Citation Nr: 1326915 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-28 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disorder. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION The Veteran had active service from October 2002 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decision of the Los Angeles, California, Regional Office (RO). Based on the evidence and the benefits sought on appeal, the issues have been recharacterized on the title page. In September 2010, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board and a transcript of the proceeding is of record. In a June 2013 correspondence, the Board notified the Veteran of his right to provide testimony before a VLJ who will decide his claims and requested he indicate a desire to provide such testimony or waive such right. See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). After more than 30 days, the Veteran has not responded to this communication; therefore, as indicated in the June 2013 correspondence, the Board will assume he does not want another hearing and will proceed with the adjudication of his appeal. The appeal was previously remanded in February 2011. Subsequent to the Board's remand, an April 2012 decision RO granted service connection for right shoulder tendonitis and impingement syndrome; that issue is no longer before the Board. Following issuance of the August 2012 SOC, the Veteran submitted additional relevant evidence and, in June 2013, his representative waived initial RO consideration of the evidence. The service connection claim for tinnitus is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT A psychiatric disorder was not shown to have been present in service; was first documented more than one year after service; and is unrelated to an injury, disease or event in service. CONCLUSION OF LAW The criteria to establish service connection for a psychiatric disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to assist and notify 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). March 2009 and March 2011 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any further private/VA treatment records pertinent to the appeal VA should seek to obtain on his behalf. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). A May 2012 VA examination was conducted and an opinion was obtained; the Veteran has not argued, and the record does not reflect, that the examination and opinion are inadequate for rating purposes because the provided report provides sufficient evidence and opinion to make a fully informed assessment as to the claimed psychiatric disorder. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The record does not indicate that there is any additional evidence, relevant to the issue decided that is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, there is no evidence that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case; the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Psychiatric disorder Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. Service treatment records are negative for psychiatric treatment or complaints. A January 2009 VA hospitalization record is the first record of the Veteran obtaining psychiatric treatment; his parent reported he had onset the prior month. The Veteran detailed law school and the death of his roommate as events related to his psychiatric symptoms. The VA psychologist diagnosed a psychotic disorder, not otherwise specified, but provided no etiological opinion. A February 2009 VA psychiatric treatment record indicates that the Veteran related his symptoms to the death of his roommate in December 2008; and reported symptoms "may have been ongoing since" separation but characterized service as enjoyable. The VA psychiatrist diagnosed psychiatric disorder, not otherwise specified, having its onset 2 months prior. At a May 2012 VA examination the Veteran conveyed that psychiatric symptoms increased in severity after having an onset in September 2008, when he commenced law school. The Veteran extensively detailed his military service experiences, stating the experience was "very good." The examiner diagnosed schizophrenia and a psychotic disorder, not otherwise specified, opining that no psychiatric disorder had its onset in service or was related to military service but was more likely related to post-service stressors (e.g., the death of a friend, educational stresses, and relationship difficulties). The examiner cited medical evidence, current findings, and the Veteran's account of symptomatology to support this proposition. Merits The Veteran is competent to provide an account psychiatric symptoms and in-service stressors. However, he lacks the necessary training and expertise to provide a competent medical diagnosis or etiological opinion relating any such disability to service. To the extent he attributes his current psychiatric disorder to service, his opinion is of no probative value. In fact, aside from his suggestion that psychiatric symptoms may have continually been present since separation, in a February 2009 VA psychiatric treatment record, the Veteran has continuously placed the onset of symptoms years after separation, including a definitive statement to this effect in the same VA treatment record. The January 2009 VA hospitalization record also documents the Veteran's parent's report that his symptoms had their onset one month prior, which is consistent with his definitive statements on this matter when obtaining VA treatment, and at his Board hearing. Bd. Hearing Trans., Sep. 15, 2010, pp. 7-8. The probative evidence of record places the onset of psychiatric symptoms in December 2008 at the earliest. 38 C.F.R. §§ 3.303(b), 3.309(a). Given the lack of any record of treatment related to psychiatric symptoms for almost 3 years after separation, and his generally consistent account of the onset of such symptoms, any evidence suggesting a continuity of symptomatology is not credible and is of no probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The May 2012 VA examiner provided a cogent opinion, indicating there was no likely relationship between any diagnosed psychiatric disorder and service. The examiner specifically related the diagnosed disabilities to post-service occurrences (e.g., law school, the death of a friend, and breaking up with a girlfriend). The opinion is consistent with the other probative evidence of record. The opinion is highly probative because it is clear, based on relevant medical expertise, analysis of current examination findings, relevant medical evidence, and the Veteran's account of symptomatology. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no probative evidence of record that the Veteran has a psychiatric disorder related to service. The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a psychiatric disorder is not warranted. ORDER Service connection for a psychiatric disorder is denied. REMAND The Veteran has identified additional relevant VA treatment records, generated since May 2012, as well as private treatment records. VA must attempt to obtain these records on remand. VA must obtain a supplemental medical opinion considering the complete record to properly assess the etiology of the claimed tinnitus disability. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf the records of the UCLA Arthur Ashe Student Health and Wellness center, related to his claimed tinnitus disability. 2. Obtain all outstanding VA treatment and/or hospitalization records related to the Veteran's tinnitus, dated since May 2012. Any negative response(s) must be in writing and associated with the claims folder. 3. Then, obtain a supplemental medical opinion from an appropriate medical professional, regarding the Veteran's claimed tinnitus. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to opine whether it is at least as likely as not (i.e., probability equal to or greater than 50 percent) that the disability: (i) had onset in service or within one year of separation; (ii) is related to military service or any event therein, including noise exposure related to the Veteran's duties as a cryptologic linguist. The provided examination report must reflect consideration of both the medical and lay evidence of record (e.g., the Veteran's statements, a March 2011 VA examination report, a private September 2012 private radiology report, and any further private treatment records obtained) and set forth a complete rationale for all findings and conclusions. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond give medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, of the examiner does not have the needed knowledge and training). 4. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs