Citation Nr: 1316861 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 12-23 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2010 RO rating decision which denied entitlement to service connection for depression. This case was before the Board in December 2012. After reviewing the record, the Board remanded the case to have him undergo a VA compensation examination to assist in making the necessary determinations. A VA psychiatrist examined the Veteran in March 2013 and provided the requested medical opinion. The opinion is responsive to these determinative issues of the appropriate diagnosis and concerning whether there is any relationship or correlation between this diagnosis and the Veteran's military service. Hence, there was compliance with this remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating a Veteran is entitled, as a matter of law, to compliance with a remand directive, and that the Board itself commits error in failing to ensure this compliance). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDINGS OF FACT 1. The Veteran's service treatment records (STRs) are unavailable; however he was not in combat, did not have overseas duty, nor has he reported any symptoms, findings, treatment, or psychiatric episodes suggestive of a psychiatric disorder that occurred during military service; or for an extended period of time after his military service had ended. 2. The weight of the medical and other evidence of record does not alternatively show his anxiety disorder is related or attributable to his military service, including to any incident during his service at the time of the Korean Conflict. CONCLUSION OF LAW An acquired psychiatric disorder, including anxiety, was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist him/her in obtaining; and (3) that he/she is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These notice requirements apply to all elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating and (5) effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this case, a letter satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in January 2010, prior to initially adjudicating his claim in the February 2010 decision at issue, so in the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). The letter informed him of the evidence required to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence. The letter also complied with Dingess by, as well, discussing the "downstream" disability rating and effective date elements of the claim. So he has received all required VCAA notice. Moreover, he has not alleged any VCAA notice error. As explained in Shinseki v. Sanders, 129 S. Ct. 1696 (2009), as the pleading party, he, not VA, has this burden of proof of showing there is a VCAA notice error in timing or content and, above and beyond this, that it is unduly prejudicial-meaning outcome determinative of his claim. Thus, absent this pleading or showing, the duty to notify has been satisfied. VA also has satisfied its duty to assist him with this claim by obtaining all potentially relevant evidence. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. The RO and AMC obtained his private medical records, VA outpatient records and the reports of his VA compensation examinations. The RO also attempted to obtain his STRs. In July 2008, the National Personnel Records Center reported that the Veteran's STRs, as well as reports from the Army Surgeon General's Office, had been destroyed in a 1973 fire at the Center. As explained below the Board remanded the case in order to obtain additional information, however, the Veteran failed to respond. While VA has a statutory duty to assist the veteran in developing evidence pertinent to a claim, the veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Nevertheless, in a case, as here, where a claimant's STRs are unavailable through no fault of his, there is a heightened obligation for VA to provide reasons or bases for any adverse decision rendered without these records and to carefully consider applying the benefit-of-the-doubt doctrine. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which STRs are presumed destroyed includes the obligation to search for alternative records). But missing records concerning the Veteran's service, while indeed unfortunate, do not, alone, obviate the need for him to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently alleged condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare, supra. In other words, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). Cf. Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996); Arms v. West, 12 Vet. App. 188, 194-95 (1999). The Board also had the Veteran undergo another VA compensation examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159(c)(4). And, as already alluded to, the examiner both clarified the present diagnosis and provided the necessary comment on its etiology, including especially in terms of whether it is related or attributable to the Veteran's military service versus other factors or causes. So in having him examined for the opinion on these determinative issues, there was compliance with this remand directive in further developing this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board therefore finds that no further assistance with this claim is required. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). General Statutes, Regulations and Precedent Cases Governing Claims for Service Connection 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, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to direct service connection for the claimed disability, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability-or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Also, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Diseases initially diagnosed after service 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the competency, credibility, and resultant probative value of evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court/CAVC) similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Entitlement to Service Connection for a Psychiatric Disorder First addressing the question of current disability, private and VA records reflect current diagnoses of anxiety disorder. In considering the second element of the Shedden analysis (evidence of in-service incurrence or aggravation or a relevant disease or an injury), the Veteran served on active duty in the military from April 1953 to April 1955. As noted above, his STRs are unavailable. The Veteran has not reported that he received psychiatric care during military service. In fact, has offered very little in terms of any complaints, symptoms, clinical findings, or diagnosis regarding a psychiatric disorder during his military service. In December 2010, the Veteran submitted NA FORM 13055, Request for Information Needed to Reconstruct Medical Data. The Veteran completed his current information and signed the document, and in a separate document (VA Form 21-4138), he reported information concerning a claim for disability other than a psychiatric disorder. With respect to his psychiatric disorder, he did not identify the nature of the illness for which he had sought treatment in service, nor did he indicate the dates of that treatment, whether he received inpatient or outpatient treatment, the organization to which he had been assigned, or the name and location of the medical facility where he had been treated. The Board remanded the case, in order to obtain additional information in an attempt to reconstruct his service and medical data. However, the Veteran failed to respond to a December 2012 request by the AMC to help him obtain additional statements and medical evidence, in order to substantiate his claim. In fact, in reviewing the post-service history, there is no evidence of a psychiatric disorder, until 2003. VA obtained evidence from Dr. G. L. R. which reflects the Veteran's treatment for anxiety since December 2003. This is approximately 48 years, (nearly 5 decades) after service discharge. The Board realizes that the Veteran reported that he began receiving treatment from this physician in 1970; however, this physician only supplied records that dated to 2003. Furthermore, the Veteran did not respond when the AMC attempted to help him obtain any records from this time period. Regardless, even if he did begin treatment in 1970, this is still an extended time after the end of his military service in 1955. The Board acknowledges, the mere fact that there is no documentation of these conditions for so long after service is not altogether dispositive of this claim, but it is nonetheless probative evidence to be considered in deciding his claim and may be viewed as evidence against it. See Maxon v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Ultimately, the Board must consider all the evidence relevant to the claims, 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). Furthermore, in considering the third element of the Shedden analysis as it pertains to the requirement of a nexus or link between the current psychiatric disability and an event, injury or disease in service, pursuant to the Board's December 2012 remand, a VA examination was conducted the same month. The psychologist reviewed the medical and service records, then interviewed and evaluated the Veteran. The Veteran reported that his MOS during service was transportation. He transported officers to the field. He reached the rank of E-3. He denied any disciplinary action while in service. He also denied heavy or problematic alcohol use or drug use during his military service. He denied being stationed overseas or exposure to any combat. He described a left knee injury but otherwise did not refer to any psychiatric symptomatology during service. After service, he worked at a steel mill for 8 years, sawmill until an injury, and then an implement company for 16 years until it shut down (at this time he was drinking heavy), and then another implement company for 2 years until it went bankrupt, and then the city water company until 1998. He took off 2 years and then worked for the city for approximately 3 years. He indicated that he had a positive relationship with his co-workers and employers. He denied current alcohol use . After the death of one of his sons, he reportedly drank a pint of vodka daily for 2 years and then switched to 6-12 beers daily for a period of 10 years. However, he has not consumed alcohol for over 40 years. He denied use of illicit substances. In describing his current symptoms, he indicated memory loss and being jittery. The diagnosis was anxiety disorder, not otherwise specified (NOS). In a March 2013 addendum, the psychologist concluded that it was less likely (less than 50/50 probability) than not that his anxiety disorder is caused or is the result of his military service. He again noted that the Veteran denied being stationed overseas or any exposure to combat. The psychologist concluded that the current anxiety and distress is most likely age-related matters including age-appropriate cognitive decline. This causes a mild level of distress. The adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if, as here, the expert fairly considered any material evidence that may have been supportive of the Veteran's position. See Wray v. Brown, 7 Vet. App. 488, 493 (1995). The examiner's opinion is based on reasonable medical principles that are supported by the evidentiary record and, as importantly, contained discussion of the underlying rationale, which is where most of the probative value is derived, not from mere review of the claims file. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (wherein the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims file). In this case, it is not only the lack of the required proof of relevant treatment or symptoms in service, but rather, the absence of any cogent evidence establishing disability as a result or consequence of his military service. In sum, the Veteran does not allege and there is no evidence of psychiatric symptoms, findings, treatment or diagnoses during service. Further, the Veteran does not report any psychiatric treatment until an extended period after his military service had ended, 15 years (i.e. a decade and a half). Still further, there is no medical opinion that relates his current anxiety to medical service. In fact, the medical opinion of record indicates that his anxiety, for the most part, is age related. Moreover, there also is no medical opinion in the file refuting the VA examiner's unfavorable opinion, and the Veteran's lay statements are insufficient to rebut this opinion. Consequently, for these reasons and bases, the evidence is not in relative equipoise, meaning not about evenly balanced for and against the claim. Instead, the preponderance of the evidence is unfavorable, so the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001). ORDER The claim for service connection for a psychiatric disorder, inclusive of an anxiety disorder NOS, is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs