Citation Nr: 1326742 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-18 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected left eye disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active military service from February 2003 to January 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In August 2010 and February 2013, the Board remanded the case to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the April 2013 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board's prior remands addressed the Veteran's claim for service connection for a left eye disorder, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. This claim was granted in a February 2013 Board decision. A review of the Virtual VA paperless claims processing system reveals VA Medical Center (VAMC) treatment records from August 2008 to January 2013 that are pertinent to the present appeal. FINDING OF FACT Based upon the weight of the evidence, at no time during the appeal period was the Veteran diagnosed with any psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include as secondary to a service-connected left eye disorder, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Compliance with Prior Board Remands The Board observes that this case was previously remanded in August 2010 and February 2013. The purpose of the August 2010 remand was to obtain a VA examination to determine if the Veteran's left eye disorder was related to his active duty service. VA eye examinations were conducted in February 2011 and May 2012 and service connection for an eye disability was granted in a February 2013 rating decision. The February 2013 Board decision remanded the case to obtain a VA examination to determine whether the Veteran had a psychiatric disorder related to service, to include his now service-connected left eye disorder. The record documents that a VA mental health examination was provided to the Veteran in March 2013. This VA examination was adequate. See 38 C.F.R. § 3.159(c)(4). It appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist The 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). Appropriate notice was provided in January 2006 and March 2006 letters. As for the duty to assist, the Veteran's service treatment records (STRs) and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board notes that the Veteran's STRs from 2004 are unavailable. A June 2012 memorandum sets forth the RO's efforts to locate the STRs and the Veteran was notified in a June 2012 letter that such records were unavailable. The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran did not respond to the RO's March 2013 request for information, which included Authorization and Consent Forms to obtain medical treatment records from Dr. H. J. M. A prior authorization form from January 2006 expired after 180 days and cannot be used. The record does not otherwise indicate any additional relevant medical records that have not been obtained and associated with the Veteran's file. One VA examination has been conducted in connection with the current claim for service connection for a psychiatric disability, to include as secondary to a left eye disorder. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The March 2013 VA mental health examination was adequate as the examiner considered the entire record, noted the Veteran's medical history and addressed relevant evidence. VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). III. Service Connection The Veteran contends that service connection is warranted for a psychiatric disorder, to include as secondary to a left eye disorder. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show that: (1) a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993). 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). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue of diagnosing a psychiatric disorder, to include as secondary to a left eye disorder, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Therefore, medical evidence will be required to establish a medical diagnosis of the Veteran's claimed psychiatric disorder. In deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to a veteran). There is no evidence of complaints, treatment, or diagnosis of a psychiatric disorder in the Veteran's STRs or post-service VAMC treatment records. The Board notes that the Veteran's 2004 STRs are unavailable. In cases were records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim and to explain the reasons and bases for the decision. See Russo v. Brown, 9 Vet. App. 46 (1996). The only medical evidence of a psychiatric disorder is a January 2006 letter from the Veteran's private physician, Dr. H. J. M., wherein he states the Veteran is being treated for dysthymic disorder and generalized anxiety episodes associated with his left eye condition. The Veteran saw Dr. H. J. M. in 2005 for two to three sessions due to problems he encountered adjusting to the loss of vision in his left eye. See VA Mental Health Examination, March 2013. The Veteran stated that he felt his two to three sessions with Dr. H. J. M. were helpful and had not seen the need for further services. Id. Conversely, the Veteran previously claimed he was suffering from "a nervous breakdown" and "anxiety" as a result of the vision loss in his left eye. See Veteran's Statement in Support of Claim, May 2005; see also Notice of Disagreement, July 2006. In March 2013, the RO sent the Veteran Authorization and Consent Forms in an attempt to obtain medical treatment records from Dr. H. J. M. However, the Veteran did not respond to the RO's request and no medical treatment records from Dr. H. J. M. have been acquired. The January 2006 private medical opinion from Dr. H. J. M. provides no indication that the doctor reviewed the Veteran's prior medical history, which showed no complaints, diagnosis or treatment for psychiatric disabilities. See Sims v. Nicholson, 19 Vet. App. 453, 458-59 (2006). Additionally, the private medical opinion cites to no supporting clinical data and provides no detailed rationale as to why the doctor diagnosed the Veteran with dysthymic disorder and generalized anxiety episodes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the 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"). Based on the foregoing issues with Dr. H. J. M.'s medical opinion, it is of limited probative value. In contrast, the record contains a through and highly probative March 2013 VA mental health examination that finds no diagnosis of any psychiatric disabilities. The examiner reviewed the Veteran's claims file, his prior lay statements and obtained his pertinent medical history, including his 2005 sessions with Dr. H. J. M. The examiner found no psychotic processes were evident or endorsed. The Veteran was alert and oriented in all spheres, with logical and coherent thought processes and fluent speech, judgment and insight appeared intact, affect was appropriate to content and no acute distress was observed. The Veteran's global assessment of functioning (GAF) score was 85, reflecting good functioning in all areas with no more than everyday problems or concerns. The examiner's finding of no diagnosis of a mental disorder was based on the examiner's complete review of the Veteran's claims file, clinical interview of the Veteran and clinical impressions. This examination is therefore afforded significant probative value. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Service connection may not be granted without competent medical evidence of a current disability. See Shedden, 381 F.3d at 1167; see also Brammer v. Derwinski, 3 Vet. App. 223 (1992). After weighing the medical opinions in the record, the Board finds the March 2013 VA medical examination more probative than the private medical opinion of Dr. H. J. M. Based upon the weight of the evidence, at no time during the appeal period did the Veteran have a diagnosis of any psychiatric disorder. As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include as secondary to a left eye disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include as secondary to a left eye disorder, is denied. See 38 U.S.C.A. §5107. ORDER Service connection for a psychiatric disorder, to include as secondary to a service-connected left eye disorder, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs