Citation Nr: 1313879 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 06-02 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disability other than posttraumatic stress disorder (PTSD), claimed as major depressive disorder with psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from November 1990 to May 1991. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that denied service connection for anxiety disorder. A May 2009 rating decision granted service connection for PTSD. When this case was previously before the Board in September 2010 and August 2012, it was remanded for additional development. The case is now before the Board for final appellate consideration. The RO in Cleveland, Ohio, has jurisdiction of the Veteran's claims file. In this case, the evidence and contentions submitted by the Veteran make it clear that he contends that his major depressive disorder with psychosis is directly or presumptively due to active duty. He has not contended, and the evidence does not suggest, that this disability was caused or aggravated by his service-connected PTSD. When neither the veteran nor the record raises the theory of entitlement to service connection on a secondary basis, the Board need not sua sponte consider and discuss that theory. Therefore, the Board will not discuss secondary service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's major depressive disorder with psychosis is related to active duty. CONCLUSION OF LAW A psychiatric disability other than PTSD, claimed as major depressive disorder with psychosis, was not incurred in or aggravated by active service, nor may it be so presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In March 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in October 2001, VA informed the appellant of what evidence was required to substantiate his claim, and his and VA's respective duties for obtaining evidence. Correspondence dated in May 2012 notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, supra, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was not completed prior to the initial AOJ adjudication denying the claim, the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. The United States Supreme Court has held that an error in VA notice should not be presumed prejudicial, except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the Veteran nor his representative has alleged any prejudicial or harmful error in VA notice, and the Board finds, based the factors discussed above, that no prejudicial or harmful error in VA notice has been demonstrated in this case. In addition, the appellant was represented by a service organization throughout his appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006) (appellant's representation by counsel "is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error"). The VCAA requires that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). The Board finds the VCAA notice requirements have been met in this case. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records, VA medical records, private medical records, lay statements, and records from the Social Security Administration (SSA). The Board has carefully reviewed the evidence and concludes that there has been no identification of further available evidence not already of record. The Veteran failed to report for a Decision Review Officer (DRO) hearing in November 2005, and cancelled a DRO hearing in February 2006. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). A VA examination with respect to the Veteran's claim for service connection for a psychiatric disability other than PTSD was conducted in March 2008. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in this case is more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). In addition, the development requested by the Board's prior remands has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. 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 of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including psychoses, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran essentially contends that due to stressors and trauma during active duty in the Persian Gulf he incurred a psychiatric disability other than PTSD, claimed as major depressive disorder with psychosis. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for major depressive disorder with psychosis, on either a direct or a presumptive basis. The Veteran's service treatment records are negative for pertinent complaints, symptoms, findings and diagnoses. The report of the Veteran's April 1991 separation medical examination indicates that his clinical psychiatric evaluation was normal. It identifies no defects or diagnoses. The Veteran's April 1991 separation report of medical history indicates that the Veteran denied past or present depression or excessive worry, as well as nervous trouble of any sort. VA treatment records show that in June 1991, the Veteran reported stressors in Southwest Asia and sought treatment for anxiety and irritability. He was diagnosed with adjustment disorder with (unclear) and rule out PTSD in July 1991. In April 1999, the Veteran reported being irritable and depressed since he returned from the Gulf War. He stated that he had a worsening of symptoms since his divorce 6 or 7 months earlier. The Axis I diagnosis was probable MDE, rule out PTSD. The Veteran continued to receive psychiatric treatment in 1999 and 2000. Diagnoses included mood disorder, and MDE, severe, without psychosis. The Veteran continued to received VA treatment. VA treatment records dated in 2006 reflect that the Veteran reported hearing voices, and he was diagnosed with schizophrenia, chronic, undifferentiated type. A January 2007 VA outpatient treatment report provides a diagnosis of PTSD with psychosis. Thus, the post-service evidence is negative for complaints, symptoms, findings or diagnoses of major depressive disorder with psychosis within one year of the Veteran's separation from active duty. Thus, presumptive service connection is not warranted. 38 C.F.R. §§ 3.307 and 3.309. Moreover, a psychosis was not shown for many years after active duty. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The report of the March 2008 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The resulting Axis I diagnosis was major depressive disorder, recurrent, at times with psychosis; PTSD; and malingering. The examiner provided the opinion that the Veteran's psychotic symptoms were not likely related to PTSD, but more likely due to major depression. The major depressive disorder was not likely caused by traumatic stresses in the military. It appeared more likely to have developed as a reaction to stresses occurring after the military. The examiner stated that it did not appear likely that the Veteran had schizophrenia, nor did it appear that psychosis started during or shortly after military. The only suggestion of schizophrenia was noted long after the Veteran's military experience and it was not clear that he had a psychotic disorder. If at some point in the past the Veteran met the criteria for schizophrenia, it was less likely than not that it had its genesis in anything related to his combat experience. The examiner summarized that the Veteran apparently had had psychosis in the past. However, there did not appear to be symptoms consistent over time. He appeared to have acute symptom episodes consisting mainly of depression which at times had quickly resolved with treatment. The psychosis symptoms appeared to have been noted mostly when the Veteran was having an episode of reactive depression because of some stress in his life. At times when he appeared to be doing better, he was denying experiences of psychosis. The Veteran's history suggested that his mental health problems were more problematic after his wife was unfaithful, although later descriptions suggested some of his problems dated back to his active duty. He was functioning adequately during these times and had been quite successfully employed for many years. His description of his trauma changed at that time and had the quality of being seen as through current negative thinking and perceptions common with depression. It was very likely that he developed major depression in reaction to life stresses since the military. The Board finds that the March 2008 VA medical opinion that the Veteran's major depressive disorder with psychosis is not related to the Veteran's active duty constitutes probative evidence against the Veteran's claim. It is based on a detailed review of the medical record. The examiner explained his opinion with detailed references to the Veteran's active duty medical history and post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). There is no competent medical evidence to the contrary of the March 2008 VA medical opinion. In this regard, the Board recognizes that a September 2001 SSA determination found that the Veteran was disabled as of December 2000. The primary diagnosis was affective disorders and the secondary diagnosis was disorders of the back. However, the accompanying medical records, which consist primarily of VA medical records, include no medical evidence or opinion linking the Veteran's major depressive disorder with psychosis to his active duty. The record contains statements received in 2005 from the Veteran's former spouse, as well as two fellow servicemen who served with the Veteran in the Persian Gulf. The witnesses describe their firsthand observations as to the psychiatric changes the Veteran underwent while in the Persian Gulf. The Board notes that the Veteran and his witnesses are competent to testify as to his observable symptoms during and after active duty. The Board finds that the witnesses' assertions that that the Veteran has had psychiatric symptoms since active duty are credible. The Board finds that the Veteran's assertions that he has had psychiatric symptoms since active duty are also credible, at least insofar as his post-service history is concerned. In this regard, the Board points out that at separation the Veteran actually denied all pertinent complaints. However, the contentions by the Veteran and his witnesses do not constitute medical evidence in support of his claim for service connection for major depressive disorder with psychosis. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case of whether the Veteran developed major depressive disorder with psychoses as a result of active duty falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran and his witnesses cannot constitute competent medical evidence in support of his claim for service connection for major depressive disorder with psychosis. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, supra. The Veteran and his witnesses are competent to state that they observed symptoms of a psychiatric disability other than PTSD, claimed as major depression with psychosis, since service. However, they are not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of the Veteran's current major depression with psychosis. As such, the Board finds that the assertions by the Veteran and his witnesses are outweighed by the March 2012 VA medical opinion. In reaching this decision, the Board is not denying that the Veteran incurred a psychiatric disability during active duty. Again, the Veteran is service-connected for PTSD. Rather, the Board is finding that the Veteran did not incur major depressive disorder with psychosis during active duty, and that he may not be presumed to have incurred it during active duty. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for a psychiatric disability other than PTSD, claimed as major depressive disorder with psychosis. As the preponderance of the evidence is against the claim, the benefit of the doubt do`ctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a psychiatric disability other than PTSD, claimed as major depressive disorder with psychosis, is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs