Citation Nr: 1331076 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 06-32 563 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active military service from March 1976 to March 1980 and February 1991 to July 1991. The Veteran also had Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In pertinent part of the February 2006 decision, the RO denied service connection for low back strain, hypertension, and schizophrenia. In November 2009 the Board denied service connection for low back strain and hypertension and remanded the issue of entitlement to service connection for schizophrenia. In July 2011 the Board once again remanded the issue of entitlement to service connection for schizophrenia, specifically for the Veteran to be afforded a VA examination; however, the Veteran failed to appear. Finally, in October 2012, the Board again remanded the claim in order to obtain outstanding treatment records and determine the Veteran's dates of service. As that development has been completed, this case 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 competent medical evidence of record does not support a finding that a psychiatric disorder, to include schizophrenia, was first manifested in service or is otherwise related to active duty service. CONCLUSION OF LAW The criteria for establishing service connection for a psychiatric disorder, to include schizophrenia, 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 August 2004, October 2005, and June 2006. 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 duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The record shows that the RO obtained the Veteran's SSA records and associated them with the claims file. The Veteran was provided with a VA examination in December 2004. The examination was adequate because it contained a history obtained from the Veteran and thorough examination relevant to the applicable rating criteria. The Veteran was provided with subsequent opportunities for a VA examination in order to ascertain the etiology of her psychiatric disorder. The Veteran was scheduled for a VA examination in August 2010; however, she failed to report to the VA examination and did not give a reason for her failure to report. The Veteran was again schedule for a VA examination in July 2011 and notified of the repercussion of a failure to report, however the Veteran again failed to report and provided no explanation. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). 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, for which the Veteran failed to report. In July 2011, the Board remanded the claim for an examination, for which the Veteran again failed to report. In October 2012, the Board remanded the claim in order to obtain any outstanding treatment records previously identified by the Veteran as well as a verification of the Veteran's dates of service, to include Active Duty for Training (ACDUTRA) and Inactive Duty for Training (INACDUTRA). The Appeals Management Center (AMC) was able to obtain the Veteran's verification of service dates from Army Military Pay Operations from July 1990 to December 2002, with the exception of any records from January 1995 to December 1995. Army Military Pay Operations indicated in a January 2013 letter that records prior to July 1990 were unavailable. The AMC also obtained records from Walter Reed National Military Medical Center dated February 2000 and May 2000. No other records were found available for dates prior to or after the February 2000 to May 2000 timeframe. The Veteran had indicated that she had been seen at Walter Reed in March 2004 as well, but other records, such as a June 2005 VA outpatient treatment note, indicate that she may have actually been hospitalized at St. Elizabeth's Hospital instead. In regard to any treatment records from St. Elizabeth's Hospital, the AMC sent the Veteran a November 2012 letter requesting that she complete an authorization to allow the release of her records to a third-party, to which she never responded. As such, the AMC was unable to obtain any records from St. Elizabeth's Hospital. 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)). The Board notes that service connection may be granted for injury or disease incurred while on ACDUTRA, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 01(22). However, service connection may be granted for injuries incurred while on INACDUTRA, but not for disease; INACDUTRA is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). Service connection may also be granted for chronic disabilities, such as a psychosis, 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). 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 asserts that she was diagnosed with a psychiatric disorder on two occasions at Walter Reed, when she was on INACDUTRA. As such, the Veteran contends that her psychiatric disorder is related to her military service. The STRs contain no complaint, diagnosis or treatment for a mental disorder during the Veteran's two periods of active duty service from March 1976 to March 1980 and February 1991 to July 1991. A review of the Veteran's STRs reveals that, in December 2000, the Veteran was found to be unfit for Reserve Service by a Physical Evaluation Board, who also determined that it was non-duty related, because of recent acute psychiatric hospital admissions in February 2000, May 2000, and October to December 2000 for paranoid type schizophrenia. During a weekend drill for reserve service in February 2000 the Veteran was taken to Walter Reed after bizarre behavior and persecutory delusions and she was diagnosed with psychosis. The Veteran received treatment on two occasions at Walter Reed due to her behavior at drills in February 2000 and May 2000. In February 2000, the attending physician indicated that the Veteran's psychiatric condition had likely been persisting for longer than one month, but that he could not rule out etiology to any other medical condition. In May 2000, the attending physician indicated that the Veteran's symptoms had predated her entry into Reserve service, as based upon a review of her outpatient treatment history. The Veteran's private treatment records and VA treatment records revealed that she has a current diagnosis of schizophrenia and has been repeatedly hospitalized for her schizophrenia. These records were absent for a discussion of etiology in which the Veteran's condition was related to any period of active military service, to include ACDUTRA or INACDUTRA. The Veteran had a VA examination in December 2004, and she was diagnosed with a history of depression and paranoid schizophrenia, however, the VA examiner did not opine as to whether her diagnoses were related to any of the Veteran's periods of active service. 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 a psychiatric disorder, so the appeal must be denied. The evidence shows that there is a current disability, based upon the Veteran's diagnosis of schizophrenia. 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 she did not have complaints or a diagnosis of any psychiatric disorder upon discharge from military service in July 1991. The Veteran's pay records show that she did not have any additional active duty service after 1991 and only had one subsequent period of ACDUTRA from July 28, 1997 to August 10, 1997. There were no treatment records available showing any complaints or diagnosis of any psychiatric disorder during the period of ACDUTRA. Although the medical records from Walter Reed in February 2000 and May 2000 show that the Veteran was on INACDUTRA at the time of admission, because the Veteran's condition is considered a disease and not an injury, its incurrence cannot be service connected upon that basis alone. 38 U.S.C.A. § 101(23). The Board, thus, finds that the medical record does not reveal evidence of an event, injury, or illness that occurred within an applicable period of active service. Additionally, following her discharge from the service, the first evidence showing the diagnosis of a psychiatric disorder occurred in February 2000, over 8 years after the Veteran's last 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 even a remote opinion as to etiology, as seen in the May 2000 Walter Reed record, found that the Veteran's psychiatric disorder predated her Reserve service. However, the Board points out that there was no discussion of a possible relationship of a psychiatric disorder to her prior active duty service. 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 her 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 her personal knowledge. The Board, however, finds that the Veteran is not credible about her onset of symptoms, as she has claimed receiving treatment at Walter Reed in January 1991, prior to her last period of active duty, but treatment records do not reflect such an assertion. Rather, the earliest documentation of the Veteran's psychiatric disorder in the medical record appears in the February 2000 Walter Reed diagnosis. As such, the Board finds that the Veteran's statements regarding having symptoms since 1991 do not support a showing of continuity because the symptoms did not continue from either the time that the Veteran was discharged from the service or from any subsequent period of ACDUTRA. 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 her 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 a psychiatric disorder, to include schizophrenia, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs