Citation Nr: 1308735	
Decision Date: 03/14/13    Archive Date: 03/25/13

DOCKET NO.  06-21 876	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a mental disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel







INTRODUCTION

The Veteran served on active duty from October 1978 to October 1981. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

This claim has been previously remanded by the Board in July 2009, March 2011, September 2011, and September 2012 in order to accomplish further evidentiary and procedural development. 

The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they include VA treatment records from 2008 to 2011; these records are not utilized in the Board's analysis of the issue on appeal as they do not pertain to the question of etiology of any diagnosed mental disorders. 

Please note 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

Any mental disorder present during the pendency of this claim is not etiologically related to the Veteran's active service.


CONCLUSION OF LAW

The criteria for service connection for mental disorder are not met.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a)  (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004).  

The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The Veteran was provided notice required under VCAA in April 2005, and later in April 2006, to include notice as required under Dingess.  Moreover, after the letters were provided, the Veteran was afforded the opportunity to submit additional evidence and he did so.  Furthermore, the claim was thereafter readjudicated.  Therefore, the purpose of the VCAA notice was fulfilled. 

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  VA has also satisfied its duty to assist the Veteran under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.  Available service treatment records and pertinent post-service records have been associated with the claim folder.  

The Board notes that the Veteran failed to report for a VA examination scheduled in October 2012 in compliance with the September 2012 Board remand, despite being advised of the examination.  The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  It is the responsibility of veterans to cooperate with VA.  See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992).  

Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim.  The Board also is unaware of any such outstanding evidence.  Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation.  

Accordingly, the Board will address the merits of the claim.

Legal Criteria and Analysis 

Service connection may be granted for disability or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). 

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder.  It is noted, however, that 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) (the Board must review the entire record, but does not have to discuss each piece of evidence). 

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

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 rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert, supra, 1 Vet. App. at 57. 

The Veteran asserts that he first began to have mental problems in his last year in service, and has continued to have mental problems to the present.  He alleges that his sergeant told him that he had mental problems in his last year of service as well.  

Service personnel records document that beginning in July 1980 the Veteran began to have discipline problems, including failure to go to his appointed place of duty, breaking a mirror at the enlisted club after having been banned from the club, not shaving for formation and possessing a switchblade knife.  The Veteran was noted to be a discipline problem and had to be monitored closely. 

Following his discharge in October 1981, the Veteran was unable to obtain employment and eventually became homeless.  In November 1986, he was diagnosed as schizophrenic and declared disabled as a result by the Social Security Administration (SSA), with an onset date in December 1982.  SSA records are associated with the claims file.

In April 2001, the Veteran was admitted to a state hospital due to his mental disorder for a week.  During this hospitalization, the Veteran reported a long history of mental illness and stated that his last episode had been caused by his not taking medication for the past two months.  The Veteran was diagnosed with psychotic disorder, not otherwise specified (NOS) and chronic alcohol dependence.  More recent treatment records indicate the Veteran was attending VA group counseling in 2006 and had a diagnosis of depressive disorder, NOS.

The Board has no reason to doubt the credibility of the Veteran's report of mental problems.  While neither the Veteran nor his sergeants are competent to diagnose him with a mental disorder, the Veteran is competent to testify to symptoms he experienced.  The Board finds that the Veteran's lay statement to be credible. 

Unfortunately, the Veteran failed to report for VA examinations scheduled for April 2011, November 2011, and October 2012.  As a result, the evidence of record is not sufficient to establish that he has any mental disorders related to his active service.  

The Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).  However, the Veteran is not competent to render an opinion concerning medical diagnosis or causation.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation.  Jones v. Brown, 7 Vet. App. 134, 137 (1994).  As discussed above, there is no probative medical evidence showing that there is a relationship or nexus between the Veteran's mental disorders and any injury or disease during service.  Hickson, 12 Vet. App. 247, 253, citing Caluza, 7 Vet. App. 498, 506, aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Therefore, for the reasons and bases expressed above, the Board concludes that the evidence in this case preponderates against the claim and the benefit of the doubt rule is not for application.  Gilbert, 1 Vet. App. 49, 53.


ORDER

Entitlement to service connection for a mental disorder is denied.



____________________________________________
MARK GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs