a history of anxiety and depressive symptoms. He reported that he had "normal everyday stressors that everyone else does," and that he tried to maintain a positive attitude and stated that he had no reason to be overly stressed. He reported that slowly over time, he had become increasingly forgetful and absentminded. The examiner noted that the Veteran scored in the normal range in the Montreal Cognitive Assessment screening tool and that he displayed no cognitive impairments. When asked about the nature of his memory problems, the Veteran replied that compared to 29 years ago, he felt that they were more severe. The examiner stated that had the Veteran sustained a TBI in 1981, he would have experienced the most cognitive problems shortly after leaving service. However, the Veteran stated that he did not have problems at that time. Instead, the progression had been over the previous five to ten years. The examiner explained that this time frame was when the Veteran had been using the most narcotic pain medications. The Veteran stated that over the previous five to ten years, there had been no remission of symptoms. The examiner again emphasized that the Veteran denied any depressive or anxiety symptomatology. Upon examination, the Veteran was not well groomed, but the examiner explained that he worked as a cement truck driver and had reported to the examination directly after work. There was no abnormal motor activity and his facial expressions were normal and responsive. His speech was normal and his responses were logical and relevant. There was no evidence of psychosis and the Veteran denied experiencing audiovisual hallucinations. His attention and concentration during the examination were good. He denied suicidal and homicidal ideation. His mood was described as positive. His range of affect was full and appropriate. The examiner noted some memory deficits when the Veteran was asked to recall specific dates. The Veteran stated that he usually used memory strategies such as writing information down to compensate for his forgetfulness. The examiner concluded that the Veteran did not have "any overall mental health diagnosis." The examiner explained that the Veteran's memory difficulties began five to ten years before the examination, and that he did not report experiencing them during the 1980s or 1990s, which would have been more consistent with a TBI. The examiner did not diagnose the Veteran with any type of psychiatric disorder. The opinion of the VA examiner provides probative evidence against the Veteran's claim. The Veteran underwent a VA TBI examination in July 2010. Although this examination was not specifically for psychiatric disorder, the examiner recorded some relevant information. The Veteran reported sleep disturbance but the examiner found that he obtained an adequate amount of sleep. The Veteran denied depressive feelings and malaise. He also denied problems with attention, concentration, speech, and executive functions. He stated that at times, he was irritable and intermittently felt restless. The examiner found that this was not chronic. The Veteran reported memory impairment such as forgetfulness and problems recalling specific instructions at work. The examiner noted that this did not appear to interfere with the Veteran's ability to perform his job. Psychiatric symptoms were not noted at the examination. The examiner concluded that the Veteran had short lasting cranial pain with relatively infrequent, intense retroocular discomfort. His symptoms were not typical for headaches caused by a TBI. The examiner concluded that, "[i]t cannot be ruled out with absolute certainty that [he] had not suffered a minor concussive injury due to the exploding tire." But, the examiner found that the injury must have been the result of the air blast of the explosion, rather than the impact of any solid objects. In order for solid tire materials to cause a concussion, the examiner explained that their kinetic energy would have to be much higher than was evidenced by the Veteran's "relatively minor ocular contusion." The examiner concluded that the Veteran did not have neurological residuals of his in-service injury. The examination report provides probative evidence against the Veteran's claim because it shows a denial of symptoms such as depression and no psychiatric abnormalities were noted during the evaluation. The Veteran's VA treatment records do not show complaints of psychiatric symptoms or treatment for a psychiatric disorder. In May 2011 a depression screen was negative. In July 2011 he reported experiencing insomnia due to pain and was referred to a pain management clinic. The Veteran's private medical records do not provide evidence of a psychiatric disorder. For the period from February 2007 to November 2009, the Veteran was treated by Dr. R. A. for back pain on an almost monthly basis. At his monthly appointments from February 2007 to December 2007, Dr. R. A. stated that the Veteran did not have depression, anxiety, sleep disturbances, insomnia, or sleep apnea. At his monthly appointments from January 2008 to November 2008 and from January 2009 to November 2009, Dr. R. A. stated that the Veteran did not have anxiety, depression, insomnia, or hallucinations. The records from Dr. R. A. provide probative evidence against the Veteran's claim because they show that he denied psychiatric symptoms, including anxiety, on a consistent basis. In November 2009, the Veteran stated that he believed he had anxiety as a result of his in-service head trauma because he had to "gain [his] balance when [he] wake[s] up." He reported being unable to sleep, having a great deal of physical pain, and using medication for pain and sleep. He stated that he procrastinated and was forgetful, and that this had a negative impact on his relationship with his family. The Veteran is competent to report observable symptoms such as anxiety and forgetfulness. Layno v. Brown, 6 Vet. App. 465 (1994). Further, his description of how he felt is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In June 2010, the Veteran was specifically examined to determine whether he had any type of psychiatric disability and none were diagnosed. The Veteran's lay assertion has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's lay assertion is assigned less probative weight than the findings of the June 2010 VA examiner, who reviewed the record and interviewed and examined the Veteran. His statement is further outweighed by the records from Dr. R. A. which show that he consistently denied experiencing depression and anxiety. In determining whether service connection is warranted, VA is responsible for considering both the positive and negative evidence. If the evidence, as a whole, is supportive or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is negative, then service connection must be denied. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). See also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). In this case, the evidence is not in relative equipoise. The Veteran's lay assertion is outweighed by the findings of the June 2010 VA examiner, who stated that the Veteran did not have a psychiatric disorder. Further, the July 2010 VA examiner noted that the Veteran denied depression and malaise, and that his occasional irritability and feelings of restlessness were not chronic. Lastly, the monthly appointment records from Dr. R. A. show that the Veteran denied depression, anxiety, and hallucinations. The preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder; the first element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253. The provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs