Citation Nr: 1330692	
Decision Date: 09/24/13    Archive Date: 09/30/13

DOCKET NO.  10-28 041	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran served on active duty from June 1972 to January 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

The Board notes that inasmuch as entitlement to service connection for PTSD was denied in an unappealed rating decision dated in August 2009, that issue is not part of the current claim for service connection for an acquired psychiatric disability.

In June 2011, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record.

The Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD in an August 2011 decision.  Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In a June 2012 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran moved the Court to vacate the August 2011 decision as to that issue.  The Court granted the JMR in an August 2012 Order.  This issue returns to the Board for further consideration and in March 2013 the Board remanded it for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.  



FINDING OF FACT

The most probative evidence of record shows that an acquired psychiatric disorder other than PTSD was not caused by military service and a psychosis did not manifest itself to a compensable degree within one year of service.


CONCLUSION OF LAW

An acquired psychiatric disorder other than PTSD was not incurred in or aggravated by military service and it may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

Next, the Board finds that letters dated in December 2009 and May 2013 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  Moreover, to the extent that the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the January 2010 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the July 2013 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  Furthermore, the Board finds that even if the RO failed to provide adequate 38 U.S.C.A. § 5103(a) notice that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, supplemental statement of the case, and Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the June 2011 Board hearing, the Veteran was assisted at the hearing by an accredited representative and the representative and the undersigned asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service.  They also asked questions to draw out the current diagnosis and state of the Veteran's psychiatric disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and his post-service VA and private treatment records.  

In its September 2013 Hearing Memorandum, the Veteran's representative claimed that it was prevented from making a sound argument in support of the Veteran's claim without additional development because the VBMS record is missing the Veteran's service treatment records and medical records cited to by the May 2013 VA examiner.  However, the Board's review of VBMS shows that the only records that the Veteran's representative specifically identified as missing, his service treatment records, are in VBMS.  See, for example, records received in October 1994, June 1998, and July 2008 entitled Medical Treatment Records-Government Facility; and received in April 2009 entitled STR-Medical.  Moreover, the Board's review of VBMS fails to reveal any indication that this record is not complete.  In fact, with over 400 distinct documents dating back to 1971, the Board finds that the VBMS record is complete.  Therefore, notwithstanding the Veteran's representative's claims to the contrary, the Board finds that VA has not further duty to assist in the development of the claim.

The Veteran was provided a post-remand VA examination in May 2013 that the Board finds is adequate to adjudicate the claim and satisfies the Board's March 2012 remand directives.  The Board has reached this conclusion because after a review of the record on appeal and a comprehensive examination of the claimant the examiner provided an opinion as to the diagnosis and origins of the psychiatric disorder which opinion was based on evidence found in the claims file.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA and VBMS.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran contends that his current psychiatric disorder is due to his military service.  In this regard, at his hearing before the undersigned the Veteran testified that he essentially drank to avoid his recollections of service.  He also stated that he was troubled by the image of a dead comrade in Germany.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 such as a psychosis.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including psychoses, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309. 

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

As to a current disability, post-service treatment records document the Veteran's complaints and/or treatment for acquired psychiatric disorders variously diagnosed as, among other things, substance in-induced mood disorder, depressive disorder, poly-substance dependence, and an adjustment disorder.  See, for example, VA treatment records dated from May 2004; and VA examination dated in May 2013.

As to service incurrence under 38 C.F.R. § 3.303(a), at the December 1973 separation examination the Veteran checked off a box indicating yes to the question of whether he had ever attempted suicide.  Moreover, the Veteran is both competent and credible to report on what he can see and feel while on active duty including reporting on observable symptoms of a psychiatric disorder even when not documented in his service treatment records.  See Davidson, supra.  

As to the service treatment records, the Board notes that they were otherwise negative for any complaints or treatment for a psychiatric disorder including a mood disorder or substance abuse disorder.  As to the Veteran checking off a box indicating yes to the question of whether he had ever attempted suicide at his December 1973 separation examination, the Board notes that on the same for he answered no to questions about excessive worry or depression.  Moreover, the psychiatric clinical evaluation conducted at the time of the December 1973 separation examination was normal.  This medical opinion is not contradicted by any other medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Furthermore, the separation examiner also noted that the Veteran denied any other suicidal ideation.

As to the lay claims by the Veteran, the Board finds that diagnosing an acquired psychiatric disorder other than PTSD requires special medical training that the claimant does not have and therefore it is a determination "medical in nature" and not capable of lay observation.  See Davidson, supra.  Therefore, since layperson are not capable of opining on matters requiring medical knowledge, the Board finds that his lay claims regarding his having an acquired psychiatric disorder other than PTSD while on active duty is not competent evidence.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); See also Bostain v. West, 11 Vet. App. 124, 127 (1998).   Moreover, as explained in more detail below, the Board finds that the post- service treatment records, which are negative for complaints and/or treatment for or a diagnosis of an acquired psychiatric disorder other than PTSD for decades after his separation from active duty, more probative than any lay claims found in the record regarding the claimant having symptoms off and/or a diagnosis of a acquired psychiatric disorder other than PTSD while on active duty.   

Accordingly, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than PTSD based on in-service incurrence must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

As to the presumptions found at 38 C.F.R. §§ 3.307, 3.309(a), the post-service record does not contain any evidence of the Veteran having a psychosis, much less a compensable psychosis, within one year of separation from active duty in 1974 because the first diagnosis does not appear in the record until many years after service in 2004.  Accordingly, entitlement to service connection for an acquired psychiatric disorder other than PTSD must be denied on a presumptive basis.  38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309(a).

As to post-service continuity of symptomatology under 38 C.F.R. § 3.303(b), the Board finds that the length of time between the Veteran's separation from active duty in 1974 and the first complaints and treatment for an acquired psychiatric disorder other than PTSD in 2004, to be compelling evidence against finding continuity.  Put another way, the three decade gap between the Veteran's discharge from active duty and the first evidence of the claimed disorder weighs heavily against his claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the Veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

The Board acknowledges, as it did above, that the Veteran is competent to give evidence about what he sees and feels; for example, the claimant is competent to report that he had problems with observable adverse psychiatric symptomatology post-service.  See Davidson, supra.  

However, upon review of the claims file, the Board finds that any claim by the Veteran regarding his having an acquired psychiatric disorder other than PTSD since service are not credible.  Such claims are contrary to what is found in the service medical records including the December 1973 separation examination which specifically reported that his psychiatric clinical evaluation was normal.  Likewise, the Board finds that the claims by the Veteran are contrary to what is found in the post-service medical records which indicate that his acquired psychiatric disorder is due to poly-substance abuse which poly-substance abuse was not documented in his service treatment records.  Similarly, the Board finds that the claims by the Veteran are contrary to the May 2013 VA examiner's opinion that the Veteran's current psychiatric disorder was caused by his post-service poly-substance abuse. 

In these circumstances, the Board gives more credence and weight to the normal separation examination and the post-service diagnoses that attribute the Veteran's psychiatric disorder to his post-service poly-substance abuse than the appellant's lay claims.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases).  

Therefore, because the most probative evidence of record does not show complaints, diagnoses, and treatment for the claimed disorder until many years after the Veteran's 1974 separation from active duty, the Board finds that entitlement to service connection for an acquired psychiatric disorder other than PTSD based on post-service continuity of symptomatology must be denied.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(b).

The Board will next address service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d).  In this regard, the Board notes that the record is negative for a competent and credible medical opinion finding a relationship between the Veteran's current acquired psychiatric disorder other than PTSD and a disease or injury of service origin.  See 38 U.S.C.A. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein).  In fact, the May 20013 VA examiner, after a review of the record on appeal and an examination of the Veteran, opined that it is less likely than not that it was related to serviced.  Specifically, the examiner opined as follows:

Based on a review of the electronic folder, CPRS records, clinical interview, and Remand instructions, it is the opinion of this examiner that the Veteran's currently diagnosed mental health issues are related to substance abuse and are less likely as not related to military service.  The Veteran has received various diagnoses over the years including depression, mood disorder, personality disorder, substance abuse disorders, and adjustment disorders.  The clinical presentation has varied slightly but the overall predominant (and current) presentation is that of long-term substance abuse disorder with related mood disturbance and personality factors which are less likely than not related to military service 

This opinion is not contradicted by any other medical opinion of record.  See Colvin, supra.

As to the lay assertions that the claimant's acquired psychiatric disorder other than PTSD was caused by service, the Board finds the April 2013 VA examiner's medical opinion more probative than any lay account in light of the examiner's review of the claims folder, medical knowledge and training, and in light of the explanation offered in support of the assessment.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).  Moreover, the Board finds that diagnosing an acquired psychiatric disorder other than PTSD requires special medical training that lay persons do not have and therefore the presence of the disorder is a determination "medical in nature" and not capable of lay observation.  See Davidson, supra.  Thus, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that their opinions that this disorder was caused by service is not competent evidence.  See Jandreau, supra. 

Based on the discussion above, the Board finds that the most probative evidence of record shows that there is no causal association or link between the Veteran's post-service acquired psychiatric disorder other than PTSD and an established injury or event of service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d); Rabideau, supra.  Therefore, the Board finds that service connection for an acquired psychiatric disorder other than PTSD is not warranted based on the initial documentation of the disability after service.  Id.
 
Accordingly, the Board must conclude that the weight of the evidence is against the claim of service connection an acquired psychiatric disorder other than PTSD.  See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309.  

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the most probative evidence of record is against the claim; the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for an acquired psychiatric disorder other than PTSD is denied.



____________________________________________
JOHN H. NILON
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs