Citation Nr: 1331774 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-46 632A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability, to include major depressive disorder. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1984 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2013, when it was remanded for additional development. This appeal was processed using VA's 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 A psychiatric disability was not manifested during service; a psychosis was not manifested in the first year following the Veteran's discharge from active duty; and any current psychiatric disability, to include major depressive disorder, is not shown to be related to the Veteran's active service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include major depressive disorder, is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A May 2008 letter explained the evidence necessary to substantiate her claim, the evidence VA was responsible for providing, and the evidence she was responsible for providing, and advised her of rating and effective date criteria. She has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records and pertinent post-service treatment records have been secured. The RO scheduled the Veteran for a VA examination as required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, VA Form 21-0820 (Report of General Information) reflects that notes from the VA medical center indicate she called and cancelled the examination, and did not want it rescheduled. An attempt was made to contact the Veteran to confirm she did not want to reschedule the examination; apparently, she had her phone disconnected. The Board's remand directed that an attempt be made to obtain additional information from the appellant. An April 2013 RO letter to the Veteran asked her to provide such information; she did not respond. In Wood v. Derwinski, 1 Vet. App 190 (1991), the United States Court of Appeals for Veterans Claims noted that "[t]he duty to assist is not always a one-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 putative evidence." The Veteran has not identified any pertinent evidence that remains outstanding. As her cooperation is needed to complete the development necessary, the Board finds that VAs duty to assist is met. See generally 38 C.F.R. § 3.159(c)(4). Factual background, legal criteria and analysis The Board has reviewed the entire record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that each item of evidence submitted by the appellant or obtained on her behalf be discussed in detail. Therefore, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of: (1) a current disability (for which service connection is sought); (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v, Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Initially, the Board notes the Veteran has failed to cooperate with the VA's attempts to obtain additional information pertinent to her claim. She did not respond to requests to submit additional information; she cancelled the examination that was scheduled, and indicated she would not report for one. Accordingly, the Board will, in accordance with 38 C.F.R. § 3.655, decide the appeal base on the evidence of record. The available service treatment records show no complaints or findings pertaining to a psychiatric disability. A report of medical history on service separation examination in November 1988 shows the Veteran denied frequent trouble sleeping, depression or excessive worry and nervous trouble. Psychiatric evaluation on the separation examination was normal. Reports of medical history dated in January 1989 and November 1990 also show the Veteran denied having ever had depression or nervous trouble. Psychiatric evaluation in November 1990 was normal. VA outpatient treatment records reveal the Veteran was seen in January 2006 with a past medical history of depression for five years. The assessment was depression; medication was prescribed. In December 2007 it was noted that the Veteran had a history of anxiety for at least 10 years. She denied previous psychiatric treatment. The impression was dysthymic disorder. The Veteran's mother accompanied her to a clinic visit in February 2008 and stated that the Veteran had not been herself since 1991. The Axis I diagnoses were depressive disorder, not otherwise specified and psychosis, not otherwise specified. Later that month, the Veteran denied having any psychiatric problems in service. She asserted she had been depressed since she was unemployed, which had been for quite some time. The Veteran's mother related that about three years after service, the Veteran became increasingly paranoid. She added that while the Veteran had some friends and would interact with family members prior to service, she became more seclusive and withdrawn about three years after service. The Veteran has claimed she reported depression during an examination for transfer from a duty station in Williamsburg, Virginia. Efforts to obtain additional information from the Veteran regarding this were unsuccessful as she did not respond to the RO's communications. Notably, her allegation of treatment during service is contradicted by her denial of any psychiatric problems in November 1988, just prior to her discharge from service. And psychiatric examinations on service separation examination in November 1988 and again on examination for Reserve service in November 1990 were normal. She also denied any psychiatric difficulties in service when she was seen in a VA outpatient treatment clinic in February 2008. The Veteran's mother has also provided conflicting statements regarding the onset of the Veteran's psychiatric problems. As noted above, in February 2008, she asserted the Veteran had not been herself since 1991, but in February 2011, she claimed the Veteran changed after her return from service. Regardless, the mother has not reported thst the Veteran had psychiatric problems during service. VA medical records reflect that the Veteran has never stated to medical providers that she had psychiatric problems during service. In light of the foregoing, and because it is self-serving, her account of onset of her psychiatric disability is not credible. Accordingly, service connection for a psychiatric disability on the basis that it became manifest in service and persisted, or on a chronic disease presumptive basis under 38 U.S.C.A. §§ 1112, 1137 (as a psychosis was not manifested in the first postservice year) is not warranted. Furthermore, there is no competent evidence that the Veteran's current psychiatric disability, however diagnosed, may somehow otherwise be related to her service. Her own assertions that her psychiatric disability is related to service are not competent evidence in the matter. The Veteran is competent to report her symptoms; similarly, her mother is competent to report on her observations of the Veteran. Laypersons are competent to provide opinions on some medical issues. However, the specific questions in this case, the diagnosis and etiology of a psychiatric disability, fall outside the realm of a layperson's common knowledge. In the absence of credible evidence of onset in service and continuity or symptoms since, whether a current psychiatric disability is related to service/events therein is a complex medical question . The Veteran does not cite to supporting medical evidence. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The record demonstrates that the Veteran's psychiatric disability was initially manifested many years after service, and there is no competent evidence linking it to service. Accordingly, the preponderance of the evidence is against her claim of service connection for a psychiatric disability, to include major depressive disorder. As the preponderance of the evidence is against the claim, the appeal in this matter must be denied. ORDER Service connection for a psychiatric disability, to include major depressive disorder, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs