Citation Nr: 1312832 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 09-30 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 2001 to May 2003. He also served in the National Guard, including periods of active duty for training, from November 1983 to March 1984, and from July 2006 to February 2007. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2011 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Louisville, Kentucky. A transcript of the hearing is in the claims file. In a decision dated in October 2011, the Board denied service connection for "an acquired psychiatric disorder, to include adjustment disorder and obsessive compulsive disorder." The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012 the parties filed a Joint Motion for Remand, which the Court granted in a July 2012 Order. In November 2012 the Board remanded the matter for further development consistent with the Joint Motion for Remand. No further action to ensure compliance with the Board's 2012 remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran did not complain of, and was not treated for, any emotional problems during active military service, and a currently diagnosed psychiatric disorder, variously diagnosed as major depressive disorder, anxiety disorder, adjustment disorder, and obsessive compulsive disorder, was not manifested in, or shown related to, active military service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), 3.7(r), 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter dated in September 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). This letter informed the Veteran of the criteria for service connection; of the information and evidence needed to substantiate his claim; and of his and VA's respective duties for obtaining evidence. The Veteran was also apprised and of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has also been afforded multiple VA examinations, and the Board has reviewed this evidence and finds it to be adequate for a decision in this matter. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In addition to the foregoing, the Veteran testified regarding his claim before the undersigned Veterans Law Judge in a March 2011 Travel Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the 2011 Board hearing the Veteran was ably assisted by an accredited representative from the Disabled American Veterans. The representative, and the Veterans Law Judge, asked questions to ascertain the nature and onset of the Veteran's psychiatric disorder(s). No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Additionally, the Veteran demonstrated actual knowledge of what was needed for the claim to be granted by the questioning pursued by his representative at the hearing. Moreover, neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). In sum, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and he has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal. 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); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist. The Board will therefore review the merits of the Veteran's claim, de novo. Merits The Veteran seeks service connection for a psychiatric disorder. He admits that there is no evidence in military records of any psychiatric/emotional complaints or treatment, but says that he kept quiet because he did not want to get put out of service. He reports that he is a police officer and has been for the past 22 years. As acknowledged by the Veteran, there is no record of any complaints, diagnosis, or treatment for any emotional/psychiatric problems during active duty service or a period of active duty for training. DD-214s confirm a military occupational specialty of Security Police. In August 2009, the Veteran filed his claim for service connection for a psychiatric disorder. In correspondence dated in October 2009, he stated that he began having emotional problems while deployed to Spain in 2002. He said that his mother suffered a heart attack during that time, and talked about having to return to the United States on emergency leave. VA medical records dating from 2009 document the Veteran as complaining of feelings of failure related to his medical separation from the National Guard; and show treatment for psychiatric complaints diagnosed as adjustment disorder and obsessive compulsive disorder. On VA psychiatric examination in September 2010 the Veteran reported that he had become irate while on active duty in Spain because he was initially refused permission to return to the states to be with his ailing mother, who had a heart attack and was awaiting open heart surgery. He reported that he was then given permission to fly back, escorted, to see his mother. He also reported that he was medically retired against his will from the National Guard after some 20 years service. He complained of difficulty sleeping, easy frustration, and difficulty concentrating, sitting, and relaxing, and said that he felt the need to be doing something constantly. Axis I diagnosis was major depressive disorder, recurrent; and anxiety disorder, not otherwise specified. The examiner, a psychologist, stressed that the Veteran's psychiatric disorders were not caused by or a result of his coming under attack while on active duty or being forced to retire from the military due to his medical condition. The examiner acknowledged that the Veteran had emotional reactions to stressors during his military service (including his mother's heart attack), but stated that those incidents were not related to his current depression, and added that there was no indication that the Veteran suffered from an anxiety or mood disorder during active military service. Instead, the examiner indicated that the Veteran's "significant psychosocial stressors" subsequent to his active service, including a divorce, his father's death, and a workplace injury, were responsible for his current depression. In December 2012 the Veteran was accorded a new VA psychiatric examination by another licensed psychologist. During the examination the Veteran repeatedly stated that he felt like a failure, and lamented his discharge from the National Guard. He also spoke repeatedly of his desire for perfection in every facet of his life. Axis I diagnosis was obsessive compulsive personality disorder; and major depressive disorder, recurrent, mild. According to the examiner, the Veteran's obsessive compulsive disorder is the primary diagnosis, which in turn leads to feelings of depression, anxiety, and failure when he cannot live up to his own lofty standards of performance. The examiner then stated that, based on his review of the claims file and the medical evidence of record, and based on the Veteran's recitation of his experiences and his description of his mental functioning during active military service, a current psychiatric disorder did not begin during active military service and is not related to any incident of active military service. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 C.F.R. § 3.303. Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Active military, naval, and air service includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 C.F.R. §§ 3.6(a), 3.7(r). Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of ten percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Discussion & Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). From the outset, the Board notes that there is no record (including complaint, diagnosis, or treatment) of an acquired psychiatric disorder during active military service. There is also no evidence of psychosis in the year after active military service (38 C.F.R. § 3.384); and no competent evidence that relates a current psychiatric disorder to active military service. Although VA medical records show treatment for emotional complaints, diagnosed as major depressive disorder, anxiety disorder, adjustment disorder, and obsessive compulsive disorder, there is no indication in these records that any psychiatric disorder is related to his active service; rather, these records pertain to the Veteran's current symptoms and treatment. To the extent that the Veteran himself propounds that a current psychiatric disorder began during active military service, the Board is mindful that under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a 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). However, this is not the case here, as the presence of a psychiatric disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125; that is, a diagnosis that conforms to the DSM-IV. In other words, the existence of a psychiatric disorder is not a simple medical condition that the Veteran as a lay person can perceive based on mere personal observation, that is, by visual observation or by any other of the senses. The Veteran, as a lay person, is therefore not competent to offer a medical diagnosis or an opinion that any current psychiatric disorder is related to active military service. And it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or an opinion on medical causation. Accordingly, to the extent that the Veteran statements are offered as evidence of a diagnosis or incurrence during active military service, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim. Additionally, to the extent that the Veteran suggests that his grief/sorrow secondary to family crises during service was reflective of an acquired psychiatric disorder diagnosed later in life, no medical provider has made such an assertion. Quite the contrary. According to VA examiners, based on the Veteran's account of his stressors and feelings during active duty service, the Veteran's psychiatric disorders are not related to active military service. The Board finds these opinions, which were proffered by two different VA examiners, after clinical testing and consultation with the Veteran, to be highly probative evidence against the claim. And, again, it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer medical diagnoses or opinions. This leaves the record simply showing the presence of an acquired, non psychosis, psychiatric disorder after active military service. This is not a basis upon which to establish service connection. Accordingly, the weight of the evidence is against the claim and the benefit of the doubt standard of proof does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs