Citation Nr: 1318953	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  09-18 859A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD).  



ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel


INTRODUCTION

The Veteran served on active duty from November 1970 to November 1978.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Subsequent to the issuance of the rating decision, the Veteran's claims file was returned to the Houston, Texas RO.  

Regarding characterization of the issue on appeal, it is noted that the RO addressed the Veteran's claims for service connection for psychiatric disorder (PTSD and situational depression) separately.  (See, e.g., the February 2009 rating decision.)  Moreover, in his March 2009 notice of disagreement (NOD), the Veteran specifically noted that he wished to continue his appeal as to situational depression but not for PTSD.  The subsequently issued statement of the case (SOC), as well as additional SSOCs reflect that the issue was limited to the Veteran's claim for acquired psychiatric disorders, other than PTSD.  Accordingly, the February 2009 rating decision became final as to PTSD.  38 U.S.C.A. §§ 5108 and 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103 (2012).  

In an April 2010 statement, the Veteran stated that a private physician had diagnosed him as having PTSD, and he wished to file a claim of entitlement to service connection once again.  This was interpreted as a petition to reopen his previously denied claim of service connection for PTSD.  As noted in the Board's September 2011 remand decision, the issue of reopening a claim for entitlement to service connection for PTSD had been raised by the record, but has not been adjudicated.  Thus, it was referred to the RO for appropriate action.  

During the pendency of this appeal, the Court addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In Clemons the Court held that, in determining the scope of a claim, the Board must 
consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Id. at 5.  

While the Board is cognizant of the Court's holding in Clemons, in light of the RO's treatment of the Veteran's claim, the differing evidentiary criteria concerning service connection for claims for PTSD as opposed to service connection claims for other acquired psychiatric disorders, and recent evidence reflecting a diagnosis of PTSD, the Board concludes that the Court's holding in Clemons is inapplicable in the present case, and the issue is as stated on the title page of this decision.  

The claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, was remanded in September 2009 for additional development.  The file has now been returned to the Board for further appellate consideration.  


FINDING OF FACT

Post service acquired psychiatric diagnoses have included major depression and anxiety disorder; these psychiatric disorders were manifested many years after service and neither is related to any aspect of active service. 


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.

First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim.  In this regard, letters to the Veteran from the RO (to include letters in April 2008 and October 2011) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence.  Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide.  

The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In the present appeal, the Veteran was provided with notice of this information in letters dated in the April 2008 letter mentioned above.  

Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012).  The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran, his ex-wife, and his representative.  There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran.  

In January 2010, the Veteran's claims file was reviewed by a VA physician for an opinion as to current diagnosis and etiology of any acquired psychiatric disorders.  As explained below, the Board finds the January 2010 medical opinion to be adequate to address the current claim.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the appellant is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  


Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012).  In general, service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b) (2012); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997).  Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d) (2012); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Analysis

Review of the STRs reflects that the Veteran was admitted to the hospital for situational depression in September 1972.  He was seen for occasional palpitations in October 1974.  In statements of record, the Veteran and his ex-wife have stated that treatment in 1972 was due to his overdosing on alcohol and medication.  He was admitted to the hospital for observation, held briefly, and then released.  His separation documents reveal that he was medic and performed duties as a surgical technician.  

It is the Veteran's primary claim that his current psychiatric problems are related to his inservice activities.  As his job as a medic, he witnessed many soldiers returning from Vietnam with severe injuries.  He was fearful of having to go to Vietnam himself.  He reported that one inservice doctor gave him valium pills to take.  In a May 2008 statement, his ex-wife recalled that the Veteran was treated for heart palpitations during service, and this made the Veteran think that he was going to die of a heart attack.  This caused him anxiety.  He also talked a lot about death and dying during his time in service.  After service, he seemed to do well at first, but after a few years, he became moody and hard to get along with.  He had run-ins with supervisors, and he often seemed depressed and distant.  These problems ultimately resulted in their divorce in 2003.  

Post service treatment records include private documents dated in August 2003 which reflect symptoms of anxiety and depression.  The Veteran reported that he had always been hyper and anxious, but his symptoms had increased in recent years.  Major depression was the diagnosis.  

When examined by VA in January 2010, the examiner noted that the claims file was reviewed.  The Veteran reported symptoms to include depression, irritability, and anxiety.  He took medications for his anxiety and as a sleeping aid.  The examiner noted unremarkable psychomotor activity, good attention, normal short and long term memory, normal affect, and good mood.  The Veteran was quite talkative but denied other manic symptoms.  The diagnosis was anxiety disorder not otherwise specified.  The examiner noted that the Veteran's mental disorder symptoms were controlled by continuous medication and were not severe enough to interfere with occupational and social functioning.  The examiner found that anxiety was not related to active service.  For rationale, it was noted that during active service, the Veteran was given valium by doctors with whom he worked.  This was related by the Veteran and not actually documented in the records.  The Veteran also stated that the inservice episode of drinking too much and taking a lot of valium during service was a suicide attempt.  The examiner opined, however, that there was no relation of his current anxiety disorder to what happened while in service in 1972.  

As discussed above, the Veteran was seen on one occasion during service for situational depression.  He and his ex-wife have reported that this treatment was precipitated by the Veteran overdosing on alcohol and medication.  No other reports of psychiatric treatment were noted during service or until post service private records in 2003 when the Veteran was seen for anxiety and depression and major depression was diagnosed.  Most recently, a VA examiner diagnosed anxiety disorder.  The report included the opinion that such was not related to any incidence of service from 1972.  The Board cannot ignore the fact that the Veteran never discussed the supposed emotional impact of his military service until many years after service and did not file a claim for service connection until 2008.  Moreover, he did not report this theory of causation to his private doctor in 2003.  

While the Veteran may now sincerely believe that his psychiatric problems are due to the pressures of military service, he is not competent to provide an opinion on the origin of his psychiatric disorders as that determination requires medical expertise.  A layperson is generally not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997); Bostain v. West, 11 Vet. App. 124, 127 (1998).  Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  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, (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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The credible medical evidence, interpreted in light of the whole recorded history, reconciling reports into a consistent picture, does not support this finding, and weighs heavily against the claim.  38 C.F.R. § 4.2 (2012).  After one episode of situational depression in 1972, there is no credible lay or medical evidence of any psychiatric complaints or problems until approximately 25 years after service.  And, at that time, the Veteran reported that while he had always been hyper and anxious, he had been depressed for "a few years."  He did not relate his problem to military service at the time.  

The Veteran's report of an onset of chronic anxiety or depression in service or prior to 2003 is not credible as it is inconsistent with his own statements to the private physician in 2003.  Therefore, there is no onset in service or continuity of symptoms.  The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period 

without medical complaint can be considered, along with other factors concerning a Claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom; Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  

The Board reiterates that no competent and credible medical examiner or clinician has concluded that any currently diagnosed psychiatric disorder is related to in-any service incident.  The Board finds that the evaluation of this qualified psychologist is clear and definitive, and that it is based on personal examination and review of the record.  

The weight of the credible and probative lay and medical evidence demonstrates that the Veteran's current anxiety disorder and/or major depression first manifested after service and are not related to his active service.  As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied.  



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs