Citation Nr: 1324094 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-21 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability, including anxiety and major depression. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1962. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for mental depression, severe headaches, and anxiety condition and entitlement to individual unemployability. She perfected her appeal with regard to the claims of service connection for depression, headaches, and anxiety only. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is associated with the claims file. In August 2012, the Board granted service connection for headaches and remanded the remaining issues for further development. That grant was effectuated in an August 2012 rating decision. This appeal originally included separate service connection claims for anxiety and major depression. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). These conditions are both psychiatric disabilities, and the Veteran's statements regarding the symptoms of these disabilities overlap. As such, the Board has combined these issues into the single issue of service connection for an acquired psychiatric disability, as reflected on the title page. FINDING OF FACT The Veteran does not have an acquired psychiatric disability attributable to her military service. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service connection claim. Accordingly, 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 Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in November 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting her in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, her statements in support of the claim are of record, including testimony provided at a March 2012 hearing before the undersigned. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's August 2012 remand, VA sent the Veteran an August 2012 letter requesting that she identify any additional private treatment records and that she complete and return an Authorization and Consent to Release Information form for any record identified. Additionally, VA sought additional Social Security Administration (SSA) records relating to the September 1997 decision already of record. In an October 2012 response to VA's request, SSA stated that the Veteran's records had been destroyed. In a February 2013 formal finding, VA recounted the ultimately unsuccessful steps taken to attempt to locate these additional records. Finally, VA provided the Veteran with a medical examination in December 2012. This examination contained all information needed to rate the disability. Indeed, the examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation, then offered a pertinent opinion with respect to the claimed disabilities, accompanied by a rationale. Therefore, this examination is adequate for VA purposes. Thus VA has substantially complied with the August 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis As an initial matter, the Board notes that the Veteran has stated that her symptoms began before service. See e.g., September 2009 statement, March 2012 hearing testimony, and April 2013 statement. Her July 1959 entrance examination shows a normal psychiatric clinical evaluation. In her accompanying Report of Medical History, the Veteran denied depression, excessive worry, and nervous trouble of any sort as well as ever being a patient at a mental health facility. Generally, a veteran is presumed to be in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). In order to rebut the presumption of soundness, the record must contain clear and unmistakable evidence that the Veteran's acquired psychiatric disability pre-existed her active service and clear and unmistakable evidence indicating it was not aggravated during service. 38 C.F.R. § 3.304(b). In this case, the evidence that the Veteran's acquired psychiatric disability pre-existed her active duty service is not clear and unmistakable. While there is lay evidence asserting such pre-existence, there is also contradictory lay evidence indicating an in-service onset or a post-service onset of the Veteran's symptoms. As a chronic condition any psychosis, such as schizophrenia or major depressive disorder with psychotic features or melancholia, may be presumed to have been incurred in or aggravated by service if it became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. The first indication of a psychosis in the record came in a September 1997 SSA Psychiatric Review, more than 35 years after service. The record does not contain any earlier records of treatment or evaluation for psychosis. Moreover, there is no indication that the Veteran experienced any such symptoms within a year of service. Therefore, there is no indication that a psychosis was manifested to a degree of ten percent or more within one year after discharge. Service connection on a presumptive basis is not warranted. See 38 C.F.R. § 3.307(a)(3). Although the Veteran is not entitled to service connection on a presumptive basis, she is not precluded from establishing service connection for a psychiatric disability with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). To prevail on a claim of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). During the pendency of this appeal, the Veteran has been diagnosed with schizoaffective disorder and schizophrenia, at times with the qualifier of depressive type. See e.g., VA Outpatient Treatment Records, Kaiser Permanente treatment records. The Board notes that prior to her claim, the Veteran had been diagnosed with additional psychiatric disorders including major depressive disorder and bulimia. See March 2006 private treatment record. Psychiatric symptoms were not noted in service. Indeed, both her July 1959 entrance examination and her August 1962 separation examination show normal psychiatric clinical evaluations. The Veteran submitted a letter from her fellow service member, D.R., that recounted the Veteran's inability to afford to visit her family in Arizona, crying into her pillow, and grief when her grandmother died and she could not "be there." The Veteran also described problems in service due to her difficulties with English and math. (The Veteran and D.R. are competent to report on lay-observable symptoms such as stress and crying. Layno v. Brown, 6 Vet. App. 465 (1994).) The Board also notes that the Veteran reported an attempted sexual assault when she, D.R., and another fellow service member went to watch the fireworks in Arlington, Virginia. See January 2011 statement. A history of one attempted military sexual trauma was noted at VA mental health intake in July 2012. To date, it has not been implicated in the Veteran's current psychiatric disability. Furthermore, as the Veteran has not been diagnosed with posttraumatic stress disorder (PTSD), the obligation to corroborate this account with alternative sources under 38 C.F.R. § 3.304(f) is not triggered. This incident was not mentioned in earlier treatment records or in D.R.'s statement and the Veteran did not report it during her December 2012 VA examination. With regard to the third and final requirement for direct service connection of a nexus between the Veteran's service and her current psychiatric disorder, VA scheduled the Veteran for a December 2012 mental health examination. This examiner opined that the Veteran's disorder was less likely as not related to her military service, noting the passage of time between the Veteran's service and her recorded symptoms and the lack of evidence corroborating her claims of symptoms during or immediately following service. The examiner specifically addressed D.R.'s statement, noting that it was not clear if the symptoms described were an adjustment problem or clinical depression. The Veteran has not submitted a medical nexus opinion to rebut the December 2012 VA examiner's. The Board has also considered the Veteran's lay assertions that her psychiatric disability is related to stress during military service. In this regard, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, given the passage of time, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Service connection may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a)). In this case, the first record of a psychiatric disability is the SSA records from 35 years after service. Private treatment records from April 1998 note the Veteran's first hospitalization for a major depressive episode was approximately 20 years prior. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997)(observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). This roughly corresponds to the subjective medical history provided by the Veteran's daughter's in March 2007 private treatment records, in that the Veteran's daughter reported psychotic episodes dating back to when she (the Veteran's daughter) was 13 years old. (The Veteran's daughter was born after the Veteran's separation from service.) Based on these accounts, the Veteran was first treated for psychiatric symptoms more than a decade after she separated from service. Additionally, the Board has considered the Veteran's lay statements regarding the onset of her symptoms. Unfortunately, these statements have varied widely, with some treatment records noting an onset of symptoms when the Veteran was in her thirties (well after service), some noting an in-service onset, and some noting a pre-service onset as early as age 12. Additionally, the Veteran has been repeatedly found to be a poor historian by her healthcare providers. See e.g., January 2008 and July 2008 private treatment records; see also October 2009 letter from private doctor noting the Veteran's memory impairment. While the lay evidence of an in-service onset of symptoms would be most favorable to the Veteran, the inconsistency prevents the Board from giving much weight to the Veteran's statements, particularly when the lay evidence created prior to her claim for service connection generally reports a post-service onset of symptoms. Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence."). Thus, the weight of the evidence is against a finding of continuity of symptomatology. For the reasons stated, the Board finds that service connection for an acquired psychiatric disability is not warranted, and this claim is denied. ORDER Service connection for an acquired psychiatric disability is denied. ___________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs