Citation Nr: 1314950 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-12 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In June 2012, the Veteran testified at a Travel Board hearing at the RO in Newark. The hearing transcript has been associated with the claims file. The Board remanded this matter in October 2012 for additional development. The development ordered in the October 2012 remand included obtaining VA treatment records and affording the Veteran a VA examination to ascertain the nature and etiology of any currently diagnosed acquired psychiatric disorder. The requested development has been completed and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes in October 2012, the Board referred the issue of whether new and material evidence had been submitted to reopen a claim of service connection for PTSD. By rating action in February 2013, service connection was granted for PTSD. FINDINGS OF FACT 1. A psychosis did not manifest during service or within a presumptive period after service. 2. The Veteran is not shown by competent and probative medical evidence to have an acquired psychiatric disorder, other than PTSD, which is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2006. That letter fully addressed the requisite notice elements. The letter informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The letter was submitted to the Veteran prior to the March 2009 rating decision on appeal. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service VA treatment records. The RO attempted to obtain medical records from the East Orange and Lyons VA Medical Centers from 1978 to 1982, as directed in the Board's October 2012 remand. A negative response was received in December 2012. In a January 2013 Memorandum, the RO summarized the efforts to obtain VA treatment records, determined that all efforts had been exhausted and that further attempts would be futile and made a formal finding of unavailability of records. Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain such records would be futile. See 38 C.F.R. § 3.159(c)(1). Additional efforts to obtain medical records from the East Orange and Lyons VA Medical Centers for the time period between 1978 and 1982 are not necessary in light of the December 2012 response. The Veteran was afforded a VA examination in November 2012. 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 November 2012 VA examination considered all the pertinent evidence of record, including the Veteran's statements and the claims file. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis of Claim A. Legal Criteria In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship of nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Additionally, VA regulations provide that psychosis will be presumptively service connected if it manifests to a compensable degree within one year after discharge. See 38 C.F.R. §§ 3.307, 3.309 (2012). For these purposes, "psychosis" includes brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. § 3.384 (2012). In this case, the evidence of record does not reflect that the Veteran has been diagnosed with a psychosis as defined by VA regulation. The acquired psychiatric disorders that have been diagnosed during the appeal are not "psychoses" as defined by VA regulation and are therefore not "chronic diseases" listed under § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claim for service connection an acquired psychiatric disorder. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). B. Analysis The Veteran had active duty service from November 1965 to November 1967. Service treatment record do not reflect any complaints or findings of an acquired psychiatric disorder. A pre-induction examination in July 1965 reflects that the Veteran denied depression or excessive worry. The pre-induction examination noted a normal psychiatric evaluation. The Veteran was not diagnosed with an acquired psychiatric disorder during service. The report of separation examination dated in October 1967 reflects a normal psychiatric evaluation. As noted above, service connection is currently in effect for PTSD. The evidence of record does not show that a psychosis manifested to a compensable degree within one year of separation from service. Accordingly, service connection for a psychosis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Post-service VA medical records dated from between September 2006 and September 2009 show diagnoses of major depressive disorder, depression and adjustment reaction. Those records show treatment for depression and adjustment disorder with mixed mood and include impressions of major depressive disorder, rule out PTSD and recurrent major depressive disorder. VA treatment records dated in September 2006, December 2007 and December 2008 reflect diagnoses of major depressive disorder. VA mental health records dated in 2008 and 2009 reflect that the Veteran was seen in psychotherapy for depression with adjustment disorder and mixed mood. A May 2012 report regarding PTSD Diagnostic Scale of a private psychologist, A.T., noted a diagnosis of PTSD. Pursuant to the Board's October 2012 remand, the Veteran was afforded a VA examination in November 2012. The VA examiner was asked to identify any acquired psychiatric disorders and provide an opinion regarding whether such acquired psychiatric disorders are etiologically related to service. The VA examiner rendered an Axis I diagnosis of PTSD. No other Axis I diagnosis was noted. The examiner indicated that symptoms of PTSD included depressed mood, anxiety and suspiciousness. The examiner indicated that the Veteran did not have more than one mental disorder. The examiner reviewed the claims folder and discussed the treatment records which noted treatment for depression. The VA examiner opined that PTSD is related to the stressor of mortar attacks in service. The VA examiner indicated that PTSD is accompanied by mild psychotic (paranoid) features. The VA examiner opined that the Veteran's mild psychotic symptoms do not meet the criteria for a full psychotic disorder. The evidence of record does not establish that an acquired psychiatric disorder other than PTSD is related to service. The November 2012 VA examination report concluded that PTSD was the only Axis I diagnosed mental disorder of the Veteran. This conclusion was made after a review of the claims folder and the examiner included a discussion of the treatment records for psychiatric symptoms. To the extent that symptoms of depression and anxiety were noted on that examination or in previous treatment records, the examiner clearly concluded that that Veteran had only one diagnosed mental disorder, which was PTSD. The Board finds that the November 2012 opinion is the most probative and competent medical opinion regarding the current diagnosis of an acquired psychiatric disorder as it was based on an examination of the Veteran and review of the entire record and included a discussion of the pertinent facts. The weight of the evidence does not show that the Veteran was diagnosed with an acquired psychiatric disorder during active duty service or that a psychosis manifested during service or within a year after discharge. The weight of the competent and probative evidence of record does not demonstrate that that Veteran has a current acquired psychiatric disorder, other than PTSD, that is etiologically related to service. In reaching this determination, the Board has considered the Veteran's statements . At the Board hearing, the Veteran testified that he started having problems after he was married in 1969. He testified that he was hospitalized in 1982 for treatment of paranoid schizophrenia. The Veteran is competent to describe what he experienced, such as having problems after service and being hospitalized. The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the November 2012 VA examination determined that the Veteran does not have an acquired psychiatric disorder, other than PTSD, which is related to service. There is no other competent medical evidence of record linking an acquired psychiatric disorder, other than PTSD, to service. As a result, the Board finds the evidentiary record does not provide competent, credible, and probative evidence of a nexus between service and a current acquired psychiatric disorder, other than PTSD. As indicated above, service connection is currently in effect for PTSD. For these reasons, the Board finds that service connection for an acquired psychiatric disorder other than PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Service connection for an acquired psychiatric disorder other than PTSD is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs