Citation Nr: 1330695 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 12-24 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as secondary to service-connected, bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to February 1953. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision by a Department of Veterans Affairs (VA) Special Processing Unit in Cleveland, Ohio, known as the Tiger Team. Jurisdiction over the case was subsequently returned to the Regional Office (RO) in New York, New York. In February 2013, the Board remanded this case for additional evidentiary development. While the case was in remand status, the issues of entitlement to service connection for bilateral hearing loss disability and tinnitus were resolved by a July 2013 rating decision granting the benefits sought. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT No psychiatric disorder has been present during the pendency of this claim. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided all required notice in letters mailed in August 2009 and December 2009, prior to the initial adjudication of the claim. The duty to assist the Veteran has also been satisfied. The originating agency has obtained all of the Veteran's available service treatment records, and obtained, or made all reasonable attempts to obtain, the Veteran's identified VA and private medical treatment records. The Veteran was also provided with a Disability Benefits Questionnaire (DBQ) examination for mental disorders in August 2013. The August 2013 DBQ examination was performed by a psychologist. In addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history and properly supported her conclusions. The Board finds the examination report is adequate for adjudication purposes. Neither the Veteran nor his representative has claimed that the report is not adequate for adjudication purposes. In July 2013, the Board remanded this matter to obtain a copy of an October 1998 VA audiological examination; obtain the Veteran's updated medical treatment records; and schedule him for an examination to ascertain the nature and etiology of the Veteran's bilateral hearing loss. The Appeals Management Center subsequently obtained the Veteran's updated VA treatment records, and arranged for aforementioned DBQ audiological evaluation. Unable to locate the record of an October 1998 VA audiological examination, the Appeals Management Center notified the Veteran of its unavailability in an April 2013 letter, and outlined the steps it had taken to obtain this record in a May 2013 unavailability memo. Accordingly, the Appeals Management Center has complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present 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 even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis As explained below, this claim must be denied because the evidence fails to show that the Veteran has had any psychiatric disorder during the pendency of the claim. There is no medical evidence showing that the Veteran has been found to have a psychiatric disorder. Pursuant to the Board's remand directive, the Veteran was afforded a DBQ mental examination in August 2013. The examiner determined that the Veteran did not have a psychiatric disorder. While the DBQ examiner acknowledged that the Veteran's hearing impairment has had a negative impact on his life, the DBQ examiner found that the Veteran does not meet DSM-IV criteria for any psychiatric diagnosis. While the Board has also considered the Veteran's statements, there is no indication in the record that he possesses the expertise required to render a psychiatric diagnosis. Therefore, his statements are not sufficient to establish the presence of a psychiatric disability. Finally, the Board has considered the doctrine of reasonable doubt but finds that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for a psychiatric disability, claimed as secondary to bilateral hearing loss, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs