Citation Nr: 1312822 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 03-35 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability (other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1982 to March 1982, October 1986 to March 1987, and from February 1988 to July 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing, but failed to report for a hearing scheduled in June 2006. The Board previously remanded the case in October 2006, May 2009, May 2011, May 2012 and January 2013. FINDING OF FACT Acquired psychiatric disability other than PTSD was not manifested during the Veteran's active duty service or for many years thereafter, nor is acquired psychiatric disability otherwise related to such service. CONCLUSION OF LAW Acquired psychiatric disability other than PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in November 2011 and May 2012 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Although the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the effort in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of her claim and given ample time to respond, but the AOJ also readjudicated the case by way of supplemental statements of the case issued in April 2012, November 2012 and February 2013 after the notices were provided. The Board notes that the Veteran was sent a duty to assist letter in January 2013 advising her that she would be scheduled for a VA examination pursuant to a Board remand. The Board received a notification that this letter was returned undeliverable. There is no change of address in the record nor is there any indication to suggest the Veteran has moved. Further, the Veteran did appear for said VA examination. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error and returned letter did not affect the essential fairness of the adjudication. Further, the 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 v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (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). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA examination in February 2013. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic disability during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period on or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Service treatment records reflect that the appellant's psychiatric status was evaluated as normal on enlistment in September 1987. The Veteran also reported no psychiatric history, but she did state that she had previously used marijuana. On a May 1990 mental status evaluation, there were no reports, complaints, or treatment for a psychiatric disability. In May 1990, the Veteran reported depression or excessive worry. However, a May 1990 mental health activity assessment indicated an appropriate affect, and no mental health treatment or medication provided. Additionally, on June 1990 separation examination, there were no complaints, treatment, or diagnoses related to mental health. Post-service private treatment records dated in 1995 and 1996 were negative for an acquired psychiatric disorder. In June 1996, the Veteran's mother submitted a statement indicating that her daughter received psychiatric treatment in service and began using drugs. A September 1997 Trauma Intake Form revealed the Veteran wanted help with a nervous disorder secondary to a rape incident during military service. VA outpatient treatment records dated in 1996 show that the Veteran suffered from polysubstance abuse. A March 1996 entry indicates that the Veteran reported a suicide attempt in service. A September 1996 treatment record showed the Veteran's affect was considered slightly manic. She reported being raped four years prior. She also informed the treatment provider that she began using drugs and alcohol during service. A July 1997 lay statement indicated that when visiting the Veteran at Fort Hood, she found the Veteran in low spirits. She further stated the Veteran talked about killing herself. A statement from the Veteran's mother in July 1997 indicated she received a call from the Veteran's son because the Veteran was locked in a closet with a gun saying she was going to kill herself. The mother did not indicate when this incident occurred. VA outpatient treatment records dated between 1996 and 2001 show that the Veteran continued to receive treatment for polysubstance abuse. In September 1996, the Veteran reported that she first used marijuana at age 15 and first used crack cocaine in 1982. In November 1996, major depression was ruled out. In December 1996, she reported anxiety and depression symptoms associated with the rapes. She was diagnosed with PTSD secondary to sexual trauma. In January 1997, the Veteran gave a history consistent with anxiety, thought to possibly be depression. A July 2001 mental health note lists a number of Axis I diagnoses, including bipolar disorder. Further, in November 2001, a past psychiatric history revealed the Veteran's first depressive episode occurred at age 16 after pregnancy and abortion. VA outpatient treatment records dated between 2005 and 2010 show the Veteran continued to seek mental health treatment. Following a January 2013 Board remand, the Veteran was afforded a mental disorders examination in February 2013. The examiner provided DSM-IV diagnoses of bipolar disorder, cocaine dependence, and PTSD. The examiner opined that these mental disorders are not related to service. Regarding the bipolar disorder, the examiner stated that the Veteran does not characterize her military experience as stressful and there is no evidence to suggest that she had mood instability while in service. In considering all of the evidence of record, the Board concludes that the Veteran is not entitled to service connection for an acquired psychiatric disability other than PTSD. The Veteran's service treatment records do not reflect complaints or treatment of a psychiatric nature, other than on a May 1990 report of medical history, in which the Veteran noted depression or excessive worry. However, a mental health activity assessment following this report was normal. It was reported that the Veteran displayed no abnormalities of thought or behavior. The report of a subsequent examination in June 1990 showed that the Veteran's psychiatric status was clinically evaluated as normal. Notwithstanding a diagnosis of polysubstance abuse in 1996, the earliest postservice medical evidence showing psychiatric treatment other than PTSD was in July 2001 when the Veteran received an Axis I diagnosis of bipolar disorder. The Board also notes that a November 1996 treatment record ruled out major depression. Therefore, the first indication of treatment for and a diagnosis of a psychiatric disability other than PTSD was several years after service. Further, the Board notes that in an October 2006 Board decision, the Veteran was denied service connection for PTSD primarily because there was no supporting evidence of the claimed in-service stressor. Thus, even if the Veteran had asserted that her bipolar disorder was related to her PTSD, because she is not service-connected for PTSD and is not shown to have had bipolar disorder in service or symptoms of bipolar disorder for several years after service, service connection on a direct basis under 38 C.F.R. § 3.303(b) or on a secondary basis under 38 C.F.R. § 3.310 has not been established. With respect to establishing service connection on a direct basis under 38 C.F.R. § 3.303(d), the evidence is against the Veteran's claim. In this regard, the VA examiner in February 2013 negated a nexus between the Veteran's bipolar disorder and service based on his review of the Veteran's claims file and examination of the Veteran. He opined that he found no evidence to suggest that the Veteran had mood instability while in service, and further pointed out that the Veteran herself did not characterize her military experience as stressful per se. The Board assigns considerable weight to the opinion of this examiner which was based on knowledge of the Veteran's history to include review of the claims file, as well as examination of the Veteran. The weight of the evidence is against a finding that the Veteran's diagnosed bipolar disorder was caused by any incident of service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F. 3d 1372, 1377 at n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). A laymen is competent to report what he or she experiences through one of the senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Although there are lay statements reporting certain behavior (to include a suicide attempt) during service, the numerous and detailed service records show that medical personnel regularly found that no mental health disorder was present. This is not a case where there is no contemporaneous records showing the Veteran's mental health during service. Moreover, post-service medical records include history furnished by the Veteran which reference several suicide attempts with the first one being several years after service. The credibility of the lay statements is therefore diminished. Additionally, the Board notes that direct service connection is not available for a disability resulting from the abuse of alcohol or drugs. See 38 C.F.R. § 3.301(a). Further, the Veteran is not service-connected for any psychiatric or physical disability, so service connection on a secondary basis cannot be considered. See 38 C.F.R. § 3.310. Additionally, the evidence of record, in the form of the February 2013 examination report, confirms that the Veteran's substance abuse is not likely related to service, but that it does cause her major impairment in occupational functioning, in great part due to the legal consequences she suffered in 1986 with cocaine possession. Based on the foregoing, the Board finds that the weight of evidence goes against the Veteran's claim for service connection for an acquired psychiatric disability other than PTSD. While it is clear from the record that the Veteran suffers significant mental health problems as well as substance abuse, the record as it stands supports a finding that such problems are post-service in origin. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). ORDER The appeal for entitlement to service connection for an acquired psychiatric disability other than PTSD is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs