Citation Nr: 1329676 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-38 871 ) 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 an acquired psychiatric disorder, to include major depressive disorder (originally claimed as a nervous disorder). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2002. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision of the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). By that rating action, the RO, in part, denied service connection for an acquired psychiatric disorder (originally claimed as a nervous disorder). The Veteran appealed this rating action to the Board. In June 2013, the Board remanded the issue on appeal to the RO for additional substantive development. Specifically, to schedule the Veteran for a VA examination with an opinion that addressed the etiology of any currently diagnosed acquired psychiatric disorder. VA examined the Veteran in July 2013. A copy of the July 2013 VA examination report has been associated with the Veteran's physical claims files. FINDING OF FACT A chronic psychiatric disorder was not shown in service, a psychosis has not been diagnosed, and the preponderance of the evidence fails to establish that Veteran's current psychiatric disorder (variously diagnosed as anxiety and depressive disorder) is etiologically related to his active service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred or aggravated during active military service, nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service- connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. VA provided the Veteran with notice on the Pelegrini II VCAA elements in a pre-adjudication letter issued in May 2006. This letter, in part, informed the Veteran of the criteria necessary to prevail on his claim for service connection for an acquired psychiatric disorder, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letter accordingly addressed all notice elements and predated the initial adjudication by the RO in September 2006. This letter also notified the Veteran of the Dingess elements. Nothing more is required in this case. VA also has a duty to assist a Veteran in the development of the claims. This duty includes assisting him or her in the procurement of service treatment records and other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO associated the Veteran's service treatment records and identified VA treatment records with the claims files. The Veteran's statements, as well as those of family members and friends, have also been included. Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board notes that the Veteran provides a history of in- service mental health treatment while he was stationed at Fort Drum. He indicated that the treatment occurred between June and July 2000. Searches for those records have been conducted. However, both have determined that there are no treatment records pertaining to the Veteran at Fort Drum and Guthrie Ambulatory Health Care Clinic (GAHCC), dated from June 1, to July 31, 2000. See September 2011 Memorandum of Formal Finding of Unavailability and NPRC's October 2011 response to RO's request for records pertaining to the Veteran from June to July 2000 from GAHCC. In addition, pursuant to the June 2013 Board Remand, the Veteran was afforded a VA examination to determine the nature and etiology of his acquired psychiatric disorder. A copy of the July 2013 VA examination report has been associated with the Veteran's physical claims files. 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 opinion obtained in this case is more than adequate, as it is predicated on a full reading of the private and VA medical records in the Veteran's claims files. It considers all of the pertinent evidence of record, to include the Veteran's history of treatment, his own stated medical history, and provides a sufficient rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of entitlement to service connection for an acquired psychiatric disorder has been met. 38 C.F.R. § 3.159(c) (4). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, the Board finds that it may proceed with adjudication of the Veteran's claim based on the current evidence of record. II. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for certain chronic diseases, such as a psychosis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 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). The Court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved. McLain v. Nicholson, 21 Vet. App. 319 (2007). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a) ). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the Veteran has not been diagnosed as having a psychosis, the tenets of 3.303(b) have not been invoked with respect to the claim for service connection for an acquired psychiatric disorder. If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. III. Merits Analysis The Veteran seeks service connection for an acquired psychiatric disorder. He contends that he currently has an acquired psychiatric disorder that had its onset during military service. He maintains that he has continuously experienced psychiatric symptomatology, such as depression, since service discharge in August 2002. A review of the record shows that the Veteran has been diagnosed as having anxiety and various depressive disorders, to include major depression. Depressive disorder not otherwise specified was diagnosed following the July 2013 VA examination. Element (1) of the Hickson/Davidson analysis is thereby met. With respect to in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records are wholly devoid of any psychiatric complaints or clinical pathology. A May 2002 service discharge examination report shows that the Veteran was found to have been psychiatrically normal. A May 2002 Report of Medical History, reflects that the Veteran denied having had depression or excessive worry, loss of memory, nervous trouble, frequently trouble sleeping and easy fatigability. On a May 2002 Report of Medical Assessment, the Veteran reported that his health was the same when it was compared to his previous examination (i.e., enlistment examination, conducted in June 1998). He indicated that he did not intend to seek VA disability benefits. However, the Veteran is competent to state that he experienced symptoms of anxiety and depression. Thus, without necessarily delving into the credibility of these assertions, the Board finds that there is some evidence that the Veteran experienced depression and anxiety in service, which would mean that element (2) of the Hickson/Davidson analysis has also been met. Turning to the crucial question of whether there is a medical nexus between the Veteran's depressive disorder and his active service, the VA examined the Veteran in July 2013 to determine the nature and etiology of his acquired psychiatric disability(ies). After a review of the claims files, to include the Veteran's service and post-service treatment records, as well as a mental status evaluation, the examiner concluded that the Veteran's diagnosed depressive disorder had not been caused or aggravated by military service. The examiner pointed instead to multiple non-service-related factors, such as housing and financial problems, unemployment, poor compliance with medications and deteriorating medical condition, which she felt was the cause of the Veteran's depressive disorder. Moreover, in providing her negative opinion, the VA psychiatrist referenced the Veteran's service treatment records, noting that they were negative for any evidence of any psychiatric pathology; post-service treatment records, which noted that the first evidence of any psychiatric disorder was not until 2005; and, mental status evaluation. The July 2013 VA examiner's report is detailed, reflects a thorough and accurate review of the record, a recitation of the Veteran's history and mental status interview. It is the most probative evidence of record, is against the claim and is uncontroverted. Indeed, the July 2013 VA examiner's opinion is supported by the other medical evidence of record, namely a December 2011 VA treatment report reflecting that the Veteran had been diagnosed with a pituitary adenoma induced mood disorder and included Axis IV stressors, such as poor compliance with medication, financial problems and deteriorating medical condition. (See December 2011 treatment report uploaded to the Veteran's Virtual VA claims file). Consideration has been given to the Veteran's personal assertion that his current depressive disorder had its onset during service as well as those from friends and family members, who maintain that after service discharge, the Veteran was angry and unstable, which was in contrast to his personality prior to service entrance when he was confident and emotionally stable. The Court has held that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2012). However, the issue of whether the Veteran has an acquired psychiatric disorder that is related to his active duty falls outside the realm of common knowledge of a lay person. While the Veteran is competent to describe his psychological symptoms and stressors that occurred to him in service, he is not shown to have the medical expertise to diagnosis the origin of his psychiatric disability, a question that requires medical expertise that the Veteran is not shown to possess. The Veteran's reported psychiatric symptoms were considered by the June 2013 VA examiner, who attributed his depression to non-service-connected-related factors. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). This opinion is uncontroverted. In view of the aforementioned, there is no basis for granting service connection for an acquired psychiatric disorder in this case. There is no basis for reasonable doubt so as to resolve this matter in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The preponderance of the evidence is against the claim. Thus, the Veteran's claim of service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. ORDER Service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs