Citation Nr: 1330301 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 06-20 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to May 1972. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the RO which denied entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran filed a notice of disagreement (NOD) in February 2008. A statement of the case (SOC) was provided on June 2008 and the Veteran perfected his appeal with the timely submission of a VA Form 9 on August 2008. Although the Veteran initially requested a hearing before the Board, in February 2012 and May 2012 submissions via the Veteran's representative, he requested that the hearing be cancelled and that his case decided on the evidence of record. As such, the Board considers his hearing request withdrawn. 38 C.F.R. § 20.704. This claim was previously before the Board in November 2009, January 2011 and was remanded on both occasions for further development. The case was again before the Board in August 2012, in which the issue of entitlement to service connection for PTSD was denied. Thus, that discrete issue will not be discussed as part of the decision below. Although the matter of service connection for an acquired psychiatric disorder was developed and certified (by the RO) as a claim for service connection for PTSD, the case law mandates that, in appropriate cases, VA consider such claims more broadly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, in August 2012, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD for further development. That development having been completed, this issue is once again before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The evidence of record establishes that an acquired psychiatric disorder, not including PTSD, was not manifested in service or within one year after service, is not otherwise shown to be related to active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA Under 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran received complete VCAA-compliant notice, to include the disability-rating and effective-date elements of a service connection claim in letters dated December 2006, June 2008, and March 2009. The Veteran has not shown any prejudice in regard to the timing or content of the notice provided. See Shinseki v. Sanders, 129 S.Ct.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). VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service treatment records (STRs) private treatment records, and VA treatment records have been obtained and associated with the claims file. The Veteran was provided with a VA examination in March 2010, with an addendum opinion in April 2013. The examination was adequate because it contained a history obtained from the Veteran and thorough examination relevant to the applicable rating criteria. There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. In November 2009 the Board remanded the claim for an examination, which was conducted on March 2010, and to obtain outstanding VA treatment records, which were associated with the claims file. In January 2011, the Board remanded the claim in order to provide the Veteran with a Board hearing, which the Veteran subsequently cancelled in letters from his representative dated February 2012 and May 2012. In August 2012, the Board remanded the claim in order to obtain an addendum opinion to the March 2010 VA examination, which was obtained in April 2013. The Board finds on review that the RO substantially complied with the requirements articulated in the Board's remand. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the Originating Agency or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the appellant in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Legal Criteria Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d) . Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may also be granted for chronic disabilities, such as organic disease of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b) (2012). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 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 her 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 claims. 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 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Background The Veteran contends that his current psychiatric disorder, described to include depression and anxiety, is due to his experiences serving aboard a submarine in the service. In particular, the Veteran has indicated that he was removed from submarine service, despite excellent duty performance, for anxiety. To this effect, the Veteran has stated that he was examined by doctors at a facility in New London, Connecticut. The Veteran has indicated that he experienced depression intermittently throughout his life, with bouts in the 1980s and 1990s, particularly around the time of his divorce. The Veteran also reported that in 2006, he suffered from a cerebral vascular accident and, since that time, has suffered from symptoms which include depression and anxiety that he related to his military service. A June 2006 VA Mental Health Intake Assessment shows that the Veteran reported that he experienced some traumatic situations while aboard a submarine in military service. The Veteran stated that he has been having nightmares of these traumatic situations since his stroke in June 2006. He shared that he has had some intrusive thoughts of these in the past, but now they have become nightmares and waking him up. A diagnosis of depression was indicated. A November 2006 preventative health management note shows that the Veteran had a positive screen for depression. A November 2006 mental health initial assessment shows that the Veteran received treatment for depression. He stated that he currently has difficulties with his sleep, intermittent flashbacks regarding incidents when he was in submarines. He reported that he was locked in a compartment under water; one man had his back broke. He said they were in the Mediterranean and a Russian sub just missed us and almost collided with us. The Veteran reported that he began having symptoms when he was fifty years old. The VA social worker indicated that the Veteran had depression and sleep disorder. The DSM IV Diagnoses included a depressive disorder, NOS. An April 2008 VA psychiatry note shows that the Veteran was assessed with having met the criteria for dysthmia and anxiety disorder. A December 2008 mental health note shows that the Veteran stated that he had no combat situations, but was in a submarine which flooded, and he thought they were all going to die. The Veteran reported experiencing flashbacks, nightmares, startle reflexes and racing thoughts. He related having problems staying asleep and with early awakening. The Veteran was noted to have symptoms of depression. Following mental status examination, the diagnoses include depression not otherwise specified. The Veteran was afforded a VA mental examination in March 2010. During this examination, the VA examiner elicited information from the Veteran regarding the account of his experiences aboard the USS Cobbler. The Veteran related three incidents of the USS Cobbler being in the vicinity of a Russian vessel, destroyer, and submarine. In describing each of these incidents, the Veteran admitted that on each occasion the Russian's presence posed no threat to the USS Cobbler, that the situation was not dangerous, and that the Russian soldiers, in fact, waved at them before leaving on one occasion. Following mental status evaluation, which included a review of the Veteran's claims file, the March 2010 VA examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood and found that these disorders did not have their onset during the Veteran's military service, nor were they caused by any incident or event during the Veteran's military service. However, the VA examiner did not provide any rationale for his opinion. An addendum to the March 2010 VA examination was obtained in April 2013. Upon review of the claims file and his prior examination, the VA examiner opined that the Veteran did not manifest a psychiatric disorder, namely an adjustment disorder with mixed anxiety and depressed mood, which would have its onset during military service. The examiner found this despite the Veteran's showing that he was declared "environmentally unadaptable" for submarine duty based upon situational anxiety and the flooding incident aboard the submarine. Further, the examiner found that there was no medical evidence showing that the Veteran's psychiatric disorder was caused or incurred by military service or that it manifested within one year after leaving service. Upon further review of the evidence, the examiner found that the circumstances surrounding the decision to find the Veteran unfit for submarine service related more to the fact that the Veteran had consistently opposed serving aboard a submarine throughout his service, as well as the fact that his wife had anxiety about his service aboard a submarine, and that this was the situational anxiety to which the decision referred. Further, the examiner could not find any medical documentation substantiating the Veteran's claim that he was seen by doctors at New London, Connecticut, upon which the decision to find him unfit for submarine service was allegedly made. The Veteran's STRs otherwise contained no discussion of psychiatric complaints or diagnoses. The examiner further found that the Veteran's bouts with depression during the 1980s and 1990s were more situational in relation to his divorce. Last, the examiner found that the Veteran's current presentation of an adjustment disorder with mixed anxiety and depressed mood was more the result of the Veteran's cerebral vascular accident and more present situational anxiety. Analysis Based upon the evidence of record, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, so the appeal must be denied. The record evidence shows that there is a current disability, based upon the Veteran's diagnosis of adjustment disorder with mixed anxiety and depressed mood. Thus, the issue turns upon whether there is medical evidence of an event, injury, or disease in service and, if so, evidence of a nexus between the claimed in-service disease or injury and the present disability. See Hickson, 12 Vet. App. at 253. Here, the Veteran's STRs showed that he did not have complaints or a diagnosis of any psychiatric disorder during service or upon discharge from military service. Although the Veteran's personnel records indicate that he was removed from his duty aboard a submarine due to situational anxiety, there is nothing in the record indicating that this was based upon any medical finding, and th other evidence of record shows that this action was due to the Veteran's not wanting to be on a submarine and his wife's apprehensions regarding such service. The Board, thus, finds that the medical evidence of record is absent for evidence of an event, injury, or illness that occurred within an applicable period of active service. Additionally, following his discharge from the service, the first evidence showing the diagnosis of a psychiatric disorder occurred in 2006, over 35 years after the Veteran's discharge from military service. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, there is no competent evidence or opinion even suggesting that there exists a medical nexus between any currently diagnosed psychiatric disorder and service. None of the treatment records of record reflect any such comment to that effect, and the Veteran has not presented or identified any such existing medical evidence or opinion. To this effect, the only medical opinion of record giving an opinion as to etiology, as seen in the April 2013 VA examination addendum opinion, found that the Veteran's psychiatric disorder appeared to be more likely related to stressors post-service such as his first divorce and later cerebral vascular accident. In regard to continuity of symptoms, the Board find that the Veteran's claimed psychiatric disorder, as it involves a psychosis, is properly afforded such consideration, as it is one of the enumerated conditions in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331. In this regard, the Board finds that the Veteran has not provided competent and credible testimony that his symptoms of a psychiatric disorder have continued since service discharge. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is competent to testify about the onset and continuation of psychiatric disorder, as symptoms of psychoses are an observable symptom within the realm of his personal knowledge. The Board also finds that the Veteran is credible about experiencing symptoms of depression in the 1980s and 1990s, as well as his current manifestations beginning in 2006. However, the overall weight of the evidence is against a showing of continuity. Even if the Board were to take wide latitude to accept the Veteran's notation of situational anxiety in service as a point of onset, there is no evidence, including medical or lay statements, showing any complaints or diagnoses from the time of service until the 1980s to support any contention of continuity. For all the foregoing reasons, service connection for a psychiatric disorder must be denied. While the Board is sympathetic to the Veteran's claims, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of an etiological relationship between the Veteran's psychiatric disorder and his military service, the Board concludes that service connection is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence are against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55. ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs