Citation Nr: 1326171 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 05-06 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active duty from August 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was previously before the Board in February 2007, March 2010, November 2010 and September 2012. The case is now before the Board for final appellate consideration. FINDING OF FACT There has been no demonstration by competent medical, nor competent and credible lay, evidence of record that a psychiatric disorder other than PTSD, to include schizoaffective disorder, is related to active duty. CONCLUSION OF LAW A psychiatric disorder other than PTSD, to include schizoaffective disorder, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a February 2004 letter. Dingess notice was provided by a July 2006 letter. Accordingly, the duty to notify has been fulfilled. The claim was subsequently readjudicated, most recently in an April 2013 supplemental statement of the case. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, the report of a February 2013 VA examination, and the Veteran's statements in support of his claim. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. The Board finds that VA has substantially complied with the Board's prior remands. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). A VA examination was conducted in February 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination conducted in this case was more than adequate, as it reflects a review of the Veteran's claims file, considers all of the pertinent evidence of record, and provides a rationale for the opinion offered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Thus, there is adequate medical evidence of record to make a determination in this case, and additional development by way of another examination would be redundant and unnecessary. See 38 C.F.R. §§ 3.326 and 3.327 and Green v. Derwinski, 1 Vet. App. 121 (1991). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he incurred a psychiatric disorder other than PTSD while on active duty, and has had symptoms of a nervous disorder since service. In a September 2007 VA treatment record, the appellant reported that he had experienced emotional problems and auditory hallucinations while in Korea. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder other than PTSD. The Veteran's service treatment records, including a February 1972 separation report of medical history and a February 1972 report of separation medical examination, are negative for pertinent complaints, symptoms, findings or diagnoses. Thus, the service treatment records do not support the Veteran's claim. The Board may use silence in the service treatment records as contradictory evidence if the alleged injury, disease, or related symptoms would ordinarily have been recorded in the service treatment records. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The post-service medical records are negative for a psychiatric disorder other than PTSD for many years after the Veteran's separation from service. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). VA treatment records dated in 2000, 2000 and 2005 provide psychiatric diagnoses other schizoaffective disorder. In December 2001, the Veteran denied any psychological or emotional problems during the prior 30 days. VA treatment records dated in 2006, 2007, 2010 and 2011 provide diagnoses of schizoaffective disorder. Pursuant to the November 2010 remand, the Veteran was provided a VA examination in April 2012. However, the VA examination report indicates the form used was an Initial PTSD Disability Benefits Questionnaire. The VA examiner found the appellant had PTSD and alcohol abuse in remission. The November 2010 remand noted that since a PTSD examination form was used, it was unclear whether the VA examiner also considered whether the Veteran had other psychiatric disabilities, to include schizoaffective disorder. The report of a February 2013 VA examination provides that the examiner reviewed the Veteran's claims file, and sets forth the relevant history, the Veteran's subjective complaints, and examination results. The resulting Axis I diagnosis was schizoaffective disorder, rule out substance induced mood disorder and rule out substance dependence. The examiner expressed the opinion that the Veteran's schizoaffective disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event or illness. The examiner explained that the Veteran denied experiencing any perceptual disturbances prior to or during his military service. He also denied experiencing any perceptual disturbances until approximately 10 years ago. Accordingly, the examiner stated that the Veteran's schizoaffective disorder was not etiologically related to the Veteran's active military service. Again, the rationale for this included the fact that the Veteran was not treated for mental health problems [during active duty] and his records were silent for any complaints of any schizoaffective disorder symptoms during [active duty] or within the presumptive period following the Veteran's discharge from the military in 1972. In fact, according to the Veteran's self-report, he did not evidence symptoms of schizoaffective disorder until approximately 32 years after his military service. The Board finds that this medical opinion constitutes probative evidence against the Veteran's claim. It is based on current examination results and a review of the medical record. The examiner explained the opinion with references to the Veteran's active duty and post-service medical history. This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (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). The Board finds that the Veteran's assertions as to continuity of symptomatology of schizoaffective disorder since service are less than credible. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). As noted above, the Veteran denied all pertinent symptoms at separation. While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). The Veteran's service treatment records (containing no evidence of relevant complaints, symptoms, findings or diagnoses, and showing that he denied all pertinent symptoms at separation) and the post-service medical records (containing no evidence of a psychiatric disorder other than PTSD for many years after service, and containing evidence that his schizoaffective disorder is not related to his active duty) outweigh his contentions. In sum, the medical evidence demonstrates that the Veteran is not entitled to service connection for a psychiatric disorder other than PTSD, to include schizoaffective disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for a psychiatric disorder other than PTSD, to include schizoaffective disorder, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs