Citation Nr: 1322268 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 04-12 067A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disability(ies). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) from September 1975 to December 1975. He served on active duty from May 1972 to August 1972, and again from January 1976 to January 1979. He also had subsequent service in the Pennsylvania Army National Guard (ANG), with unverified periods of ACDUTRA and inactive duty for training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) arose from a June 2005 rating decision in which the RO, inter alia, denied service connection for major depressive disorder. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal except as noted herein. In October 2007, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In April 2008 and again in January 2012, the Board remanded the claim now before the Board to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. In the 2012 remand, the Board recharacterized the claim -previously characterized as one for service connection for major depressive disorder to more broadly encompass other diagnosed psychiatric disabilities, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In a February 2013 decision, the Board denied service connection for hypertension and remanded for further development the claim for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disability(ies). This matter has now been returned to the Board. As final preliminary matters, the Board notes that, in rating decisions dated in May 2013 (one of which is contained in Virtual VA), the RO denied service connection for a left hip disorder, a left shoulder disorder, a lumbar spine disorder, a sleep disorder, an eye condition (other than glaucoma but to include cataracs), a cervical spine disorder, and residuals of a head injury. In a letter dated later in February 2013 (after the date of the Board's decision) the Veteran again addressed the matter of entitlement to service connection for hypertension. The Board construes this to be a request to reopen the claim for service connection for hypertension. However, as this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO-the Board does not have jurisdiction over the matter, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter herein decided has been accomplished. 2. An acquired psychiatric disorder was not shown in active duty service or during a period of ACDUTRA or INACDUTRA, or until years after termination of either period of active duty; and the most persuasive evidence addressing the question of whether there exists a nexus between current psychiatric disability and either Veteran's service on any service-connected disability(ies)-to include the medication prescribed therefor-weighs against the claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disability(ies), are not met. 38 U.S.C.A. §§ 101(22) and (24), 1101, 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R.§§ 3.102, 3.156(a), 3.159. This duty to notify was intended to be provided prior to an initial adjudication of a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). By letter dated in January 2005, prior to the initial June 2005 adjudication of the claim now before the Board, the RO advised the Veteran of the evidence needed for claim substantiation and explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). For a claim, as here, pending before VA on or after May 30, 2008; 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that the submission of evidence in the claimant's possession that might help in claim substantiation. See 73 Fed.Reg. 23353 (Apr. 30, 2008). The Veteran was apprised of the downstream disability rating and effective date elements for the claims by RO letter of February 2012, prior to the most recent Supplemental SOC (SSOC) in October 2012. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). However, there is no prejudice to the Veteran with respect to the timing of this notice because an error in not providing preadjudication notice (timing-of-notice error) can be cured by notification followed by readjudication (in this case the October 2012 SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006); affm'd Mayfield v. Nicholson, 499 F.3d 1317 (Fed.Cir. 2007) (an SSOC is a readjudication); see also Prickett, 20 Vet. App. at 377-78. Moreover, as the claim for service connection for an acquired psychiatric disorder is denied, no disability rating and effective date is being, or will be, assigned as a matter of law. Therefore, there can be no possibility of any prejudice to the Veteran with respect to any defect in the VCAA notice required under Dingess, at 19 Vet. App. 473. See also VAOPGCPREC 8-2003 (Dec. 22, 2003); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Specifically as regards the October 2007 Board hearing, it is noted that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the individual who chairs a hearing fulfill two duties to comply with the above the regulation: (1) to fully explain the issues, and (2) to suggest the submission of evidence that may have been overlooked. Here, questioning during the hearing focused on the elements for claim substantiation. The issues on appeal were identified, and testimony was solicited from the Veteran as to the relevant clinical history and the required elements for service connection . While, during the hearing, there was no specific suggestion that the Veteran submit any evidence that may have been overlooked, as discussed below, the case was remanded for additional evidence in 2008, 2012, and again in 2013. As such, even if not all elements required for claim substantiation are explicitly set forth during a hearing, if those matters are developed by VA, there is no indication of any outstanding additional evidence or information, and particularly if any VA examination was conducted to address such matter, the purpose of 38 C.F.R. § 3.103(c)(2) has been fulfilled. See Bryant, 23 Vet. App. 488, 498-99 (2010) (a VA examination addressing service connection elements of current disability and nexus, when there was no indication of outstanding evidence satisfied 38 C.F.R. § 3.103(c)(2), even when those elements were no explicitly set forth those material issues at a hearing). Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). Thus, there has been full compliance with the duties to provide notice of what was need for claim substantiation. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As for VA's duty to assist, the RO has obtained the Veteran's available service treatment records (STRs), VA treatment records, and private clinical records. Also of record and considered in connection with the appeal is the transcript of the October 2007 Board video-conference hearing. The case had been remanded in 2008 to further identify the Veteran's periods of military service. To the extent possible, this was done, as described and explained in the 2012 Board decision. As was noted in the 2012 Board decision, pursuant to the 2008 Board remand instructions, the Appeals Management Center (AMC) in Washington, DC, requested records from the National Personnel Records Center (NPRC), the Department of the Army, and the Pennsylvania ANG. However, no additional records were obtained, and no additional dates of ACDUTRA or INACTDUTRA could be confirmed. A response from the NPRC only verified active duty service from January 1976 to January 1979 and a period of ACDUTRA from September 1975 to December 1975. The record also reflects that the Veteran was made aware of the steps undertaken to obtain these records and VA's inability to find any further records, and was informed that he may submit any such records in his possession. Because the AMC informed the Veteran that it was not able to obtain any additional records, and the AMC staff followed up to ensure that the Veteran knew that it was therefore his obligation to obtain them and submit them to VA, the Board found in 2012, and does so again now, that the RO fulfilled its duty to assist in regard to attempting to obtain these non-federal records and substantially complied, to the extent possible, with the April 2008 remand instruction. 38 C.F.R. § 3.159(c)((1). When the case was remanded in 2008 and in 2012, it was requested that the Veteran be afforded the opportunity to submit additional evidence or inform VA of the existence of such evidence and VA would attempt to obtain it. This was done recently in a February 2012 letter from the VA Appeals Management Center (AMC). It was also requested the up-to-date VA treatment records be obtained. These are now available for review in the form of "CAPRI" records contained within the Virtual VA system. The case was also remanded in 2012 to afford the Veteran a VA examination and that examination was conducted in March 2012. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The case was again remanded in 2013 to obtain an opinion as to whether the Veteran's service-connected disabilities aggravated an acquired psychiatric disorder, and to address the inservice clinical notation that anxiety was to be ruled out. This was done in a February 2013 addendum contained in Virtual VA. The case was also remanded to afford the Veteran the opportunity to provide additional information or evidence in support of his claim, and this was done by an AMC letter in February 2013, to which the Veteran responded later that month stating that he no further information or evidence to submit. Moreover, as for the 2012 VA examination, and the 2013 addendum addressing the claim for service connection for an acquired psychiatric disorder, the adequacy of that examination and the medical opinions obtained have not been challenged. As to this, even in light of the duty to independently consider issues suggested by the evidence of record, under Comer v. Peake, 552 F.3d 1362, 1368 (Fed.Cir. 2009), "the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Rizzo [v. Shinseki,] 580 F.3d at 1290-91. The argument that a VA medical examiner's opinion is inadequate is sufficiently close to the argument raised in Rizzo that it should be treated the same." Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011); see also Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed.Cir. 2010); and Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); Hilkert v. West, 12 Vet. App. 145, 151 (1999). In Stegall v. West, 11 Vet. App. 268, 271 (1998) it was held that a remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand but substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Here, as to the claim for service connection for an acquired psychiatric disorder, there has been substantial compliance with the request in the Board remands in 2008, 2012, 2013. As there is no indication that the Veteran was unaware of what was needed for claim substantiation nor any indication of the existence of additional evidence for claim substantiation, the Board finds these actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Background Service connection has been established for: (1) degenerative joint disease (DJD) of the right hip, with postoperative residuals of a total right hip replacement, rated 30 percent; (2) a right ankle disorder with calcaneal spurring, rated 10 percent; (3) a left ankle disorder, rated 10 percent; (4) chondromalacia of the left patella, status post partial synovectomy, rated 10 percent; (5) chondromalacia of the right patella, rated 10 percent. A review of the paperless, electronic (Virtual VA) file associated with this Veteran reveals that a June 2008 rating decision changed the previously assigned noncompensable ratings for the Veteran's service-connected (6) pes planus with hallux abducto valgus of the right lower extremity, and (7) pes planus with hallux abducto valgus of the left lower extremity to a single rating of 30 percent encompassing both of these disabilities) and also granted service connection for residuals, status post-excision soft tissue ganglion of the left foot, which was assigned a 10 percent rating; and also granted service connection for shortening of the right leg shortening, as secondary to the service-connected right hip DJD with total right hip replacement, with a noncompensable rating assigned from May 12, 2008; but this disability was to be included with the current evaluation for right hip DJD with total right hip replacement. On file is a July 1996 letter from an Administrative Officer of the Pennsylvania Army National Guard stating that the Veteran would be retiring in December 1996. Also on file is a certificate of Honorable Discharge from the Pennsylvania Army National Guard confirming that the Veteran retired from that organization in December 1996. On the other hand, there is also on file a certificate of Honorable Discharge from the Pennsylvania Army National Guard confirming that the Veteran retired from that organization in January 2002. A review of the STRs shows that, in October 1977 (during a period of active duty from January 1976 to January 1979) the Veteran wondered if he had hepatitis because he felt weak, had lost weight, and was anorexic. The assessment was to rule out hepatitis and anxiety. VA outpatient treatment (VAOPT) records show that in August 2005 the impressions were a bipolar disorder, not otherwise specified (NOS), and alcohol use and dependence. VAOPT records include psychiatric diagnoses other than major depressive disorder, i.e., VA outpatient treatment records note diagnoses of bipolar disorder as well as depression. During a March 2005 VA psychiatric examination to address whether the Veteran had a psychiatric disorder, including depressive symptoms, due to medication for his service-connected knee disabilities, the claim file was reviewed. The Veteran reported difficulties with his service-connected knee disabilities. He did not report having had any psychiatric problems related to or during his military service. He had had problems related to drinking alcohol in the past but the examiner had difficulty pinning down information with respect to the Veteran's drinking habits in the past versus the present, although he still drank alcohol. The examiner specifically noted that it was felt that a reliable account of the Veteran's drinking habits could not be obtained, although the Veteran was otherwise a reliable historian. The Veteran reported that knee pain and financial problems were the biggest issues in his life but also that three people close to him had recently died. Although he had some depressive feelings, these appeared to be within normal limits. He did not currently endorse symptoms that would suggest major depression or a depressive disorder. He had no psychotic symptoms. The diagnoses were possible continued evidence of alcohol dependence, with questionable reliability of the patient; and possible personality disorder traits. While the examiner found evidence of some anxiety and some slight depressive symptoms, there was not sufficient evidence of a clear psychiatric disorder. A review of his medications did not reveal any significant correlation with respect to medical-induced depression, and there was no indication of any difficulties in this regard. VA outpatient treatment records show continued diagnoses of major depressive disorder, as well as bipolar disorder. In July 2006, the Veteran indicated that he was down (depressed) due to his service-connected right hip disability and that he could not do his job. Worsening bipolar disorder and depression was noted at that time. During the 2007 Board hearing, the Veteran indicated that he had served in the Pennsylvania ANG from 1980 to 2001. A July 1996 letter from the Pennsylvania ANG indicates that the veteran would be retiring from the Pennsylvania ANG in December 1996. A December 1996 honorable discharge indicated that the veteran was honorably discharged from the Pennsylvania ANG and transferred to the Army retired reserve in December 1996. During the Board hearing, in his October 2007 written statement, and elsewhere, the Veteran indicated that his claim for service connection for depression was based, in part, on events that occurred while he was on ACDUTRA or INACDUTRA in the ANG. Specifically, during the 2007 Board hearing, he testified that he felt that is medical problems were causing him to be depressed and that the depression impaired his ability to work. See Transcript, page 12 (T12). He particularly felt that his service-connected right hip replacement and service-connected knee disabilities caused him to be depressed. T13. Because of his depression he had resorted to using alcohol but no longer did so. T14. He had been hospitalized in 2005 when he had tried to commit suicide due to depression. T15. Also, he testified that his service-connected disabilities were at least contributing to and aggravating his depression. T17 and 18. He had first been diagnosed with hypertension in 1987, while still a member of the Pennsylvania Army National Guard, by Dr. B. who had told him that his hypertension could be caused by medication he was taking for his service-connected knee disabilities. He also felt that his depression contributed to his hypertension. T26. On VA psychiatric examination in March 2012, pursuant to the January 2012 Board remand, the Veteran's claim file was reviewed. It was noted that the Veteran's past psychiatric history was significant for one inpatient psychiatric hospitalization, which took place about six years ago in the context of feeling depression and suicidal. He had a history of alcohol dependence, which had been in remission for approximately two years. Although he denied any suicide attempts, he reported that he had he struggled with suicidal thoughts, on and off, for an unspecified period of time. He got along well, in general, with no complaints with the exception of the physical difficulties he had from his significant knee problems. There were no present psychosocial stressors beyond knee pain. The examiner noted that the Veteran used a TENS unit, which he reported significantly improved his pain and allowed him to function, but, that when he took off the TENS unit, he felt significant pain. The examiner further noted that, overall, he had responded quite well to treatment but he did indicate that his knee problems interfered in the quality of his everyday life and contributes to physical impairments on weekends. The Veteran reported that approximately two years ago, he began to experience what he perceived as his mind "racing". He reported that he had always struggled with depressive symptoms, but could not recall earlier feelings that his mind was racing. He felt that was had now gotten to the point that he found his mind was just racing so much that his body would not "slow down." He felt "pressured." He reported that he felt that he had too much energy. He did not readily admit to significantly elevated self-esteem or grandiosity. The examiner noted that it was difficult to pin the Veteran down in reference to length of possible hypomanic/manic symptomatology. He was generally unable to provide strict criteria, which the examiner was seeking to obtain in reference to diagnosis of bipolar I or type II. The Veteran had had never had any clear psychotic symptoms. He did admit to some troubles with his sleep, due to racing thoughts. He provided a sketchy history in terms of frequency and intensity of symptoms. In terms of the general course of hypomania versus depression, again it was very difficult to get a history of a specific beginning, onset, duration, intensity of symptoms. The examiner's general conclusion was that the Veteran had struggled with quite a bit of mood instability over the last two years. It was not clear, in terms of the progression or what occurred in terms of onset approximately two years ago. Certainly, bipolar could have an onset at any age, although it typically began much earlier. There were cases, however, where people presented with late-onset bipolar disorder. In reference to his depressive problems, the Veteran admitted that this has been a much more overriding problem with the various depressive symptoms, on and off, over the course of time. In the past, he did not specifically recall recurring bouts of major depression, as defined by DSM-IV (Fourth Edition of the American Psychiatric Association's , but he reported that approximately three years ago or so, he began to have much more intense problems with depression. It was not clear, in terms of the evolution of the symptoms but, overall, it appeared that in the last couple of years or several years, he had had more problems with sustained depression, as well as irritability, anxiety, racing thoughts, hypomanic symptoms, and mixed problems. Currently, the Veteran reported his mood was good, and he denied any significant neurovegetative symptoms of depression, with the exception of some symptoms that were created, due to pain. He denied any active or passive suicidal or homicidal thoughts, and was able to contract for his own safety. He denied having any psychotic problems. He did not feel overtly anxious or nervous, and denied anxiety problems. There were no drug or alcohol problems or impulse control problems. The examiner did not see any evidence of Axis II pathology. The Veteran's mood was described as euthymic, and he did not admit to any hypomanic, manic or mixed symptomatology. He was tolerating his medications fairly well, with no significant complaints of problems, with the exception of feelings of fatigue. There was no evidence of any oral, buccal or peripheral dyskinetic movements on examination. Following mental status examination, the diagnoses were alcohol dependence, in full remission (greater than one year); and a bipolar disorder, NOS. In reference to the Veteran's diagnosis, he did not provide sufficient evidence for the examiner to diagnose type I or type II bipolar disorder. However, in the context of having what appear to be manic-type of symptomatology and his significant improvement with pharmacotherapy focusing on bipolar symptoms, the best diagnosis seemed to be a bipolar disorder, NOS. The examiner believed there was sufficient evidence to provide a diagnosis of mood disorder with significant bipolar problems. The Veteran did not meet criteria, based on his inability to define a consistent course for distinct manic episodes, but nonetheless he had had significant manic symptoms. He had some degree of heightened self-esteem, but had not really exhibited clear poor judgment secondary to hypomanic-type of euphoria. He had had increased goal-directed activities in the form of excessive energy and excessive working, as well as some degree of increased talkativeness or pressure to speak, etc. He described some degree of distractibility, and reported that he felt his thoughts were moving too quickly. He had had, on and off, problems with sleep for years, but did not report a decreased need for sleep, as much as being unable to sleep and then feeling sleepy. The examiner clarified that the examiner was a board-certified psychiatrist and had examine the Veteran, as well as reviewed the full claims folder. The examiner further stated that he did not find clinical documentation that would suggest that the Veteran's bipolar disorder was related to his military service. Also, the examiner found no evidence of military stressors inducing the Veteran's psychological problems. Following and pursuant to the Board remand in February 2013, the case was returned to the VA staff psychiatrist (who reported in March 2012 that he was a board-certified psychiatrist) that conducted the March 2012 VA psychiatric examination for an addendum as to the in-service clinical notation that anxiety was to be ruled out and whether or not the Veteran's service-connected disabilities had aggravated a claimed psychiatric disorder. That board-certified staff psychiatrist reported that he had reviewed the report of that prior examination as well as the claims files. The staff psychiatrist further stated that after such review the questions can be answered appropriately. In reference to the request for an addendum to address whether any currently diagnosed psychiatric disorder was related to service-connected disabilities, there is no indication that the patient's current rated disabilities including osteomalacia, hip prosthesis, ankle problems, flat foot, or superficial scars could permanently worsen beyond normal progression the patient's bipolar disorder. The staff psychiatrist reported that bipolar disorders in general were seen as etiologically being more of a biologically determined disorder; even though no family history is always elicited. Any stressor can potentially worsen mental health problems, but to choose specific conditions or to state that one condition can permanently aggravate a bipolar disorder could not be determined without resorting to mere speculation. The staff psychiatrist further stated that it was at least as likely as not that these service-connected disorders had not caused or permanently aggravated the Veteran's bipolar disorder condition. In regard to the 1977 STR which noted anxiety was to be ruled out, there did not appear to be sufficient evidence of a specific mental disorder at that time which seemed relevant to the discussion. III. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases, such as psychoses, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed.Reg. 52,744-47 (Sept. 7, 2006). With respect to the Veteran's ANG service, to establish basic eligibility for veterans benefits based on a period of duty as a member of the Army National Guard of any State, a claimant must show either that he was ordered into Federal service by the President of the United States, or that his duty was performed under the provisions of statutes governing active duty for training; or injury incurred or aggravated while performing inactive duty training (INACDUTRA). 10 U.S.C.A. § 12401; 32 U.S.C.A. §§ 316, 502, 503, 504, 505; 38 U.S.C.A. § 101(22), (24); 38 C.F.R. § 3.6. See also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Also, the one-year presumptive period for manifestation of hypertension as chronic diseases under 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.307 and 3.309 does not apply to any period of ADCUTRA or INACDUTRA to any period of federalized active duty for training as member of the Pennsylvania Army National Guard because no disability was incurred during a period of ACDUTRA or INACDUTRA to confer status as a veteran for such a period of service to evoke the one-year presumption. 38 U.S.C.A. § 1112 and 38 C.F.R. §§ 3.1(d) and 3.6(a). Under 38 U.S.C.A. § 1111 for the presumption of soundness applies to veterans and also requires that there have been an examination for service entrance which revealed no defects, infirmities, or disorders. Those who serve on ACDUTRA are not veterans (unless first service-connected for a disorder incurred or aggravated during that period of ACDUTRA) and are generally not provided examinations prior to their ACDUTRA service. Thus, the presumption of soundness does not attach to periods of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 46 - 47 (2010) The Board must determine whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361-1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. If a veteran's STRs are unavailable, VA's duties to assist, the duty to provide reasons and bases for its findings and conclusions and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250-252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Where the "service medical records are missing... the Board [may not] wrongly equate the absence of medical corroboration with 'negative evidence.' Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone." Cartwright v. Derwinski, 2 Vet. App. 24, 25-26 (1991). However, the absence of STRs does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. Rather, there is only a heightened duty of the Board to consider the applicability of the benefit of the doubt doctrine. In other words, the legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46, 51 (1996). Also, the absence of some STRs does not create an adverse presumption against VA. Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). In this case, competent, credible, and persuasive evidence does not establish that the Veteran's current acquired psychiatric disorder had its onset during active duty from May to August 1972 or active duty from January 1976 to January 1979, or that a psychosis was manifested within one year of termination of either period of active duty. The board-certified VA staff psychiatrist that conducted the 2012 psychiatric examination reviewed the claim file at that time and reviewed the claim file yet again when an addendum was rendered in February 2013 concluded that the 1977 STR notation that anxiety was to be ruled out was not sufficient evidence of a specific mental disorder at the time to be relevant. In this regard, the Board notes that at the time of this 1977 clinical notation the Veteran was concerned that he might have hepatitis (which in fact he has never had) because of complaints of weakness, weight loss, and anorexia. There was no actual complaint by the Veteran, in 1977, of his actually having anxiety nor were there subsequent complaints of anxiety, or any other psychiatric symptoms during the remainder of his second, and last, period of active service. Likewise, it is not shown that an acquired psychiatric disorder had its onset during the verified period of ACDUTRA from January to December 1975, inasmuch as there are no clinical records of such during that period of ACDUTRA. As for the Veteran's testimony that he had been diagnosed with hypertension while a member of the Pennsylvania ANG and that a physician had told him that depression could contribute to hypertension, it must be noted that service connection for hypertension was denied in the Board's February 2013 decision. Moreover, even what the Veteran asserted was true, it would not constitute a legal basis for granting service connection for an acquired psychiatric disorder. In other words, aggravation of a nonservice-connected disability by another nonservice-connected disorder, is not a basis for granting service connection for the purpose of granting disability compensation benefits. This is true regardless of whether a nonservice-connected acquired psychiatric disorder aggravates nonservice-connected hypertension or whether nonservice-connected hypertension aggravates a nonservice-connected acquired psychiatric disorder. To the extent that the Veteran implies that an acquired psychiatric disorder first manifested during a subsequent period of ACDUTRA or INACDUTRA. The Board has considered that Veteran's testimony. However, there is no corroborating evidence that such a diagnosis was made. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (holding that when the underlying medical nature of evidence has been significantly diluted, e.g., the connection between a lay account of past medical information, and filtered through layman's sensibilities, it is too attenuated and inherently unreliable to constitute medical evidence). The 2005 VA examiner indicated that the Veteran might have possible personality disorder traits. However, to the extent that the Veteran may have a personality disorder, this is developmental in nature and is not a disease for which service connection may be granted. See 38 C.F.R. § 3.303(c). Lay evidence may establish continuity of symptomatology, as to observable signs and symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) (lay evidence is competent when a condition can be identified by a layperson); see also 38 C.F.R. §§ 3.159(a)(1) and (2) (defining, respectively, competent medical and lay evidence) and 3.307(b) (lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, No. 2011-7159, slip op. at 5 (Fed.Cir. Dec. 2, 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). Lay evidence can be competent to establish a diagnosis or identify a medical condition in three circumstances. The first is when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, and (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). Here, the Veteran is not competent to identify the complex medical question of whether a person has an acquired psychiatric disorder, as this requires medical training, knowledge, and expertise; and, also he has not described symptoms which have supported a latter diagnosis by a medical professional (circumstance 1 and 3 above). As to the second circumstance (reporting a contemporaneous medical diagnosis), the Board has considered the Veteran's testimony and statements in which he has indicated his belief that his psychiatric disorder is related to either some period of military service or to his service-connected disabilities. However, contrasted against this are the voluminous VA treatment records, which do not document the existence of an acquired psychiatric disorder of any kind until recent years and long after any period of active service or service in the Pennsylvania ANG. Moreover, the examiners in 2005 and in 2012 found it difficult to obtain accurate and reliable histories from the Veteran, particularly as to his past abuse of alcohol and as to any manic or hypomanic symptoms. This detracts from the Veteran's credibility. Also, the 2005 VA examiner found no correlation between the Veteran's medications for service-connected disabilities and the Veteran's primary symptom at that time, which was and continues to be depression. Significantly, none of the early VA treatment records include any reference to the Veteran having an acquired psychiatric disorder which had existed for any significant period of time, much less for the many years it would take to antedate an acquired psychiatric disorder back in time to his much earlier periods of active duty and any reserve duty. Also, while lay evidence of continuity of symptomatology may be used to establish and fulfill the required nexus element of a service connection claim as to a chronic disease listed at 38 C.F.R. § 3.309(a), while a psychosis is a disease listed as a chronic disease at § 3.309(a), a bipolar disorder is not a listed chronic disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) 38 C.F.R. § 3.384(a) - (i) states that a psychosis means any of the following disorders listed in the Diagnostic and Statistical Manual of Mental Disorders - (a) brief psychotic disorder;(b) delusional disorder;(c) psychotic disorder due to general medical condition;(d) psychotic disorder NOS;(e) schizoaffective disorder;(f) schizophrenia;(g) schizophreniform disorder;(h) shared psychotic disorder; and (i) substance-induced psychotic disorder. However, a bipolar disorder of any type, including the Veteran's diagnosed bipolar, NOS, is not listed at 38 C.F.R. § 3.384 as being a psychotic disorder. Moreover, the 2012 VA examiner specifically stated that the Veteran had never had clearly psychotic symptoms. For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question." Moreover, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) the Federal Circuit rejected the hypothesis that continuity of symptomatology should apply not only to chronic disability in the medical sense even if not listed in 38 C.F.R. § 3.309(a) but also to any "non-chronic disease or injury." The record shows that it was not until a number of years after the Veteran's active duty and any service in the Pennsylvania ANG that the Veteran was shown to have an acquired psychiatric disorder. Nothing, other than his uncorroborated statements and testimony, which for the reasons stated the Board finds are not credible, antedates his psychiatric disability to any putative period of active duty, ACDUTRA or INACDUTRA. The recent VA medial opinions obtained in this case, after reviewing the claims files, was that the Veteran's acquired psychiatric disorder did not at least as likely as not have its onset in or was medically related to service. In this case, there is no contrary, i.e., favorable, medical opinion which weighs against this unfavorable medical opinion. The Veteran has alternatively argued that his psychiatric disability was caused or is aggravated by his service-connected disabilities. In this regard, the 2012 VA examiner reported that while any stressor could potentially worsen a mental health problem, a bipolar disorder was generally seen as etiologically being more of a biologically determinative disorder and that to choose one or more specific conditions as causing permanent aggravation of a bipolar disorder would require a resort to mere speculation. Moreover, that examiner, a board-certified psychiatrist, opined that it was at least as likely as not that the service-connected disabilities had "not" caused or permanently aggravated the Veteran's bipolar disorder. So, the medical opinions in 2005, 2012, and 2013 have greater weight than the lay beliefs and opinions of the Veteran advanced in furtherance of his claim for compensation benefits, particularly since, unlike the Veteran, the board-certified psychiatrist has the education, training, and experience to render a knowledgeable opinion. Accordingly, service connection for an acquired psychiatric disorder is not warranted. As indicated, the claim must be denied because the preponderance of the evidence is unfavorable. See 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, to include as secondary to service-connected disability(ies), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs