Citation Nr: 1323066 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 12-00 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran had active service from July 1964 to January 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In a decision in May 2013, the Board reopened the claim of service connection for a psychiatric disorder and remanded the reopened claim for additional development, which has been completed. FINDING OF FACT A psychiatric disorder, major depressive disorder, was not affirmatively shown to have been present in service, and major depressive disorder, first documented after service, is unrelated to an injury or disease or event in service. CONCLUSION OF LAW A psychiatric disorder, major depressive disorder, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2010. The content and the timing of the VCAA notice complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); and of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. The Veteran was afforded a VA examination in May 2013. As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is fully informed, the examination is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS 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) and 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish entitlement 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, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. § 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 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). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. 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 weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. 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 probative value or weight 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). Facts The service treatment records in October 1964 show that the Veteran was hospitalized for psychiatric observation after taking APCs (essentially aspirin) and attempting a self-inflicted knife wound. Before service there was a history of indebtedness and a pregnant girl friend, whom he subsequently married. Recently, his wife had left him. And the Veteran was reactivated from his National Guard unit because he not attended meetings. On mental status evaluation, there were no overt signs of depression. The Veteran stated that he wanted out of the Army and he had no motivation for the service. The Veteran was angry and resented that he had been reactivated for active duty, stating he had already served his time. During the hospitalization the Veteran's behavior was manipulative. The diagnosis was inadequate personality manifested by poor judgment, immaturity, indebtedness, and the inability to handle stress, to adapt to the military, and to function in a civilian or military social situation. The predisposition was a long history of the inability to cope. The condition was found to have existed prior to service and not in the line of duty. On separation examination in December 1964, the Veteran indicated that he had depression. A character and behavior disorder was listed as a diagnosis. The Veteran was subsequently discharged from service due to unsuitability. After service on VA examination in June 1970, the Veteran described his in-service psychiatric symptoms. The Veteran stated his current psychiatric symptoms began in January 1969, following a vehicle accident. The diagnosis was anxiety neurosis. In March 2007, VA records included a history of depression and hopelessness associated with the poor performance of the Veteran's business and marital discord. In March 2008 on VA psychiatric consultation, the Veteran described symptoms of dysthymia, depression, and decreased sleep for several months, because of financial, familial, and employment difficulties. The diagnosis was depression. In August 2010 and in January 2010, the diagnosis was major depressive disorder. In December 2010, the Veteran complained of being angry and upset about the entries in the service records. He indicated that he understood the notations relating to suicide and to marital problems, but not as the basis for his discharge from service. In May 2011, a VA psychiatrist confirmed that the Veteran had been seen since March 2008 for major depressive disorder. The psychiatrist noted that the Veteran asserted that depression emerged after he was deemed psychiatrically unable to pursue a combat tour in Vietnam. On VA examination in July 2011, the diagnoses were major depression and alcohol dependence, which the VA examiner stated were likely caused by or a direct result of the Veteran's military service, citing the Veteran's enlistment in the Army in 1964 when the war in Vietnam broke out, the Veteran's desire to fight in Vietnam, the Veteran's hope for a military career, and the Veteran's depression and guilt since he was not chosen to fight in Vietnam. In April 2013, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The Veteran's representative argued that the opinion of the VA examiner in July 2011, that major depression and alcohol dependence were likely caused by or a direct result of the Veteran's military service was sufficient evidence to grant the claim. On VA examination in May 2013, the diagnoses were major depression, personality disorder, and alcohol abuse. The VA examiner did not find the Veteran to be a reliable historian because his statements were inconsistent with the service records. The VA examiner expressed the opinion that it was less likely than not the psychiatric disorder was related to military service. Analysis On the basis of the service treatment records alone, the Veteran was hospitalized for psychiatric observation and the diagnosis was inadequate personality. On separation examination in December 1964, the Veteran indicated that he had depression, and character and behavior disorder was listed as a diagnosis. The Veteran was subsequently discharged from service due to unsuitability. The inadequate personality disorder was a classification of a personality disorder, and character and behavior disorder, a change in nomenclature, was still a personality disorder. A personality disorder, variously classified, is not a disability for the purpose of VA disability compensation. 38 C.F.R. § 3.303(c). And the current major depressive disorder was not affirmatively shown to have had onset on service, and service connection under 38 U.S.C.A. § 1110 and § 1131 and 38 C.F.R. § 3.303(a) is not established. On separation examination, the Veteran gave a history of depression. The Veteran is competent to describe symptoms of depression, which is within the realm of the Veteran's personal experience. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). As there is evidence of symptoms of depression in service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) are addressed. Chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) however do not apply, because major depressive disorder is not a chronic disease listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply to a disease not listed in 38 C.F.R. § 3.309(a)). Although the current major depressive disorder was not affirmatively shown to have had onset in service under 38 C.F.R. § 3.303(a), and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply to major depressive disorder, service connection may be granted for major depressive disorder, first diagnosed after service, when all the evidence, including that during and after service establishes that the disease was incurred in service under 38 C.F.R. § 3.303(d). Lay evidence may serve to support a claim for service connection. The Veteran asserts that major depressive disorder is related to the events or circumstances of his administrative discharge from service due to unsuitability. The Veteran is competent to describe symptoms of depression, which are capable of lay observation. 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). The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The question is whether the Veteran as layperson is competent to diagnose major depressive disorder or to offer an opinion on a causal relationship between major depressive disorder and the events in service, that is, the "nexus" requirement to prove entitlement to service connection. The diagnosis of major depressive disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). As the diagnosis of major depressive disorder requires medical evidence, the disorder is not a simple medical condition that the Veteran is competent to identify based on personal observation. Also major depressive disorder is not a type of condition under case law that has been found to be capable of lay observation. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (it is generally the province of medical professionals to diagnose or label a mental condition, not the claimant). And no factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to diagnose major depressive disorder. Therefore to the extent the Veteran's lay evidence is offered as proof of the presence of major depressive disorder in service and since service and before 2007, the Veteran's lay evidence is not competent evidence, and the lay evidence is not admissible as evidence and cannot be considered as competent evidence favorable to the claim. As for the Veteran's assertion that major depressive disorder is related to the events or circumstances of his administrative discharge from service and as major depressive disorder is not capable of lay observation either as a simple medical condition under Jandreau, or by case law under Clemons, the Veteran's assertion is an inference based on facts, that is, an opinion rather than a statement of fact. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current major depressive disorder and the events and circumstances of his discharge from service. For these reasons, the Veteran lay opinion is not competent evidence of a causal relationship or nexus between the current major depressive disorder and the events in service. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's lay evidence is not competent evidence on the material issues of fact, pertaining to a postservice diagnosis, applying 38 C.F.R. § 3.303(d), and medial causation, the Board looks to the medical evidence. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. As for the Veteran describing a contemporaneous medical diagnosis by a medical professional, no medical professional has diagnosed major depressive disorder before 2008, more than 40 years after the Veteran's separation from service in 1965. As for symptoms in service as reported by the Veteran that later supports a diagnosis, there is medical evidence favorable to the claim and medical evidence against the claim. The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008). The medical evidence in favor of the claim is the opinion of the VA examiner in July 2011 that major depression and alcohol dependence were likely caused by or a direct result of the Veteran's military service, citing the Veteran's enlistment in the Army in 1964 when the war in Vietnam broke out. The service treatment records actually show that in July 1964 the Veteran was reactivated from his National Guard unit because he not attended meetings, and the Veteran had not "enlisted" to go to Vietnam. The VA examiner also relied on the facts that the Veteran desired to fight in Vietnam, that the Veteran hoped for a military career, and that depression and guilt were related to Veteran's not being chosen to fight in Vietnam. The service treatment records show that the Veteran wanted out of the Army and he had no motivation for the service. The Veteran was angry and resented that he had been reactivated for active duty, stating he had already served his time. Stated differently, there was a pattern of attempting to avoid service. And the Veteran was separated from service because of unsuitability due a personality disorder manifested by poor judgment, immaturity, indebtedness, and the inability to handle stress, as well as difficulty adapting to the military. The contrast or inconsistencies in the Veteran's statements in service and now are stark. Although the Board cannot reject medical evidence solely because it is based on a history related by the Veteran, here the Board finds the Veteran's history provided to the VA examiner in July 2011 was wholly inconsistent with the service treatment records on each fact relied on by the VA examiner and therefore the Board rejects the favorable medical evidence that major depression or alcohol dependence were likely caused by or a direct result of the Veteran's military service on grounds that the medical evidence is not credible due inconsistent statements of the Veteran. As the medical evidence is not credible, the evidence has no probative value to weigh against the other medical evidence. Coburn v. Nicholson, 19 Vet. App. 427 (2006) (reliance on a Veteran's statements renders a medical report incredible only if the Board rejects the Veteran's statements as not credible). The medical evidence against the claim is the opinion of the VA examiner in May 2013. The VA examiner found that the Veteran was not a reliable historian because the Veteran's statements were inconsistent with the service records. The VA examiner expressed the opinion that it was less likely than not the psychiatric disorder was related to military service. As the opinion considered that the Veteran's statements and history and provided a rational for the conclusion reached in the opinion, the opinion is persuasive medical evidence against the claim. As the preponderance of the evidence is against the claim of service connection, there is no doubt to be resolved, and service connection for the claimed disability is not warranted. ORDER Service connection for a psychiatric disorder, major depressive disorder, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs