Citation Nr: 1314152	
Decision Date: 04/29/13    Archive Date: 05/15/13	

DOCKET NO.  08-17 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder not otherwise specified (NOS).




ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel



INTRODUCTION

The Veteran served on active duty from November 1969 to August 1972.

This appeal to the Board of Veterans Appeals (Board/BVA) is from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for an anxiety disorder.

In January 2010, the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, to provide the Veteran notice required by the Veterans Claims Assistance Act (VCAA).  The AMC provided this notice in a February 2010 letter.  Upon receiving the file back from the AMC, however, the Board observed that still further development of the claim was required.  So the Board again remanded the claim in November 2011, this time to procure VA treatment records since the 1980s, including from the local VA Medical Center (VAMC) in Jackson, and to have the Veteran undergo a VA compensation examination for a medical nexus opinion concerning the likelihood that any current psychiatric disorder - including an anxiety disorder, NOS, is related or attributable to his military service, but especially to the events or incidents he claims occurred during his tour in Vietnam during the Vietnam War.

The medical nexus opinion obtained on remand, however, was inadequate, so there had not been compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the Veteran the right to compliance with the remand orders, and the Board itself commits error in failing to ensure compliance).  Consequently, the Board again remanded the claim to the RO via the AMC in September 2012.

A VA compensation examiner since has provided the necessary additional comment in October 2012.  After considering this additional comment, the AMC issued a supplemental statement of the case (SSOC) in February 2013 continuing to deny this claim, so it is again before the Board.

A prior December 1999 RO decision also denied service connection for posttraumatic stress disorder (PTSD).  Following notification of that decision that same month, the Veteran did not timely appeal that determination, so it is final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).  To reopen his claim for PTSD, there has to be new and material evidence since that decision.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.

In March 2006 he filed a petition to reopen his claim for service connection for PTSD, but in June 2006 the RO determined there was not the required new and material evidence and, therefore, denied his petition to reopen this claim.  The RO later reopened this claim in April 2007, after considering additional evidence determined to have been new and material, but ultimately continued to deny this claim on its underlying merits after de novo review.  The Veteran did not appeal that April 2007 decision confirming and continuing the denial of his claim for PTSD, so that decision also is final and binding on him concerning this claim.  Id.

Instead, in June 2007 he filed this claim now at issue for an anxiety disorder, which he also alleged was due to his time on active duty, so a service-connected disability.  He did not refer to PTSD, either expressly or implicitly, including insofar as disagreeing with the prior denial of this claim.  So that statement cannot be accepted as a timely notice of disagreement (NOD) with the denial of his claim for PTSD, only instead, as mentioned, a claim for an anxiety disorder, NOS.  According to the holding in Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002), although an NOD need not necessarily contain any magic words or phrases, it must at least express clear disagreement with a decision denying a claim to satisfy the requirements of 38 C.F.R. § 20.201.  The subsequent November 2007 RO decision at issue denied the claim for an anxiety disorder, and this appeal ensued.


Unlike his prior unappealed claim for PTSD, the Veteran did not have to submit new and material evidence concerning this claim for an anxiety disorder because there had not been a prior, final and binding, denial of this claim.  Further concerning this, generally speaking, a new theory of entitlement to a benefit does not constitute a new claim.  See Bingham v. Nicholson, 421 F.3d 1346, 
1348-49 (Fed. Cir. 2005) (denial of a claim by the Board is a decision as to all potential theories of entitlement, not just those considered and rejected); Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) (although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim); see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (on direct appeals to the Board, theories of substantive entitlement to benefits such as direct and secondary service connection are not independent for res judicata purposes, and can be lost forever if not addressed).  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), the "factual basis" of a service-connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996).  The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has determined that the scope of Boggs and Ephraim is limited to claims to reopen.  Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively, after there has been a finding of fact based upon competent medical evidence.  Clemons v. Shinseki, 23 Vet. App. 1, 8 (2009).  So the claim at issue concerns whether the Veteran is entitled to service connection for an anxiety disorder, NOS, not instead whether there is new and material evidence to reopen this claim given, again, that there is no prior, final and binding, denial of the claim specifically for this condition, only instead for PTSD.



FINDING OF FACT

The Veteran does not have an acquired psychiatric disorder, including an anxiety disorder NOS, as a result or consequence of his military service.


CONCLUSION OF LAW

The Veteran does not have an acquired psychiatric disorder, including an anxiety disorder NOS, because of disease or injury incurred in or aggravated by his military service or that may be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

VA has met all statutory and regulatory notice and duty to assist obligations.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and any medical or lay evidence not of record that is necessary to substantiate the claim, including apprising them of the information and evidence the Veteran is responsible for providing versus the information and evidence VA will obtain for him.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).


These notice requirements apply to all five elements of a service connection claim:  1) Veteran's status; 2) existence of a current disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom Hartman v. Nicholson, 483 F. 3d 1311 (2007).  

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323   (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim.

In this particular case at hand, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F. 3d 1369 (Fed. Cir. 2004).  VCAA letters were sent to him incrementally between December 2006 and November 2011, but, importantly, the Board's January 2010 remand of this claim to the RO via the AMC was to provide him the necessary additional notice required by the VCAA, so was to rectify ("cure") the deficiencies in the notice he had received up to that point in time, which the November 2011 letter did.  The letters, especially in combination, 

indicated the type of evidence and information needed to substantiate this claim and apprised him of his and VA's responsibilities in obtaining this supportive evidence.  Moreover, his claim since has been readjudicated in the February 2013 SSOC.  He therefore has received all required notice concerning this claim and has had his claim reconsidered since providing all required notice and giving him opportunity to submit additional evidence and/or argument in response to the additional notice.

Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning this claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The available service treatment records (STRs) and post-service VA medical treatment records have been obtained to the extent available.  The Board remanded this claim in November 2011 partly to procure VA treatment records since the 1980s, including from the local VAMC in Jackson.  In the file is a communication since dated in February 2012 from the VAMC in Jackson indicating there are no records concerning the Veteran at that facility.  The AMC made the required efforts to obtain these additional records and appropriately notified the Veteran of the inability to obtain these records.  38 C.F.R. § 3.159(c)(2) and (e)(1).

He also has been provided VA compensation examinations, including for medical nexus opinions concerning the etiology of his psychiatric disorder and any potential relationship with his military service, as the Board directed when remanding this claim on occasions in years past, both in November 2011 and again in September 2012.  38 U.S.C.A. § 5103A(b)(2); 38 C.F.R. § 3.159(c)(4).  See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The medical nexus opinion most recently obtained in October 2012, following and as a result of the Board again remanding this claim in September 2012 because of the inadequacy of the prior opinion, sufficiently addresses this determinative issue of causation, so another examination and opinion are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA endeavors to provide an examination for a medical nexus opinion in a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate examination and opinion or, at minimum, notify the claimant why they cannot be provided).  The Board determined that the medical nexus opinion obtained in February 2011 was inadequate.  Accordingly, the Board again remanded the claim in September 2012 for the commenting VA physician to once again review the file and provide a supplemental opinion regarding the etiology of any current psychiatric disorder and potential relationship with the Veteran's military service.  In October 2012 the VA physician responded and provided sufficient discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board therefore is satisfied there has been compliance with its remand directives, including this particular directive.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating the Veteran is entitled, as a matter of law, with compliance with a remand directive and that the Board itself commits error in failing to ensure this compliance).  But see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total" compliance with a remand directive).  

In sum, then, it is difficult to discern what additional guidance VA could have provided the Veteran regarding what further evidence he should submit to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA has a reason to remand many, many claims, but is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran).


Pertinent Statutes, Regulations and Cases

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).  According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder NOS, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and 
substance-induced psychotic disorder.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service.  38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, 708 F3d. at 1339 (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a Veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Walker, 708 F3d. at 1336.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  

Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology" (emphasis added).  Id., at 1339.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id., at 1338-40.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Id. at *1338; see also id. at 1336, 1340 (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)).

Consider also that, according to 38 C.F.R. § 3.303(b), if the condition at issue was not "noted" during service, this notion of continuity of symptomatology since service does not apply in that circumstance either.

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  This evaluation generally involves a three-step inquiry.  First, the Board must determine whether the evidence is competent.  See e.g., Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).  Second, the Board must determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Third, the Board must assess the probative value and weight of the evidence in light of the entire record.  Gonzales, 218 F.3d at 1380-81; Baldwin v. West, 13 Vet. App. 1, 8 (1999).

As observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  The Board may therefore discount the probative value of lay evidence if it finds such evidence not to be competent.  See id.; see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  However, the Board may not "categorically" require medical evidence or disregard lay evidence without first assessing its competence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (holding that it was error in a cause-of-death claim to find "categorically" that a medical opinion was required to prove a nexus between the Veteran's service-connected mental disorder and his drowning death, and likewise to reject categorically the claimant's testimony on this issue as not competent simply because she was a lay person); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it).  Importantly, lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability, but this is entirely dependent on the specific type of disability at issue.  See Davidson, 581 F.3d at 1316.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  Lay evidence is competent if it is provided by a person who has first-hand knowledge of facts or circumstances, or conveys matters that can be observed and described by a lay person.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge, such as experiencing pain in his right hip and thigh in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy).  

For example, the Court has held that a lay person is competent to diagnose a disease with "unique and readily identifiable features" such as varicose veins.  Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Similarly, the Court has found a lay person competent to identify tinnitus and flat feet, which are disorders that can be identified based on lay observation alone.  See Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  

However, lay testimony is not competent with respect to determinations that are "medical in nature" or require medical knowledge due to their complexity.  See Barr, 21 Vet. App. at 309.  For example, the Court held that a claimant was not competent to determine whether he had rheumatic fever, which was a more medically complex condition.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).  The Federal Circuit Court has held that lay evidence may be competent and sufficient to establish a diagnosis of a condition in the following circumstances:  (1) when the condition is simple, such as a broken leg, as opposed to when the condition is more complex, such as a form of cancer; (2) when the layperson is reporting a contemporaneous medical diagnosis, or; (3) when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372, 1377 & n4 (Fed. Cir. 2007).

Competent medical evidence, as distinguished from lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1).  Competent medical evidence may include statements conveying sound medical principles found in medical treatises.  Id.  It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  Id.

The competency of evidence differs from the weight assigned to the evidence, which varies according to its credibility and probative value.  See Layno, 6 Vet. App. at 469; accord Rucker v. Brown, 10 Vet. App. 67, 74 1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify.").  

The Board discounts the weight of evidence it finds not to be credible.  See Washington, 19 Vet. App. at 368 (noting that the witness's credibility affects the weight to be given to his testimony). 

In determining whether statements submitted by a Veteran are credible, the Board may consider their internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. at 711, aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").  Further, the Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

Factual Background and Analysis

In deciding this claim, the Board has reviewed all of the evidence in the claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf, certainly not in exhaustive detail.  See Gonzalez v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000).  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claim.  The Veteran should not 

assume that the Board has overlooked pieces of evidence that are not explicitly discussed.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him).  

In his April 2008 NOD, the Veteran claimed that VA had not gotten the whole picture of him and his history because records concerning his service were burned in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, which is a military records repository.  But there are STRs in the file concerning his military service, and there is no indication of any missing or unaccounted for records.  These records include a report of medical history given during his military separation examination in July 1972, when he denied either then having or having had any symptoms associated with a psychiatric disorder.  Objective clinical evaluation also indicated he had normal mental status.  His military service ended the following month, in August 1972.

In a statement in late August 1972, he indicated that he had undergone a separation medical examination within three working days prior to his departure from his place of separation.  He signed a statement attesting that, to the best of his knowledge, there had been no changes in his condition since his last separation examination.

Other pertinent medical records include a report of medical history given in conjunction with an Army Reserves' examination in October 1979 when he reaffirmed that he was in good health and was not taking any medications.  He denied having any type of psychiatric symptoms or illness.  It was also stated that he had a "negative medical history."  Objective clinical evaluation also continued to show normal mental status.

Still additional medical evidence in the file reflects evaluation and treatment for psychiatric purposes beginning in 1999.  The VA treatment records between 1999 and 2009 show a principal psychiatric diagnosis of adjustment disorder with anxious mood.  In an intervening June 2007 communication the Veteran stated that he had received treatment for the disorder from VA in the early 1980s.  

VA treatment records dated between July and October 1999 include lab results dated from 1995 and 1997 indicating he had received treatment for some disorder prior to the earliest VA treatment records in the claims file.  He stated in his May 2008 Substantive Appeal (on VA Form 9) that the RO had not obtained all of his relevant VA treatment records, particularly those dated in September 2006 concerning his ongoing evaluation and treatment at the local VAMC in Jackson.  The Board resultantly remanded this claim in November 2011, partly to try and obtain these additional records, but ultimately to no avail.  This VAMC responded in February 2012 that there are no records pertaining to the Veteran at that facility.

Other relevant evidence includes the report of a psychiatric examination accorded the Veteran by VA in November 2011.  The examiner stated the Veteran did not have a diagnosis of PTSD.  What was diagnosed, instead, was adjustment reaction, which the examiner concluded was unlikely to have occurred during, or have been caused by, or related to the Veteran's military service because there were no complaints of mental health symptoms during his service and the onset of symptoms (according to his report) was in the 1980s.  The examiner indicated he had reviewed the claims file in making these determinations.  The Veteran had first reported experiencing mental health related symptoms in the 1980s.  He stated "I'm not crazy I don't think."  But it was also pointed out there was no treatment for or mention of mental illness during his service.  The examiner determined the Veteran did not meet the full criteria for a diagnosis of PTSD, and that the only symptom he exhibited was anxiety.

But the wording of that opinion suggested that, despite the Board's explicit instruction that the examiner not rely exclusively on the lack of any documented psychiatric treatment while in the military and post service, until the 1980s, as sole reason for concluding the Veteran necessarily as a consequence did not have a psychiatric disorder during those earlier years, possibly dating back to his service, the examiner nonetheless had made this mistake in judgment.  Notably, in providing that opinion, there was no mention or reference to the Veteran's lay complaints of having experienced relevant symptoms during those earlier years dating back to his service.

As already alluded to, in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  So when deciding claims, VA adjudicators cannot determine lay evidence, if competent, lacks credibility merely because it is unaccompanied by contemporaneous medical evidence such as actual treatment records.  This is because the essence of 38 C.F.R. § 3.303(b) is continuous symptoms since service, not continuous treatment for these symptoms since service, assuming the condition at issue was documented ("noted") in service and now, according the very recent holding in Walker, is among the conditions identified in 38 C.F.R. § 3.309(a) as "chronic".

That said, an anxiety disorder is a type of neurosis, not a psychosis, so not the type of "chronic" condition under § 3.309(a) [and § 3.384] qualifying for this continuity of symptomatology pleading and proof exception under § 3.303(b).  Moreover, the Federal Circuit Court went on to indicate in Buchanan that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  The Board therefore may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed disorder).

In cases involving combat, VA is prohibited from drawing an inference from silence in the STRs. But in cases where this inference is not prohibited 
[i.e., non-combat scenarios], the Board may use silence in the STRs as contradictory evidence if the alleged injury, disease, or related symptoms ordinarily would have been recorded in the STRs.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  See also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (For non-combat Veterans providing non-medical related lay testimony regarding an event during service, Buchanan is distinguishable; the lack of documentation is service records must be weighed against the Veteran's statements.).  In this circumstance, the Board must make two preliminary findings in order to rely on this negative inference (see Kahana):

(a) First, the Board must find that the STRs appear to be complete, at least in relevant part.  If the SMRs are not complete in relevant part, then silence in the STRs is merely the absence of evidence and not substantive negative evidence.  [See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).]

(b) If the STRs are complete in relevant part, then the Board must find that injury, disease, or related symptoms ordinarily would have been recorded had they occurred.  In making this determination, the Board may be required to consider the limits of its own competence on medical issues.

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court has jurisdiction by virtue of an NOD satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination.  VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination.  See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).

A medical opinion is considered adequate where it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so the Board's evaluation of the claimed disability will be a fully informed one.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than state a conclusion that the etiology of a medical condition, for example, is unknown or unknowable, the conclusion must be supported with sufficient rationale and explanation.  Stefl, 21 Vet. App. At 124.  The Court in Stefl explained some of the types of information that an examiner might factor or discuss in his or her opinion, even if ultimately inconclusive, such as why the examiner finds cited studies persuasive or unpersuasive, whether the Veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested itself in an unusual manner.  And, to reiterate, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007).

The Board therefore concluded the VA compensation examination and medical nexus opinion in November 2011 were inadequate because the opinion did not address all of the inquiries and considerations highlighted in the Board's remand earlier that same month, particularly, again, in terms of considering the Veteran's claim of having experienced continuous symptoms since his military service, even if not documented by actual treatment records during his service or since, that is, prior to the 1980s.  And inasmuch as there was not this required consideration, there was not compliance with this remand directive.  See again Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", even if not "exact", compliance with a remand directive).

Because of the need for this supplemental comment, in October 2012 the examiner again reviewed the claims file for the purpose of providing an addendum opinion addressing the Veteran's lay statements of having experienced psychiatric symptoms ever since service.  The examiner again concluded the Veteran's claimed psychiatric disorder was less likely than not (less than 50 percent probability) incurred in or caused by his military service.  The examiner questioned the veracity of the Veteran's lay statements regarding the onset of his mental health difficulties in service, although this is a factual rather than medical determination, so a decision ultimately for the Board.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (The Board must make an express credibility finding regarding lay evidence).  This examiner did not find the Veteran's recounted lay history "persuasive", maintaining "the simple stating of recall of an event lacks some persuasive (UNCLEAR) per se.  This is especially true when no supporting evidence or in fact contrary evidence is present, as in this case."

This examiner therefore seemingly is suggesting there should have been earlier objective indication or manifestation of psychiatric-related symptoms in this instance, both rather immediately during service or certainly prior to the 1980s (keeping in mind the Veteran's service ended in 1972).  This examiner also cites the intervening occasions when the Veteran did not have any relevant complaints, in fact, to the contrary, outright denied having experienced any mental health related symptoms whatsoever, as further reason for completely disassociating his current mental illness (anxiety included) from any disease, injury or event during or coincident with his military service.  To establish his entitlement to service connection, there not only needs to be confirmation he has the claimed disability, but also attribution of this disability to his military service, which in this particular instance there clearly is not, only instead medical evidence steadfastly refuting this notion.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

As already discussed, the STRs do not reflect the Veteran had any psychiatric related problems or issues during his service, including involving anxiety.  And despite is contentions otherwise, his STRs appear to be complete, certainly in relevant part.  Although he has referred to having received treatment during his service for mental health related issues, there are only instead records showing he made complaints relative to other unrelated medical problems.  If he indeed had been experiencing psychiatric-related symptoms, certainly of the severity now alleged, it stands to reason he would have voiced his complaints and that there would be some objective documentation of them, particularly given the fact that he was seen on several occasions for other unrelated medical issues, so had opportunity.  Additionally, he denied any psychiatric-related symptoms or history during his military separation examination in July 1972, and he later reiterated in August 1972 that there had been no change in his overall health or well-being.

He also subsequently was provided an examination for reserve enlistment purposes in July 1979, and he again denied ever having had or then having any mental health related symptoms.  Moreover, objective clinical evaluation at that time revealed normal psychiatric status.

He also more recently had a VA Agent Orange protocol examination in April 1991.  And while he had various complaints, he again did not make any reference whatsoever to any mental health related concerns.  Also, objective clinical evaluation did not identify or reveal any psychiatric disorder, much less as a result or consequence of his military service.

The VA examiner in November 2011 had access to the entire claims file for the relevant medical and other history.  In the addendum comment made in October 2012, he determined the Veteran's current psychiatric disorder was less likely than not related to his military service.  He found no supporting evidence for the Veteran's assertion that it is, and this type of disorder at issue is not the type of "simple" condition that is readily amenable to probative lay comment regarding its diagnosis and etiology.  See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue).  In this particular instance the Board did indeed obtain a medical nexus opinion, but it is entirely unfavorable to the claim.

The Veteran has given varying accounts of just how long he has experienced mental health related symptoms, which tends to undermine his credibility, and the several occasions in years past when he specifically denied having any such symptoms or mental impairment further undermines his credibility.  Contemporaneous medical findings are entitled to a lot of probative weight, especially as compared to evidence or testimony to the contrary offered many years later, long after the fact.  Struck v. Brown, 9 Vet. App. 145, 155-56 (1996).  See also Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report regarding the cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481   (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).


The evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule.  38 U.S.C.A. §§ 5107 (b); 38 C.F.R. § 3.102.  Instead, the preponderance of the evidence is against the claim, so it must be denied.


ORDER

The claim of entitlement to service connection for an acquired psychiatric disorder, including anxiety disorder NOS, is denied.



	                        ____________________________________________
	KEITH W. ALLEN
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs