Citation Nr: 1333870 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 09-14 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to April 1971. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of this matter has since been transferred to the RO in Chicago, Illinois. The Board notes that there are various psychiatric diagnoses of record. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims, specifically to include those for posttraumatic stress disorder (PTSD). As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, his claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition. The Board has accordingly characterized the issue as noted on the first page of this decision and will analyze the Veteran's current claim under this framework. In November 2011, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. When this case was most recently before the Board in June 2013, it was remanded for additional evidentiary development; it has since been returned to the Board for appellate consideration. The Board notes that 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 An acquired psychiatric disorder was not manifest in service and there is no competent medical evidence that an acquired psychiatric disorder is related to the Veteran's service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter in June 2013. The Board specifically instructed the RO/AMC to issue a supplemental statement of the case (SSOC) addressing the issue on appeal. Pursuant to the Board's remand, his claim was readjudicated in a July 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in January 2013, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the Veteran was notified of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the claim was subsequently readjudicated in the July 2013 SSOC. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to the issue decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA examination in April 2012. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate interview examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c) (4) (2013). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Additionally, as noted above, he presented testimony before the undersigned Veterans Law Judge in November 2011. Therefore, the duties to notify and assist have been met. Analysis At his November 2011 Board hearing, the Veteran reported that while serving in the Republic of Vietnam he was exposed to rocket and mortar attacks that made him fearful for his life. The Veteran reported that he has experienced psychiatric symptoms since his time in the Republic of Vietnam. A review of the Veteran's service personnel records shows that the Veteran did in fact have service in the Republic of Vietnam for approximately one year. Further, a review of the Veteran's DD Form 214 shows that among the decorations awarded for the Veteran's active service are a National Defense Service Medal, a Vietnam Campaign Medal, and a Vietnam Service Medal. In order to establish service connection for the claimed disorder, there must be (1) 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) 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). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). The record reflects psychiatric diagnoses other than PTSD, to include depressive disorder, mood disorder, and cognitive disorder not otherwise specified (NOS). However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Pursuant to the Board's February 2012 remand, the Veteran was provided an examination in April 2012. Upon review of the claims folder and evaluation of the Veteran, the VA examiner diagnosed cognitive disorder NOS and stated that the Veteran had a serious head injury during a motor vehicle accident in 1979/1980; he described memory problems and poor concentration since that time. The VA examiner opined that the current cognitive impairments were most likely related to this incident; this was not related to military service. The VA examiner also diagnosed depressive disorder NOS and stated that based on his self-report and his treatment notes, his depression started in the last 2 - 3 years. The VA examiner opined that the depression was most likely related to situational stressors; his depression was less likely than not related to military service or his history of stressors. The Board finds that the April 2012 opinion is probative as it was definitive, based upon a complete review of the Veteran's entire claims file and electronic record, evaluation of the Veteran, and is supported by rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent evidence contrary to the opinions cited above. That is, there are no opinions linking his acquired psychiatric disorders to service. Furthermore, the Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges that the Veteran is competent to testify as to symptoms he has experienced during and since service. However, to the degree that such symptomatology is related to a current psychiatric disorder, the Board places far greater weight on the opinion of the April 2012 VA examiner. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a nexus opinion. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to diagnosis acquired psychiatric disorders as the diagnosis or etiological opinions for such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence and weight to the VA examiner's finding as it was rendered after an extensive evaluation of the Veteran and review of the Veteran's medical history by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs