Citation Nr: 1319137 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 06-28 080A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including bipolar disorder and depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from June 1977 to June 1980 and from December 1980 to November 1982. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the Arizona National Guard (National Guard). This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. This has previously been before the Board, most recently in October 2012, at which time the Board remanded the claim for additional development of the medical evidence of record. As an initial matter, the Board notes that when its remand orders are not complied with, it errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board remanded the Veteran's claim in order to obtain an addendum medical opinion, and an addendum opinion was provided in December 2012. The Board finds that there has been substantial compliance with the Board's remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) Although, as in the instant case, a veteran's stated claim may only seek service connection for a particular psychiatric disorder, the Court has held that such a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, but instead makes a general claim for compensation for the difficulties posed by the veteran's mental condition. The Board's decision thus considers entitlement to all of the psychiatric diagnoses raised by the record. As the Board noted in its October 2012 Remand, the Veteran's claim to reopen a previously-denied claim for service connection for a left knee disorder, as secondary to the service-connected right knee disability, has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT An acquired psychiatric condition was not shown during active duty military service or for many years thereafter, and the weight of the probative evidence is against a finding that the Veteran's acquired psychiatric condition is the result of, or is aggravated by, the Veteran's service. CONCLUSION OF LAW An acquired psychiatric condition was not incurred in, or aggravated by, active duty military service, and it may not be presumed to have been so incurred or aggravated. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. 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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2011); 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. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See id. at 486. Determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009). In the instant case, correspondence dated May 2003 notified the Veteran of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The Veteran filed his claim prior to the Court's 2006 decision in Dingess, and as such, he was not provided with full Dingess notice at the time of the May 2003 VCAA letter. Instead, in May 2006, pursuant to the Court's holding in Dingess, the Veteran was provided with notice regarding the degree of disability and effective date. Additionally, since the time of the May 2006 Dingess notice, the Veteran has been provided with several readjudications of his claim, and the Board finds that there has been no prejudice to the Veteran requiring additional notice. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's service treatment records, VA medical treatment records, and records from the Social Security Administration have been obtained, to the extent available. There is no indication that there is any additional relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination in September 2010, and this examination report was supplemented with additional opinions in December 2011 and December 2011. Upon review of this examination report, as supplemented, the Board observes that the VA examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The opinions are therefore adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran presented testimony before the undersigned in November 2009, and a transcript of this hearing is of record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection Service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). The term "active military service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from an injury or disease incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(24) (West 2002). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For certain chronic diseases set forth in 38 C.F.R. § 3.309, including, in pertinent part, psychoses, a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (noting that a "continuity of symptomatology" as specified in 38 C.F.R. § 3.303(b) affords an alternative route to service connection only for specific chronic diseases). In order to establish service connection for the Veteran's claimed disorder on a direct basis, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain diseases, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption is rebuttable by probative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). For the purposes of this presumption, "psychosis" includes the following specific disorders: 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. See 38 C.F.R. § 3.384 (2012). This presumption does not, however, apply to periods of ACDUTRA or INACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010). Regarding the first Hickson element, medical evidence of a current disability, the Veteran has been diagnosed with, among other conditions, bipolar disorder and major depressive disorder, and he has received treatment for these conditions at VA treatment centers. The first Hickson element is therefore met. Regarding the second Hickson element, in-service disease or injury, the Veteran has alleged that he began experiencing psychiatric symptoms in service, and the Veteran is considered competent to give evidence regarding what he experienced in-service such as feeling depressed. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). The Board has no reason to believe that the Veteran did not experience such during service and finds the Veteran's account of these feelings and experiences in service to be credible. The second Hickson element is therefore met. Regarding the third Hickson element, competent evidence of nexus, the Veteran was provided with a VA examination in September 2010, and a supplemental opinion was rendered in December 2011. Upon review of this opinion, the Board, in an October 2012 Remand, noted that the opinion considered only the relationship between the Veteran's acquired psychiatric condition and his period of active duty service from June 1977 to June 1980. The Board noted that the Veteran had an additional period of active duty service from December 1980 to November 1982, and the Board requested that the examiner consider the relationship, if any, between the Veteran's acquired psychiatric condition and all pertinent periods of service. In December 2012, the December 2011 examiner rendered an additional supplemental opinion in accordance with the Board's remand directive. In that opinion, despite initially noting in September 2010 that the Veteran's psychiatrist appeared to find that the Veteran's bipolar disorder was his more prominent psychiatric problem and that it was aggravated by the Veteran's Army National Guard deployment to the Persian Gulf in 1991, the VA examiner opined as he had in December of 2011 that the Veteran's acquired psychiatric condition was less likely than not related to the Veteran's claimed in-service injury, event, or illness. The examiner noted that the Veteran began receiving mental health treatment many years after his period of active duty. The examiner observed that the Veteran was first treated for an acquired psychiatric disorder many years after his period of active duty. The examiner observed that the Veteran's progress notes made almost no reference to the Veteran's active duty service, and such service was not a focus of the Veteran's treatment. Instead, the Veteran's treatment focused on the Veteran's fluctuating moods and the events in his life, especially periods of unemployment, financial strain, and relationship difficulties. Similarly, the examiner found no evidence of a link between the Veteran's other service and his acquired psychiatric condition. Instead, the Veteran's condition appeared to improve when he was regularly employed, including when he was actively employed with the National Guard. The Veteran became distressed when he was laid off, unable to find work, or when financial problems strained his relationships. The examiner found, therefore, that it was less than likely that there was a relationship between the Veteran's active duty service and his acquired psychiatric condition. Instead, the examiner found that the Veteran's military service was "somewhat stabilizing" of his psychiatric condition. The Board has otherwise reviewed the Veteran's treatment records for any medical suggestion that the Veteran's acquired psychiatric condition is related to service, and it has found none. To the extent that the Veteran himself believes that his acquired psychiatric condition is related to his military service, including his contentions before the undersigned at his November 2009 hearing, the Board acknowledges that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge. See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, namely, the etiology of an acquired psychiatric disorder, the issue of causation of a psychiatric condition is a medical determination outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's acquired psychiatric condition is related to his military service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's acquired psychiatric condition and his military service, with greater probative weight than these lay opinions. There is also no evidence showing or suggesting that the Veteran developed a psychosis within one year of separation from active duty service, which would justify entitlement to service connection on a presumptive basis. Instead, the post-service evidence indicates that the Veteran was not diagnosed with an acquired psychiatric condition until over a decade after the Veteran was released from active duty service in November 1982. As such, in the absence of diagnosis of a mental disorder within one year of separation from service, presumptive service connection must be denied. Similarly, with regard to a continuity of symptomatology, even assuming that the Veteran's current acquired psychiatric condition is a "psychosis," the Board finds that the long lapse in time between the Veteran's active service and the first medical treatment for an acquired psychiatric disorder weighs against the Veteran's claim of a continuity of symptomatology since his separation from service. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time during which the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, in a post-service VA treatment record from March 2004, the Veteran reported experiencing "highs" and "lows" for the previous 20 years (that would place the time of onset in approximately 1984), approximately two years after he was discharged from his last period of active service in November 1982. Thus, although the Veteran noted that when he began to experience these "highs" and "lows" when he was in the National Guard based on symptoms of irritability and constantly losing his temper, it would be necessary for a competent medical provider to link such episodes to his current diagnosis and the only opinion of record is against such a link. Therefore, service connection based on a continuity of symptomatology is also unwarranted. The Board also notes that while the reporting VA clinician from March 2004 went on to note that "it is quite possible that the patient may well have been suffering from this condition while he was in the National Guard," opinions phrased in terms of a "possible" relationship are considered speculative in nature and of limited probative value. Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In summary, the preponderance of the more competent and probative evidence of record indicates that the Veteran's acquired psychiatric condition is not related to his military service. The benefit sought on appeal is accordingly denied. ORDER Service connection for an acquired psychiatric disorder, including bipolar disorder and depression, is denied. ____________________________________________` Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs