Citation Nr: 1314258 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-38 089A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disorder, primarily diagnosed as schizophrenia, chronic residual type and major depressive disorder with psychotic features. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The appellant had service in the Army National Guard and that he underwent active duty for training from August 5, 1988 to November 4, 1988. In February 1993, the RO denied the appellant's claim of entitlement to service connection for a nervous condition, claimed as major depression. In October 1994, the RO confirmed and continued that denial. The appellant was notified of each of those decisions, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal. Therefore, those decisions became final under the law and regulations then in effect. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. § 20.1103 (1994). In October 2006, the appellant requested that his claim be reopened. However, in December 2006, the RO confirmed and continued the prior denials. The appellant disagreed with that decision, and this appeal ensued. In January 2012, the Board of Veterans' Appeals (Board) found that the appellant had submitted new and material evidence to reopen his claim and remanded the case for further development. Specifically, the Board directed the VA Appeals Management Center (AMC) to have several documents on file translated. The Board also directed the AMC to schedule the appellant for an examination to determine the nature and etiology of any psychiatric disorder found to be present. Following the requested development, AMC confirmed and continued the denial of entitlement to service connection for a psychiatric disorder. Thereafter, the case was returned to the Board for further appellate action. FINDINGS OF FACT 1. The appellant's only period of service consisted of active duty for training from August 1988 to November 1988. 2. A psychiatric disorder, primarily diagnosed as paranoid schizophrenia and a major depressive disorder with psychotic features, was first manifested after the appellant's active duty for training; and the preponderance of the competent, probative evidence of record is against a finding that it is in any way related thereto. CONCLUSION OF LAW A psychiatric disorder, primarily diagnosed as paranoid schizophrenia and a major depressive disorder with psychotic features, is not the result of disease or injury incurred in or aggravated by service. REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the appellant's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In August 2006, VA received the appellant's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the appellant of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.400, and Part 4. Following the notice to the appellant, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the appellant's service treatment and personnel records; records reflecting his treatment from January 1989 through January 1994 by Department of Health of the Commonwealth of Puerto Rico (Department of Health); statements, dated in November 2006, reflecting the appellant's treatment J. G. M., M.D. and J. M. N., M.D., since April 1989; and the appellant's records reflecting his receipt of disability payments from the Social Security Administration. In January 2013, VA examined the appellant to determine the nature and etiology of any psychiatric disorder found to be present. The examination reports show that the examiner reviewed the appellant's medical history, interviewed and examined the appellant, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the appellant an opportunity to present additional evidence and argument at a hearing on appeal. However, to date, he has declined to accept that offer. In sum, the appellant has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the appellant that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The appellant contends that his psychiatric disorder had its onset when he sustained a nervous breakdown during his basic combat training in service. He states that he has had various psychiatric manifestations since that time and that service connection is, therefore, warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish 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. § 1131; 38 C.F.R. § 3.303. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Active military service includes active duty, any period of active duty for training ("ACDUTRA") during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training ("INACDUTRA") during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C.A. § 101(22), (23); 38 C.F.R. § 3.6(a), (c), (d). Every individual shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2003). VA bears the burden of proof to rebut the presumption. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Generally, "[i]n order to qualify for VA benefits, a claimant . . . or the party upon whose service the claimant predicates the claim . . . . [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000). Accordingly, in order for the appellant to establish his entitlement to disability compensation benefits, he must first establish his status as a veteran. See Aquilar v. Derwinski, 2 Vet. App. 21, 23 (1991). The statutory definition of "veteran" makes a clear distinction between those who serve on active duty and those who only serve on active duty for training. Although service on active duty, alone, is sufficient to meet the statutory definition of "veteran," service on active duty for training, without more, will not suffice to give one veteran status. 38 U.S.C. §§ 101(24) (A) and (B). An individual who served only on active duty for training will be considered a "veteran" if that individual suffers "from a disease or injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24)(B). Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Because of this distinction, an individual seeking VA disability compensation based only on active duty for training must establish a service-connected disability in order to achieve veteran status and to be entitled to disability compensation benefits. Paulson. For certain disabilities, such as psychoses, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of a veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Where, as in this case, however, the claimant's only service consists of active duty for training, service connection on a presumptive basis is not available. Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991); see also, Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The foregoing law and regulations notwithstanding, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A review of the evidence, such as the report of the February 2013 VA examination, shows that the appellant has a psychiatric disorder, primarily diagnosed as schizophrenia, chronic, residual type and major depressive disorder with psychotic features. Therefore, the salient question is whether there is a nexus between that disorder and any disorder or event in service. The Board acknowledges that the appellant is competent to give testimony about what he experienced in and after service. For example, he is competent to report that he had bilateral hip pain in and since service. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence if contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the appellant. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). The appellant's service treatment records, including the report of his April 1988 service entrance examination are negative for any complaints or clinical findings of a psychiatric disorder of any kind. Such a disorder was not manifested until January 1989, when he received emergency room treatment for complaints of nervousness, agitation, impaired sleep, and a cloudy mind. It was noted that his wife was afraid of him and that he had thrown her down the stairs and threatened her with a knife. He continued to receive treatment for psychiatric complaints, such as depression and suicidal ideation, through November 2006. The diagnosis was major depressive disorder, with psychotic features; and in November 2006, one of his treating physicians, J. G. M., M.D., suggested that it was the result of traumatic experiences in the army. Despite that suggestion, however, there is no evidence in the appellant's service records that he sustained or was a participant in any traumatic event, and the Board notes that Dr. M. did not provide any rationale for her opinion. The lack of support in the service records and the lack of rationale significantly reduce the probative value of Dr. M.'s opinion. Nevertheless, her report combined with the appellant's contentions warranted a VA psychiatric examination. The VA examination was performed in January 2013, and the diagnoses were schizophrenia, chronic, residual type and major depressive disorder with psychotic features. The examiner opined that it was less likely than not that such disorders were incurred in or caused by a claimed inservice injury, event, or illness. The VA examiner stated that there was no evidence of psychiatric complaints, findings, or treatment during service and no objective evidence of a nervous breakdown anywhere in the claims folder. Indeed, the VA examiner noted that there were no psychiatric complaints or findings until after service. Unlike Dr. M., the VA examiner reviewed the appellant's claims folder and provided rationale for her decision. Thus, the VA examination and resultant opinion were more full and complete than that of Dr. M. Accordingly, the Board finds the VA examiner's report to have greater probative value. The only other evidence of a nexus comes from the appellant. However, he has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay evidence does not constitute competent medical evidence and lacks probative value. That is not to dismiss the appellant's contentions. Rather, it is simply a matter in which the Board finds the preponderance of the evidence, including the VA examiner's opinion, of greater probative value. Absent evidence of a chronic, identifiable psychiatric disorder in service or a nexus between any event in service and the post-service schizophrenia or major depressive disorder, the appellant does not meet the criteria for service connection for a psychiatric disorder. Therefore, service connection is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the appellant's Social Security records. Although they show that he received disability benefits for a psychiatric disorder, they are relevant to the level of impairment caused by that disorder, rather than its etiology. As such, they are of little, if any, probative value with respect to the question of service connection. The Board has, also, considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the appellant's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a psychiatric disorder, primarily diagnosed as schizophrenia, chronic residual type and major depressive disorder with psychotic features, is denied. ____________________________________________ SARAH B. RICHMOND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs