Citation Nr: 1333883 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 08-29 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M.Clark, Counsel INTRODUCTION The Veteran performed honorable active military service from November 6 to December 4, 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction of the claims file has subsequently been transferred to the RO in Cleveland, Ohio. The Veteran testified before he undersigned Veterans Law Judge in July 2009. A copy of the transcript is of record. The Board remanded the case for development in December 2009. In May 2011, the Board denied the Veteran's claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In an Order, dated in August 2011, the Court granted a Joint Motion to Remand of the parties, the VA Secretary and the Veteran, and remanded the case to the Board for readjudication consistent with the motion. The Board once again remanded the case in April 2012 to afford the Veteran a VA examination and opinion. The Board finds substantial compliance with the April 2012 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). A May 2013 supplemental statement of the case was issued, and the case is once again before the Board. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT The preponderance of the evidence is against a finding that any diagnosed acquired psychiatric disorder is related to service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 1132, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Assist and Notify As provided for by 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, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ 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); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. In March 2007 the Veteran was notified via letter of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He was additionally notified of how VA determines disability ratings and effective dates if service connection is awarded. Thus, no further development is required with respect to the duty to notify. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatments records and VA examination report were obtained. Private treatment records identified by the Veteran have been obtained. The Board has additionally reviewed the Veteran's Social Security Administration (SSA) records, his Virtual VA file, and the Veterans Benefits Management System (VBMS) file. The Veteran has not identified any existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Discussion of the Veteran's July 2009 Veterans Law Judge (VLJ) hearing is also necessary. The individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here. Entitlement to service connection for a psychiatric disorder was identified as an issue at the hearing. Sources of evidence relevant in this regard were identified during this hearing. Indeed, as noted above, the Board remanded the Veteran's claim in December 2009 to locate the Veteran's SSA records. The Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Next, a specific VA examination and opinion was obtained in September 2012. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2012 VA examination and opinion obtained in this case is more than adequate, as it is predicated on a full reading of the Veteran's claims file. The VA examiner considered all of the pertinent evidence of record, to include his service treatment records, personal statements and history, and provided detailed rationale for the opinion stated. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board concludes that all the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection The Veteran claims service connection for an acquired psychiatric disorder. He attributes this disorder to a gas-mask training exercise in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131(West 2002). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hansen v. Principi, 16 Vet. App. 110 (2002); Caluza v. Brown, 7 Vet. App. 498 (1995). Continuity of symptomatology is required only where the condition noted during service or in the applicable presumptive period is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The provisions of § 3.303(b) only apply to the list of chronic disabilities identified under § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Service treatment records reflect that an adjustment disorder was discovered almost immediately upon entering active service and resulted in the Veteran's administrative discharge only 29 days later. A November 21, 1980 entry in his military health record reflects that the Veteran doubted his ability to adjust to military life. His mood was mildly depressed with some agitation. He had vague suicidal ideation. The report states "Seems to exhibit characteristics of an avoidant personality disorder." The report recommends an administrative discharge. The November 21, 1980, service treatment record does not offer a diagnosis of a personality disorder or mental disorder; it simply mentions a mildly depressed mood, agitation, suicidal ideation, and certain characteristics of a personality disorder. Post service treatment records show diagnoses of a major depressive disorder, depression, an anxiety disorder, and an adjustment disorder. The Veteran asserts he has experienced psychiatric issues since service. The Board is cognizant that the Veteran's service treatment records show complaints of psychiatric problems and he has alleged continuous symptoms since service. However, the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). An acquired psychiatric disorder is not a chronic disease under 38 C.F.R § 3.309(a). Thus, consideration under 38 C.F.R § 3.303(b) is not warranted. Furthermore, the evidence does not establish that the Veteran's acquired psychiatric disorder is related to service. The Veteran has been afforded a September 2012 VA examination and opinion. The September 2012 VA examiner diagnosed the Veteran with depression. The VA examiner considered the Veteran's reports of a gas mask training exercise where he was unable to properly put on his mask so he ran out of the shed where the training exercise was occurring and was made to go back in. She indicated that she would be issuing an opinion based on her clinical experience and expertise, a review of the Veteran's file, the results of a structured interview and the Veteran's psychiatric test results. She noted that the Veteran's Global Assessment of Function (GAF) score was indeterminate due to exaggeration of symptoms on testing. She noted that while this did not dismiss the Veteran's possible depression symptoms, the severity simply could not be determined. Nevertheless, regardless of the severity level of the Veteran's depressive symptoms, she noted that based on the available information there did not appear to be enough evidence to suggest that the Veteran's depressive symptoms began while he was in the military. She noted that the Veteran had not sought treatment for several years after his time in the service and he did not report hearing voices until the mid 1990's nearly 15 years after he left service. She also noted that there was no mental health diagnosis given to the Veteran while in the service, despite the recommendation for administrative separation on November 21, 1980. She concluded indicating that it was less likely than not that the Veteran's depressive symptoms started while he was in the military. In support of his claim, the Veteran has submitted two private examinations and opinions which relate his acquired psychiatric disorder to service. The Veteran initially underwent a private clinical evaluation with Dr. J. C. in December 2011 and January 2012. After reviewing the Veteran's claims file, interviewing the Veteran and various family members the private examiner diagnosed the Veteran with major depressive disorder, recurrent, severe, with psychotic features. He additionally diagnosed an anxiety disorder and rule out posttraumatic stress disorder. He opined that it was his professional opinion, with a reasonable degree of psychological certitude, that it is at least as likely as not that the Veteran's psychiatric conditions, namely, major depressive disorder, as well as an anxiety disorder, began during military service, with the origin of both being the gas mask training incident. Rationale was not provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). As such, the probative value of this December 2011 and January 2012 medical opinion is limited. The Veteran submitted an additional addendum opinion from the same private examiner in January 2012. He noted shortcomings of the VA examination. He additionally noted that he stood by his earlier report of December 2011 and January 2012 in which he diagnosed the Veteran with a major depressive disorder, an anxiety disorder and rule out posttraumatic stress disorder. He indicated that both the Veteran's major depressive disorder and anxiety disorder began during his military service with the origin of both being the gas-mask training incident. Once again rationale for this opinion was not provided. In this case, the Board finds that the statements provided by the private examiner are outweighed by the conclusions of the September 2012 VA examiner. Significantly, the private examiner did not provide rationale for his conclusions, while the September 2012 VA examiner did provide rationale for her determinations. The Board determines that the private examiner's conclusions are outweighed by the observations of the VA examiner. The only other evidence which purports to link the Veteran's claimed acquired psychiatric disorder to his military service consists of the statements of the Veteran and his friends and family. Although laypersons, such as the Veteran and his friends and family, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of psychiatric medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran and his friends and family can describe what he experiences (in this case, depressed mood, chronic sleep impairment, disturbances of motivation and mood) or their observations, they are not able to provide competent evidence as to the etiology of his acquired psychiatric disorder or to attribute it to a particular diagnosis or any diagnosis at all. Providing such an opinion requires medical expertise in the identification of psychiatric disorders and the causes of such. The Veteran and his friends and family have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2013). The Board finds that the September 2012 VA opinion is the most probative evidence of record. This is because the VA examiner reviewed his records, considered his reported history, and examined the Veteran. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's in-service psychiatric complaints and his current acquired psychiatric disorder. Although the Board notes the Veteran's current complaints and in-service treatment, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs