Citation Nr: 1313705 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-27 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from February 1976 to July 1976 and from August 1976 to August 1979. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This claim was previously before the Board in June 2011. The Board acknowledges that it has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, the Board does find substantial compliance with its remand instructions and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). FINDINGS OF FACT 1. The Veteran was clinically assessed as psychiatrically sound on separation from service, and he denied experiencing numerous psychiatric symptoms on his 1979 separation medical history report; he also denied at that time ever being treated for a mental illness. 2. Attempts to obtain the Veteran's reported in-service psychiatric treatment revealed there were no such records. 3. The Veteran's contention that he received psychiatric treatment in service is not credible. 4. The first post-service psychiatric treatment of record is in 2009, several years after the Veteran's discharge from service. 5. The only medical opinion of record addressing the etiology of the Veteran's currently-diagnosed acquired psychiatric disorder finds that it is unlikely that the Veteran's acquired psychiatric disorder is directly related to service. CONCLUSION OF LAW An acquired psychiatric disorder, claimed as depression, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) the Veteran status; (2) the existence of a disability; (3) a connection between the Veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. Regarding VA's duty to notify, a June 2009 letter apprised the Veteran of the criteria for establishing service connection, the evidence VA would obtain, and the evidence the Veteran is responsible for providing. Furthermore, this letter advised the Veteran of the method by which VA determines disability ratings and effective dates, and this notice was provided to the Veteran prior to the initial adjudication of his claim. Thus, VA's duties to notify have been satisfied. Regarding VA's duty to assist, the Board finds that all relevant facts have been properly developed and that all available evidence necessary for equitable resolution of the issue decided on appeal has been obtained. The Veteran's relevant VA treatment records are associated with his claims file, as well as his Social Security Administration (SSA) records. Additionally, efforts were made to obtain the Veteran's reported in-service psychiatric treatment. Based on the information of record, a Personnel Information Exchange System (PIES) request to obtain these records was made. A November 2011 PIES response indicates that a search was conducted, but there were no records. The Veteran was notified of this fact in February 2012. The Veteran was also provided with a VA examination with regard to his service connection claim. The Board finds that the examination and related medical opinion are sufficient for adjudicatory purposes, as the examination report reflects that the examiner conducted a thorough psychiatric examination of the Veteran and a detailed review of the Veteran's claims file. Moreover, the medical opinion is supported by a sufficient rationale, and neither the Veteran nor his representative have asserted that the VA examination or medical opinion are insufficient. The Veteran was also offered an opportunity to testify at a Board hearing, but he declined the offer. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Criteria & Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran's service treatment records fail to reflect any psychiatric treatment or reference to an acquired psychiatric disorder. Moreover, the medical examination reports created during the Veteran's periods of service failed to note any psychiatric abnormalities, and the Veteran denied experiencing frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort in corresponding medical history reports. The Veteran specifically denied ever receiving any mental health treatment in his 1979 service separation report of medical history. Furthermore, a 1983 reserve enlistment examination also fails to reflect any psychiatric abnormalities, and the Veteran also denied experiencing frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort in the corresponding medical history report. As well, he denied ever receiving treatment for a mental condition. VA outpatient treatment records dated in June 2009 reflect that the Veteran was assessed with a depressive disorder, as well as cocaine dependence in early full remission and nicotine dependence. In August 2009, the Veteran was assessed with depressive disorder, not otherwise specified. He was examined for VA purposes in connection with this claim in June 2012, at which time he was diagnosed to have depressive disorder and polysubstance dependence. The examiner, who considered the documented history and the Veteran's response to her inquiries, offered the opinion that the Veteran's psychiatric disability was not incurred in or caused by service, noting the Veteran's difficult childhood experiences led to his "increased vulnerability for later development of depressive disorder." The Veteran has contended that his disability was incurred in service, indicating on a May 2010 VA Form 9 that he was seen by a psychologist in service. As set out above, however, the Veteran's service treatment records show no psychiatric treatment, and in fact, the Veteran denied on multiple occasions in 1979 and 1983, ever having received mental health treatment. Moreover, a search of mental health clinic records at the base where the Veteran reported receiving such care, revealed there were no such records. In view of this, the Board does not consider the Veteran's recent report of in-service psychiatric treatment to be credible. Having concluded the Veteran's report of in-service treatment is not credible, and with the absence of any other evidence of a psychiatric disability until many years later, together with the VA examiner's opinion that current disability is unrelated to service, there is no reasonable basis for concluding the Veteran's claimed psychiatric disorder was incurred in service. Accordingly, the appeal is denied. ORDER Service connection for an acquired psychiatric disorder, claimed as depression, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs