Citation Nr: 1331716 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-37 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran served on active duty from March 1983 to August 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT An acquired psychiatric disorder manifested by depression and anxiety is not related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder (claimed as depression and anxiety) are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements VA's duties to notify and assist claimants in substantiating a claim for VA benefits are described in 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, notice was initially provided to the Veteran in August 2008, prior to the initial AOJ decision on his claim. Additional notice was provided to the Veteran in March 2011. The Board finds that the notices provided fully comply with VA's duty to notify. Likewise, the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. He was told it was his responsibility to support the claim with appropriate evidence and has been given the regulations applicable to VA's duty to notify and assist. Indeed, the Veteran identified evidence in connection with his claim, which indicates he knew of the need to provide information and evidence to support his claim. Thus the Board finds that the purposes behind VA's notice requirement have been satisfied, and VA has satisfied its "duty to notify" the Veteran, and any error in this regard is harmless. With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). All efforts have been made to obtain relevant, identified and available evidence, and VA has notified the Veteran of any evidence that could not be obtained. The Board notes that it previously remanded the Veteran's claim to obtain a release from him with regard to private mental health treatment records he identified at his hearing in January 2011 that he said were already in the claims file but were not. The Board notes that the Veteran had previously provided a VA release form for these treatment records; however, efforts by the RO to obtain them were unsuccessful. As requested by the Board in its March 2011 remand, the Appeals Management Center (AMC) sent the Veteran a letter requesting he provide VA release forms for all private physicians from whom he received treatment for his claimed depression and anxiety. The Veteran failed to respond to that letter. The Veteran has not identified any other treatment records related to this claim. VA, therefore, has made every reasonable effort to obtain all records relevant to the Veteran's claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. VA did not obtain a medical examination in relation to this claim for service connection because the record does not show competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As the current record does not reflect even a prima facie claim for service connection for any of the claimed psychiatric conditions, VA has no obligation to obtain any medical opinion commenting upon their etiologies. See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003). See also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium). The Veteran appeared and testified at a Board video-conference hearing before the undersigned Veterans Law Judge in January 2011. A copy of the transcript of this hearing has been associated with the claims file. A review of the transcript demonstrates that the Veterans Law Judge complied with the requirements set forth in Bryant v. Shinseki, 23 Vet. App. 488, 491-93 (2010). The Board notes that the Veteran's claim was previously before it in March 2011. At that time, the Board denied the Veteran's claims for service connection for a lumbar spine strain, a left ankle strain, a right ankle strain and left knee instability. In addition, it remanded the present claim for additional notice and development. The Board acknowledges that the notice provided to the Veteran in March 2011 did not specifically advise him that the mental health treatment records he identified at the hearing as being in the claims file were in fact not. The Board finds, however, that its remand put the Veteran on notice as to why this notice letter was being sent to him. Consequently, the Board finds that any error in the notice letter is not shown to prejudice the Veteran or to have any effect on the appeal and is deemed harmless and does not preclude appellate consideration of any of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Consequently, at this time, the Board finds that the prior remand has been substantially complied with; therefore, the Board may proceed forward with adjudicating the Veteran's claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran has claimed service connection for depression and anxiety. At his hearing in January 2011, the Veteran claimed that his depression was caused by the injuries he claimed he sustained in service when he fell out of a helicopter during a training exercise at Fort Campbell. The Veteran claimed that he injured both ankles, his left knee and his back in this incident but that they only treated him for an ankle sprain. Service connection means that the facts establish 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 during service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); See Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). Subsection (a) also refers to "each disabling condition...for which [a veteran] seeks a service connection" and states that "[d]eterminations as to service connection will be based on review of the entire evidence of record." Walker at 1334. A second way to establish direct service connection is set forth in § 3.303(b). In Walker, the Court of Appeals for the Federal Circuit (Federal Circuit) found that, unlike subsection (a), which is not limited to any specific condition, subsection (b) is restricted to chronic diseases. "If a veteran can prove a chronic disease 'shown in service,' and there are no intercurrent causes, the manifestations of the chronic disease present at the time the veteran seeks benefits establish service connection for the chronic disease. By treating all subsequent manifestations as service-connected, the veteran is relieved of the requirement to show a causal relationship between the condition in service and the condition for which disability compensation is sought. In short, there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. at 1335-36. In addition, the Federal Circuit found that subsection (b) provides a second route by which service connection can be established for a chronic disease, which is if "evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. at 1336. Furthermore, the Federal Circuit held that that the term "chronic disease" as set forth in subsection (b) is properly interpreted as being constrained by § 3.309(a) in that the regulation is only available to establish service connection for the specific chronic diseases listed in § 3.309(a) regardless of the point in time when a veteran's chronic disease is either shown or noted. Id. at 1336-39. Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). Initially the Board notes that the claimed psychiatric disorders of depression and anxiety are not enumerated chronic diseases listed in 38 C.F.R. § 3.309(a). Consequently, consideration of direct service connection on the basis of chronicity in service or continuity of symptomatology after service pursuant to 38 C.F.R. § 3.303(b) is not warranted. Furthermore, consideration of presumptive service connection based upon a chronic disease pursuant to 38 C.F.R. § 3.307(a) is also not warranted. Thus, the Board must consider the totality of the evidence pursuant to the provisions of 38 C.F.R. § 3.303(a) in determining whether service connection is warranted for the claimed psychiatric conditions. Initially, the Board notes that the service treatment records are silent for any complaints of or treatment for any psychiatric condition to include either depression or anxiety. They do show, however, that the Veteran incurred a left ankle inversion sprain in February 1984. At the hearing, the Veteran claimed that this injury was incurred in a fall from a helicopter; however, the initial treatment note dated February 13, 1984, indicates that he sprained his left ankle one day ago at the "gym." There are no other records that indicate the Veteran was injured from a fall from a helicopter. Consequently, the service treatment records neither support the Veteran's contention of the onset of a psychiatric disorder while in service nor do they support his contention that he injured himself during a training exercise when he fell out of a helicopter. The Board finds, therefore, that the service treatment records do not demonstrate that the Veteran incurred any injury, disease or event in service related to his claimed depression and anxiety. Furthermore, the Board notes that the Veteran has not provided any medical evidence to support that he currently has a psychiatric disorder manifested by depression and/or anxiety or that any current psychiatric disorder he may have is related to an event in service in which he claims he fell out of a helicopter during a training exercise. At the hearing in January 2011, the Veteran only testified he had depression but did not provide any testimony as to his symptomatology such that a medical diagnosis could be rendered based thereon. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) has held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, lay evidence is considered competent and sufficient to establish a diagnosis of a condition when 1) a lay person is competent to identify the medical condition; 2) the lay person is reporting a contemporaneous medical diagnosis; or 3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, although the Veteran is competent to state he has symptoms of depression and anxiety, he is not competent as a lay person to provide a medical diagnosis that his depression or anxiety meets the criteria of a psychiatric disorder as set forth in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). Nor is he competent to provide a medical nexus opinion relating any current psychiatric disorder he may have to any injury, disease or event that occurred in service. Furthermore, in so much as the Veteran relates his depression and anxiety to the February 1984 incident in which he injured his left ankle, the Board finds his statements are not credible because the contemporaneous medical evidence contradicts his account that the treatment was for injuries received from a fall from a helicopter as the Veteran testified. Rather, as stated above, the pertinent record demonstrates that the injury was incurred at the "gym." The Board finds that the contemporaneous evidence is more probative and persuasive as to how the Veteran injured his left ankle in February 1984 than his current statements made in support of his claim for benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. This would include weighing the contemporary medical evidence against lay statements.) See also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Furthermore, although the Veteran testified at the hearing that he received mental health treatment for depression approximately four years before, he also testified that he was going through a divorce at that time and lost his wife, daughter and house. Consequently, it would appear from the Veteran's testimony that the divorce was the reason the Veteran sought mental health treatment and not any psychiatric disorder resulting from his military service, which was more than 20 years prior to said treatment. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed.Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). Although VA's system is not adversarial and VA has a duty to assist veterans in establishing their claims, "[i]t is the veteran's 'general evidentiary burden' to establish all elements of his claim, including the nexus requirement." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed.Cir.2009). In addition, although VA is to afford the veteran the benefit of the doubt when the evidence is in relative equipoise, the benefit of the doubt doctrine is not concerned with the quantity of evidence arrayed on both sides of a material matter, but the relative quality and persuasive effect of that contrary evidence. See 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In the present case, the Veteran has failed to provide any evidence to support his claims beyond his own lay statements. Moreover, he has failed to cooperate in VA's attempts to obtain evidence he has identified. The duty to assist is a two-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board finds that the preponderance of the evidence is against finding that the Veteran has a current psychiatric disorder manifested by depression and anxiety that is directly related to his military service. Finally, in so much as the Veteran may have alleged in his testimony that his claimed depression and anxiety resulted from his medical conditions, especially the orthopedic disabilities which the Board denied service connection for in the March 2011 decision, the record reflects that the Veteran does not currently have any service-connected disabilities. Thus, there can be no legal basis for a grant of service connection as secondary to another disability, and further discussion of secondary service connection is unnecessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). After considering all the evidence of record, the Board finds that the preponderance of the evidence is against finding that service connection for a psychiatric disorder (claimed as depression and anxiety) is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a psychiatric disorder, claimed as depression and anxiety, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs