Citation Nr: 1314942	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  10-45 024	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel


INTRODUCTION

The Veteran had active service from March 1954 to June 1954.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.

In October 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.

The Veteran's claim was remanded for additional development by the Board in December 2012.  The requested development having been completed, the matter again is before the Board.

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.

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).


FINDING OF FACT

The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability that is etiologically related to a disease, injury, or event in service.



CONCLUSION OF LAW

An acquired psychiatric disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless. 

VCAA letters dated in January 2010 and February 2013 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letters also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2011) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ fully explained the issue on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claim that were lacking to substantiate the claim for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claim.  Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail.  See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  

In this case, the Veteran has been continuously represented by an experienced state service organization and has submitted argument in support of his claim.  These arguments have referenced the applicable law and regulations necessary for a grant of service connection.  Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case.  As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran.  Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and certain VA medical records are in the file.  In that regard, the Board acknowledges that the Veteran claimed hospitalization at the VA Medical Center (VAMC) in Houston, Texas in approximately 1954.  The RO contacted the Houston VAMC and the facility indicated that no records from that time period could be located.  Evidence suggests, however, that the Veteran may have been mistaken as to the time period of treatment, as hospital records from 1956 from the Houston VAMC have been associated with the claims file and the Veteran denied treatment at the Houston VAMC after 1954.  In either case, the Board concludes that a remand to seek further records would serve no useful purpose in light of the Houston VAMC's negative response regarding the claimed 1954 records.  The Veteran has not identified private medical records that he wished VA to obtain.  In that regard, the Board's December 2012 remand directed that the Veteran be sent a letter requesting that he provide information on private and/or VA treatment providers.  The Veteran was provided that letter in February 2013; however, there is no indication in the claims file that the Veteran responded.  The Veteran has at no time otherwise referenced outstanding records that he wanted VA to obtain or that he felt was relevant to the claim.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See 38 C.F.R. § 3.159(c)(4).  In this case, pursuant to the December 2012 Board remand the Veteran was afforded a VA examination in February 2013.  The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, but did diagnose major depression, recurrent and moderate.  As to etiology, the examiner concluded that it was less likely than not that the Veteran's current psychiatric disability was related to military service.  In reaching that decision, the examiner considered the Veteran's reported history, his current symptoms, review of the available private and VA treatment records, and a physical examination.  The examiner provided a sufficient rationale for the opinions expressed.  Based on the foregoing, the Board finds the February 2013 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim.

Based on the February 2013 VA examination report, the February 2013 letter to the Veteran, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its December 2012 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  In the instant case, however, there is no presumed service connection because the Veteran was not diagnosed with psychosis within one year of separation from service and, indeed, his current diagnoses are not categorized as psychoses.  Notwithstanding, the Board will consider whether service connection is otherwise warranted for his claimed disabilities on a direct basis.

In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service."  Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

The Veteran contends that he has an acquired psychiatric disability as a result of his military service.  Specifically, the Veteran alleges he underwent painful experimental testing on his right hand and arm while hospitalized during military service.  In addition, he claims that after service, while receiving treatment for dental problems, he witnessed another patient die while waiting for treatment.  

The Veteran's service treatment records include a normal March 1954 enlistment examination; however, approximately one week later an April 1954 enlistment examination noted ulnar and median nerve paralysis, right hand, as well as a flexion deformity of the right hand and decreased grip strength.  Significantly, the examination report also noted that the Veteran had an antisocial personality.  The Veteran was referred to the neurology clinic, where he was hospitalized for further extensive evaluation of the ulnar and median nerve paralysis of the right hand, present since a gunshot wound in January 1952.  An associated record noted that the Veteran would "probably meet an EPTS Board for discharge from the service under provisions AFM 35-4 for a peripheral nerve condition which at the present time is disqualifying for continued military duty."  

A June 1954 Clinical Abstract noted that the Veteran had been admitted to the Neurology Ward for evaluation and physical therapy prior to presentation before the Medical Board.  The record included the Veteran's reported history that in November 1951 while hunting he had shot himself through the right upper arm.  The Veteran's in-service treatment for the associated problems was undertaken to determine the feasibility of retention and, to that end, he was provided intensive physical therapy.  The therapy, however, afforded no recovery of function of the right hand.  In light of the failure of physical therapy, the Clinical Abstract recommended discharge from service due to the incapacitating right upper extremity condition.  

Later in June 1954, the Veteran was separated from service due to this preexisting physical defect.  The records do not note any associated psychiatric symptoms or otherwise provide additional analysis regarding the antisocial personality noted in April 1954.

After service, a June 1956 VA record noted hospitalization for neuropathy of the right median nerve due to a gunshot wound.  There were no reports of associated or unassociated psychiatric treatment.  The next treatment record was from February 1976, at which time the Veteran reported eye problems, but without any psychiatric problems discussed.

The Veteran has not reported any subsequent VA treatment for psychiatric problems and no private psychiatric treatment records have been associated with the claims file, despite multiple notices to the Veteran (including in February 2013) requesting that he either provide such information directly to VA or authorization for VA to seek such records from any private treatment provider.

As noted above, the Veteran was afforded a VA examination in February 2013.  The examiner noted review of the claims file.  The Veteran reported a two week period of hospitalization in the psychiatric unit in 1954 at the Houston VAMC, during treatment for hand problems.  The examiner noted, however, that such records had not been obtained and that records showed subsequent treatment at the Houston VAMC - as discussed above.  In addition, the Veteran claimed that he had been prescribed Elavil in the 1960s, but the Veteran denied any idea why he had been sent for psychiatric evaluation.  He denied any further treatment.  The Veteran reported that his traumatic stressors were in-service painful treatment in the hospital for his hand and, after service, watching a man die in the dental waiting area while waiting to get a tooth extracted.  The examiner noted that neither reported stressor was sufficient to support the diagnosis of PTSD and that the Veteran had not been exposed to a traumatic event.  The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, but did diagnose major depression, recurrent, moderate.  The examiner opined that it was less likely than not that the current depression was medically related to service.  The rationale was that the Veteran had no mental health treatment since the 1960s; that the Veteran was troubled and disappointed about being discharged due to his hand and currently ruminates about the past; that records were absent for any mental health treatment; and that there was no reported incident in service of sufficient severity to have caused depression over 50 years later.

Having reviewed the complete record, and as will be explained fully below, the Board concludes that the preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disability that was incurred in, or is otherwise related to, his military service. 

As to the Veteran's claimed PTSD, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal.  See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  While the Board recognizes the Veteran's sincere belief in his claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran meets the DSM-IV criteria for a diagnosis of PTSD during any period of his appeal, as required by VA regulations.  Indeed, as noted above and discussed below, the record reflects that the February 2013 VA examiner specifically found that the Veteran did not meet the criteria for a diagnosis of PTSD, despite considering the Veteran's assertions regarding symptomatology.  No other medical treatment professional of record has diagnosed the Veteran with PTSD.

As to the Veteran's diagnosed depressive disorder, the Board finds the February 2013 VA examination report of significant probative value.  The examining physician considered the Veteran's representations, the claims file, and conducted a psychiatric examination prior to rendering her opinions.  Further, a complete and thorough rationale is provided for the opinions expressed.  As noted, the examining psychologist considered the Veteran's reports that his current depression and other psychiatric symptoms were due to painful in-service treatment of the Veteran's right hand and arm.  The examiner concluded, however, that based on the service treatment records and other evidence of record that the Veteran's current major depression was not related to his military service.  As outlined above, the examiner provided multiple bases for the opinion rendered.  The examiner's conclusions are fully explained and consistent with the evidence of record.  

The Board has considered the Veteran's assertions that his current psychiatric disability was caused by painful experimental testing performed on him while hospitalized in service.  The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing depression or other psychiatric symptoms, and his assertions in that regard are entitled to some probative weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Board further notes that not all medical conditions require medical expertise to diagnose or otherwise relate to a particular incident.  However, in this case, the disability at issue is a psychiatric disability, involving the complex inner workings of the mind.  This disability is unlike a broken leg or dislocated shoulder, which is readily observable by a lay person.  Given the Veteran's lack of demonstrated medical expertise in psychiatric disabilities, the Board concludes that his statements regarding any such link between the in-service painful treatment of the right hand and a current depressive disorder are significantly less probative than the conclusions of the February 2013 VA examiner.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Moreover, the Board finds the Veteran's contentions particularly problematic, given that he has reported on multiple occasions that he is unsure why he was evaluated for psychiatric problems during service.  Thus, it appears that the Veteran was unaware of any unusual or abnormal psychiatric symptomatology during service either attributable to his right upper extremity treatment or otherwise.  Given this absence of a continuity of psychiatric symptomatology from the Veteran's military service, the Board affords the Veteran's current representations associating in-service right hand treatment and current depressive disorder very little probative weight.

In summary, the most probative evidence of record rejected any association between the Veteran's psychiatric disability and his military service, to include painful treatment for the right hand.  In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine 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

Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and PTSD, is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs