Citation Nr: 1319781	
Decision Date: 06/19/13    Archive Date: 06/27/13

DOCKET NO.  07-22 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Meawad, Counsel








INTRODUCTION

The Veteran, who is the appellant, served on active duty from August 1973 to June 1977.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2006 of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran claimed service connection for posttraumatic stress disorder.  As the record includes diagnoses of adjustment disorder with anxiety and depressed mood, and as the psychiatric diagnoses arise from the same symptoms for which the Veteran seeks benefits, the diagnoses do not relate to entirely separate claims not yet filed by the Veteran.  Rather, the diagnoses need to be been considered to determine the nature of the Veteran's current condition relative to his claim.  See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009).  

In October 2008, the Veteran did not appear for a hearing before the Board.  Without good cause shown for the failure to appear, the request for the hearing is deemed withdrawn.  38 C.F.R. § 20.704(d).

In November 2008, the Board remanded the case to obtain records of the United States Marine Corps, namely, a unit history or Lessons Learned/Operating Reports, including any information on whether the Veteran's unit was sent to Vietnam and whether the unit was engaged in combat.  In September 2011, the Board denied the claim of service connection for posttraumatic stress disorder and remanded the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder for VCAA notice and a VA examination.






FINDING OF FACT

A psychiatric disorder other than posttraumatic stress disorder was not affirmatively shown to have been present in service and is unrelated to an injury, disease or event in service.


CONCLUSION OF LAW

The criteria for service connection for a psychiatric disorder other than posttraumatic stress disorder have not been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

A September 2011 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  



The claim was subsequently readjudicated, most recently in a June 2012 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  A VA examination was conducted and an opinion was obtained in October 2011; the Veteran has not argued, and the record does not reflect, that this examination and opinion was inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  As the report of the VA examination is based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).   

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). 



REASONS AND BASES FOR FINDING AND CONCLUSION

Principles and Theories of Service Connection

A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service.  38 U.S.C.A. § 1110 (wartime service).  

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, also referred to as the "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 

Evidentiary Standards

VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection.  38 U.S.C.A. § 1154(a).  

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).



When the evidence is admissible, the Board must then determine whether the evidence is credible.  "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

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 Veteran.  38 U.S.C.A. § 5107(b). 

Evidence 

The Veteran seeks service connection for psychiatric disorder due to combat in Vietnam. 

The service personnel records show that the Veteran was assigned to Company G, Battalion Landing Team 2/9, 3rd Marine Division, for the entire period from June 1974 to October 1974.  The Veteran served in the Pacific as his records indicated he crossed the equator southbound towards Sydney, Australia. 

Nothing in the personnel records indicate service in Vietnam or that he was in combat such as an award of combat medals.

In response to a request from the RO, the National Records and Archives Administration provided the records for the United States Marine Corps for the unit history or Lessons Learned/Operating Reports (LL/OR) of Company G, Battalion Landing Team 2/9, 3rd Marine Division, from June 1974 to October 1974. 


The records do not show that the unit was sent to Vietnam or that the unit was engaged in combat.  The Veteran's unit was deployed aboard various United States Naval ships with stops in Japan, in Subic Bay in the Philippines, in Taiwan, and in Okinawa. 

The RO also obtained the naval histories for the various ships that the Veteran's unit was stationed for the same time period.  None of the ships entered into the territorial waters of Vietnam. 

Research by the RO revealed that "FPO 96602" was a designation for the 3rd Marine Division while stationed in Okinawa.

The historical record, including the Veteran's unit history and service personnel records, do not show that the Veteran served in Vietnam.  The Board finds that the Veteran is not credible as to service in Vietnam.  

The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a psychiatric disorder.  On both the enlistment examination in April 1973 and the separation examination in May 1977, the psychiatric examinations were normal. 

The service treatment records for the year 1974 indicate the Veteran sought treatment at various times throughout the year.  All treatment occurred through the Camp Schwab, Okinawa dispensary or the medical department of the 2nd battalion, 9th Marines, 3rd Marine Division with an FPO number of 96602.  

This specifically includes treatment in July, August, September, and October 1974, mostly for right knee problems and for groin pain.

After service on VA examination in October 2011, the diagnosed was adjustment disorder with depression and anxiety.  



Psychosocial and environmental problems listed were financial and relationship problems, separation from his wife and children and poor social support.  The VA examiner stated that the Veteran's condition was less likely than not incurred in or caused by an in-service injury, event, or illness.  The VA examiner explained that the Veteran's stressors included relationship problems, divorce, not being able to see his children, inability to work, and financial problems. 

Analysis

On the basis of the service treatment records alone, a psychiatric disorder other than posttraumatic stress disorder was not affirmatively shown during service and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a)  is not established.  

And as adjustment disorder with depression and anxiety are not listed as a chronic disease under 38 C.F.R. § 3.309(a), chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

As for service connection for a disability first shown after service under 38 C.F.R. § 3.303(d), the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In a claim of service connection for psychiatric disorder, there is a specific legal requirement that the diagnosis of psychiatric disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV).  





In other words, a psychiatric disorder other than posttraumatic stress disorder is not a simple medical condition that the Veteran as a lay person can diagnosis based on mere personal observation.  

For this reason, the Veteran as a lay person is not to competent to declare that he has a psychiatric disorder other than posttraumatic stress disorder or to offer an opinion that a psychiatric disorder other than posttraumatic stress disorder is related to service.

And it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to state that he has psychiatric disorder or to offer an opinion on a condition that is medical in nature.  Therefore, the Board rejects the Veteran's statements, that is, the lay evidence, as competent evidence that the Veteran has a psychiatric disorder other than posttraumatic stress disorder related to service.

As for the Veteran reporting a contemporaneous medical diagnosis, there is no diagnosis of psychiatric disorder other than posttraumatic stress disorder before 1999.  As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed a psychiatric disorder other than posttraumatic stress disorder to service.  

As for the medical evidence, the VA examiner provided an opinion that the Veteran's current psychiatric disorder was not related to active service and provided rationale citing to specific evidence in the file as support the opinion.  The opinion was based upon review of the claims file and an examination and is found to be persuasive evidence, which opposes the claim.  







As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for a psychiatric disorder other than posttraumatic stress disorder is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs