Citation Nr: 1308050 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-09 040 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Washington, DC THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine that declined to reopen the Veteran's claim for a psychiatric disorder. In May 2010, the Veteran testified at a video conference hearing before a Veterans Law Judge who is no longer employed by the Board. In December 2010, the Board reopened the Veteran's claim and remanded the claim for additional development. In a December 2011 letter, the Veteran was advised that the Veterans Law Judge who conducted the May 2010 hearing is no longer employed at the Board and he was offered the opportunity to testify at a second hearing before another Veterans Law Judge. In a January 2012 statement, the Veteran's representative indicated that the Veteran desired to testify before another Veterans Law Judge. In February 2012, the Board remanded the Veteran's claim in order to schedule the requested hearing. The Veteran testified at a video conference hearing before the undersigned Acting Veterans Law Judge in June 2012. FINDING OF FACT The most probative evidence fails to show that the Veteran has a psychiatric disorder that had its onset during military service and a psychosis was not manifest to a compensable degree within one year of discharge. CONCLUSION OF LAW A psychiatric disorder was not incurred in or aggravated by active military service and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in letters dated in May 2003, October 2004, and April 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative, including at the hearing before the undersigned suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the most recent supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claim on appeal. The Board notes that the relevant VA examination report reflects that the examiner reviewed the Veteran's past medical history, documented his current medical conditions, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and with supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Consequently, the Board concludes that the medical examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the RO has substantially fulfilled the requirements of the Board's remands. Only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). The chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. The evidence must be medical unless it relates to a condition as to which, under relevant case law, lay observation is competent. 38 C.F.R. § 3.303(b) (2012). In the alternative, the chronicity provisions are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition. The evidence must be medical unless it relates to a condition as to which lay observation is competent. 38 C.F.R. § 3.303(b) (2012). Evidence of continuity of symptomatology of a psychosis from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012); see Walker v. Shinseki, ___ F.3d ___, 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 the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Certain chronic disabilities, such as a psychosis, if manifest to a degree of 10 percent or more within one year after separation from active duty, may be presumed to have been incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Lay 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 (Fed. Cir. 2007). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Additionally, competency of evidence must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). It is the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). If all the evidence is in relative equipoise, the benefit of the doubt should be resolved in the claimant's favor, and the claim should be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When at least a portion of the service records cannot be located, through no fault of the Veteran, VA has a "heightened" obligation to more fully discuss the reasons and bases for its decision and to carefully consider applying the benefit- of-the-doubt doctrine. See, e.g., O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran contends that he has a mood disorder and/or depression as a result of his active duty service. Specifically, he contends that he had an involuntary psychiatric hospitalization in service and that he has had symptoms of anxiety and depression since his active duty service. The Veteran has consistently maintained that while on active duty he was committed for a psychiatric hospitalization for three months beginning in March 1973. He indicated that he was initially treated at McDonald Army Hospital, then transferred to Portsmouth Naval Hospital, and then ultimately transferred to Valley Forge Army Hospital where he was treated for psychiatric symptoms. The Veteran's service treatment records reflect that an evaluation was requested by the Veteran's commanding officer in September 1972. The examiner's impression was that of immature personality. In September 1973, an entry indicates that the Veteran requested a consultation for depression. No psychiatric disability was diagnosed and the Veteran completed his period of active duty prior to discharge in May 1974. No other record of treatment for psychiatric symptoms was included in the records. The RO contacted the National Personnel Records Center (NPRC) in April 2002 and requested records from McDonald Army Hospital at Fort Eustis, Portsmouth Naval Hospital, and Valley Forge Army Hospital. All requests yielded negative results. The Veteran is aware that the records could not be located (this was discussed at his personal hearings) and he was afforded the opportunity to submit any records he had in his possession. VA treatment records dated from March 2001 to March 2012 reflect that the Veteran initially sought mental health treatment in April 2001. He reported depressive symptoms at that time. He was assessed with major depressive disorder and has been treated for symptoms of this disorder through March 2012. Associated with the claims file is a fully favorable decision from the Social Security Administration dated in September 2002. A disability determination and transmittal reflect that the Veteran's primary diagnosis was anxiety-related disorders and the secondary diagnosis was obesity and other hyperalimentation. The medical records associated with the SSA decision consist of VA treatment reports dated from March 2001 to August 2002 and reflect treatment for major depression. At an August 2002 VA mental disorders examination, the Veteran was assessed with chronic undifferentiated schizophrenia and polysubstance dependence in remission. The examiner noted that the Veteran's symptoms included anxiety, paranoia, and insomnia and he was noted to be treated at VA for depressive disorder. The examiner concluded that the Veteran's schizophrenia was not consistent with his treatment for depression and immature personality disorder in service and he opined that it was less likely than not that schizophrenia was related to the Veteran's active duty service. At a July 2003 VA mental disorders examination, the Veteran's claims file was reviewed and the examination consisted of a mental status examination and psychiatric testing. The Veteran reported a long history of depression and he noted his treatment for psychiatric symptoms in service. Following the clinical evaluation and review of the claims file, the examiner diagnosed the Veteran with major depressive disorder. He noted that there was only one note in the service treatment records indicating treatment for depression and he concluded that there was not enough evidence to suggest that the Veteran's current depression was related to his treatment in service. In a July 2005 letter in response to a letter from the Veteran, J.E.S., DVM, stated that although his letter jogged some memories from over three decades prior, they were "shadows, phantoms, wisps in a dense, misty fog." He recalled the Veteran was unable to work but he could not personally recall sending the Veteran to the hospital. He stated that he remembered that the Veteran was "f***ed up" but he could not recall any particulars. He alluded to beer and marijuana use but stated that he could be in error with regard to that. Associated with the claims file is a statement from B. Rines, Ph.D., dated in July 2008. Dr. Rines indicated that he met with the Veteran and reviewed both the Veteran's service treatment records and post-service medical records including records from the SSA. Dr. Rines indicated that the Veteran asserted very directly and with some detail that he had an inpatient hospitalization while in service although no records were found. Dr. Rines conducted a mental status evaluation and noted that the Veteran reported that his in-service psychiatric hospitalization had a very negative impact on his post-service years and that he experienced substantial and significant psychological problems since service. Dr. Rines indicated that VA treatment records suggest that the Veteran as significantly depressed and experienced panic attacks. Dr. Rines noted that the lack of service treatment reports of the purported hospitalization made it difficult to comment on the cause and onset of his current psychological problems but assuming the accuracy of the Veteran's statements, the Veteran clearly had some form of a significant collapse while in service. He concluded that while there are substantial lapses in the Veteran's medical records which might clarify issues regarding the onset of his psychiatric and psychological symptoms, it is nevertheless clear that the Veteran entered service as an effective young man and soon after leaving started to become clearly impaired to most adult activities which has continued to the present. The Veteran testified at a hearing before a retired Veterans Law Judge in May 2010 at which time he reported that while in service he was sent to McDonald Army Hospital by his commanding officer and treated with Thorazine. He reported that he was transferred to Portsmouth Naval Hospital. He stated that he was placed in a locked ward and treated with Stelazine. He testified that he was diagnosed with schizophrenia at that time. He reported that he was later transferred to Valley Forge Army Hospital and the entire hospitalization lasted for two or three months. The Veteran reported that he had not been treated for schizophrenia since service but he has sought treatment for depression and anxiety since service. He testified that he did not seek treatment until 2000 because he did not have insurance but he indicated that had symptoms of anxiety and depression since he left separated from service. Associated with the claims file is a statement from the Veteran's mother dated in May 2010 in which she indicated that the when the Veteran initially entered service he diligently wrote home and seemed happy and his letters were consistent with the person that he was when he entered service. She reported that sometime prior to the Veteran's separation from service, he stopped writing and stopped calling home. She indicated that the family became concerned but they were unable to get any information about the Veteran and ultimately learned of his psychiatric hospitalization from the Veteran's girlfriend at the time. She noted that the Veteran served another year after his hospital discharge and returned home a very different person than when he entered service. She indicated that he entered service as an active and outgoing person and returned home withdrawn, unresponsive, and depressed. At a hearing before the undersigned Acting Veterans Law Judge in June 2012, the Veteran testified that he did not have psychological problems when he entered service. He indicated that while in service he initially went to the hospital voluntarily but was ultimately held involuntarily for psychiatric symptoms for a period of two months. He testified that he has had psychiatric symptoms since service including depression, nightmares, anxiety, panic attacks, and trouble with his memory. He indicated that he did not seek treatment until 2000 because he did not have insurance and he ultimately sought treatment at VA. The Board observes that neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Considering all the evidence of record, the Board finds that service connection for a psychiatric disorder is not warranted. The Veteran's service treatment records do not show that he was diagnosed with a psychiatric disability in service. Consultation showed that he was found to have an immature personality disorder and he continued to complete his period of active duty. His assertions of an involuntary commitment have not been corroborated by medical records. Moreover, even assuming that it is true that he was hospitalized for psychiatric impairment in service, he subsequently served for more than a year after the reported hospitalization and no psychiatric disorders were found upon discharge examination in 1974. The Veteran's statements and testimony in support of his claim allege a continuity of symptoms since active service - however, the most probative evidence does not show that the Veteran has a psychosis. He has been diagnosed with major depressive disorder - which is not included in the list of chronic diseases provided in 38 C.F.R. § 3.309(a). Hence, service connection on the basis of continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) may not be established. See Walker, supra. The Board finds that he is competent to give evidence about what he experienced. For example, he is competent to discuss his current symptoms of depression. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's available service treatment reports reflect that he sought a consultation for depression but a depressive disorder was not clinically diagnosed, and his psychiatric evaluation upon discharge was within normal limits. The Board observes that the Veteran is competent to provide testimony as to having experienced depression during service as well as after his discharge. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, he is not competent to diagnose himself with a psychiatric disorder, or to attribute his complaints to a specific cause. Id. Simply stated, the Veteran's opinion regarding the presence or etiology of a psychiatric disability in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence. Major depressive disorder, schizophrenia, and other psychiatric disorders are complex diseases that requires specialized training and testing for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Hence, the Veteran's statements therein cannot be accepted as competent evidence sufficient to establish service connection. See Jandreau, supra. Similarly, although his mother recalled that the Veteran was changed after his period of active duty, she is also not competent to diagnose the Veteran with a psychiatric impairment and in fact there are numerous reasons why a person would be different after a period of service, including due to possible alcohol and drug abuse which is documented in the claims file. (See for example, an April 2001 private medical record denoting that the Veteran smoked marijuana every day and had an alcohol dependence.) Moreover, there are no medical records documenting complaints of depression until 2001, more than 20 years after discharge. In this regard, the Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lack of clinical evidence reflecting treatment pertaining to depression until many years (more than 20) after his discharge from active service is against his claim for service connection. While the Board acknowledges that the absence of any corroborating medical evidence supporting his assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining the weight of such evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The Board has accorded the Veteran's statements limited probative value based on his interest in the outcome of his claim. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Furthermore, upon VA examination in July 2003, the examiner specifically concluded that there was insufficient evidence to support a finding that the Veteran's currently manifest major depressive disorder had its onset in or was otherwise related to his military service. The Board has accorded this opinion significant probative value because it was based on a thorough clinical evaluation and a full review of the record. See Winsett, Bloom, supra. The Board acknowledges the statements the Veteran has submitted in support of this claim. For example Dr. Rines has concluded that the Veteran suffered a psychological collapse in service and been impaired since that time. However, the Board concludes that this statements lacks significant probative value because it was based solely on statements from the Veteran and did not involve a review of the record. For example, the limited psychiatric findings in service as well as the Veteran's ability to complete more than a full year of additional duty after the end of the claimed period of hospitalization are contrary to his conclusion of a total collapse in service and impairment since that time. Additionally, Dr. Rines does not comment on the Veteran's alcohol and drug abuse. Accordingly, the statement is based on an inaccurate factual history - a history that is not corroborated by the contemporaneous clinical records in the file and it has limited probative weight. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.). In sum, the Board finds that preponderance of the evidence is against the claim. Consequently, the Board concludes that service connection for a psychiatric disorder is not warranted. See Gilbert, supra. ORDER Entitlement to service connection for a psychiatric disorder is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs