Citation Nr: 1313752 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-18 474 ) 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, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1955. This matter comes 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 Louisville, Kentucky. In March 2012, the Board remanded this claim for further development to the Appeals Management Center (AMC). The AMC continued the denial and the claim is again before the Board. The Board also remanded the issues of entitlement to service connection for sinusitis and allergic rhinitis. In a November 2012 rating decision, the AMC granted entitlement to service connection for sinusitis and allergic rhinitis. The Veteran has not expressed disagreement with the assignments of the effective date for the grants of service connection or the zero percent disability ratings. Therefore, those disabilities are no longer in appellate status. 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). FINDINGS OF FACT 1. The Veteran has been diagnosed with a personality disorder. 2. The competent medical evidence preponderates against finding that the Veteran has or has had an acquired psychiatric disorder during the appellate term. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service and was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November and December 2008; January, March, and June 2009; and March 2012 of the information and evidence needed to substantiate and complete a claim of entitlement to service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA provided notice of how disability evaluations and effective dates are assigned in December 2008. This claim was most recently readjudicated in a supplemental statement of the case issued in February 2013. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim being adjudicated to the extent possible, and, as warranted by law, afforded a VA examination. The RO and AMC obtained the Veteran's VA treatment records, and afforded him a VA examination pursuant to the March 2012 remand. The appellant submitted the available private treatment records and reported in an April 2012 report of general information that any other private treatment records have been destroyed. The report of the April 2012 mental disorders examination reflects that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate mental status examination and interview, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Pursuant to the March 2012 remand, the VA examiner addressed whether the appellant has a current acquired psychiatric disorder. The Board therefore concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Social Security Administration (SSA) disability records are not of record. Additionally, the Veteran's service treatment records have likely been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. In January 2002 and March 2009, the service department indicated that a search of morning reports showed no remarks regarding the appellant. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Inasmuch as it appears that service treatment records are missing, VA has conducted a thorough search for additional treatment records. Although a test report showing the Veteran's blood type dated October 2, 1952, is of record, no additional related records have been located. Requests to the NPRC have yielded no records. In March 2009, the RO prepared a memorandum addressing the unavailability of the service treatment records and the Veteran was made aware of the unavailability of these records and has been provided with information as to alternate documents that might substitute for the service treatment records. Likewise, in June 2009, the RO prepared a memorandum addressing the unavailability of the Social Security Administration disability records and the Veteran was made aware of the unavailability of these records. Pursuant to the March 2012 remand, VA readjudicated the claim of entitlement to service connection for an acquired psychiatric disorder. In light of that and the discussions of the post-remand examination above, VA complied with the directives of the March 2012 remand. Stegall v. West, 11 Vet. App. 268 (1998). In short, there is no error or issue that precludes the Board from addressing the merits of this appeal. General law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). Certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Personality disorders are not disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Veteran contends that he has an acquired psychiatric disorder that began in service or is secondary to the service-connected sinusitis and tinnitus. The Board has reviewed all of the evidence of record, to include the VA and private treatment records and the VA examination report. These records do not show that the Veteran currently has or has had an acquired psychiatric disorder since he filed his claim in October 2008. Prior to the filing of the claim, private treatment records dated in 1970s and 1980s reflect that the Veteran was prescribed Valium for nervousness and that the following diagnoses were made: anxiety reaction, chronic anxiety, adjustment disorder with mixed emotional features, obsessive-compulsive personality disorder with paranoid traits, and dependent personality disorder. As for the diagnoses of the personality disorders, a personality disorder is not a disability for the purposes of service connection. 38 C.F.R. § 3.303. Therefore, service connection cannot be granted for his personality disorders. In an April 2012 report of general information, the appellant reported that he only been treated by VA for the past 12 years. VA treatment records dated before and after August 2008 do not reflect a diagnosis of a present acquired psychiatric disorder. Similarly, the April 2012 VA examiner did not diagnose an Axis I disorder. The examiner noted that the Veteran described himself as a nervous person, but that this nervousness only impacted his life occasionally by mildly bothering him. The appellant reported that he had never sought psychiatric care for his anxiety and that he was not treated with any psychiatric medications except in the context of the period when he was significant heart problems. The examiner stated that the claimant's reported in-service "nervous stomach" did not seem to be anxiety related and that the "nervous stomach", according to the Veteran, was resolved during service. The examiner concluded that there was not sufficient evidence to support a diagnosis of an anxiety disorder. In the Veteran's and his spouse's statements, they in essence are claiming that his symptoms of anxiety, nervousness, and irritability are symptoms of a current acquired psychiatric disorder. Lay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a lay person is competent to identify the medical disability, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at that time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran and his wife are competent to report on what the feels; however, they are not competent to attribute any of his perceived feelings or symptoms to a current pyshcaitric disorder. As for continuity of anxiety, nervousness, and irritability symptomatology, the Veteran and his spouse are competent to report this symptomatology and the Board finds them credible with regard to experiencing anxiety, nervousness, and irritability. That said, supporting medical evidence is required because a claim based on continuity of symptomatology can only be granted if there must be competent medical evidence of a current disorder for which there is continuity of symptomatology. As noted above, the preponderance of the competent medical evidence preponderates against finding that the Veteran has or has had an acquired psychiatric disorder during the appellate term. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the Board ultimately places far more weight on the VA examination report and recent VA treatment records showing no diagnosis of a current acquired psychiatric disorder. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to address complex medical questions). In the absence of a current disability, service connection cannot be granted on a direct or secondary basis. The Board concludes that the preponderance of the evidence is against granting service connection for an acquired psychiatric disorder. The benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs