Citation Nr: 1334293 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 12-18 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a cerebral aneurysm. 2. Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder. 3. Eligibility to nonservice-connected disability pension. ATTORNEY FOR THE BOARD C.E. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from January to February 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 decision of the RO in Houston, Texas, which denied the above claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran requested a videoconference hearing before a Member of the Board at the RO in his June 2012 substantive appeal. The Veteran failed to report for his scheduled hearing in August 2013. He has offered no cause for his failure to report. The request is deemed withdrawn. The Board may proceed. 38 C.F.R. § 20.704(d) (2013). FINDINGS OF FACT 1. A cerebral aneurysm was not incurred in service and residuals of such are not related to any incident of service. 2. An acquired psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder, was not incurred in service and is not related to any incident of service. 3. The Veteran did not serve for 90 days of consecutive active duty military service that began or ended in a period of war. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a cerebral aneurysm have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for service connection for an acquired psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder, have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. The requirements of basic eligibility for VA nonservice-connected pension benefits, based upon qualifying wartime military service by the Veteran, have not been met. 38 U.S.C.A. §§ 101(11), 107(b), 1521 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(e, f), 3.2, 3.3 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist A. Duty to Notify VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims of entitlement to service connection for a cerebral aneurysm, entitlement to service connection for an acquired psychiatric disability, and eligibility for a nonservice-connected pension. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and 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. Compliance with the first element requires notice of the five service connection elements: (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. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A November 2009 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claims in October 2010. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). B. Duty to Assist The Board concludes VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has identified relevant records in the possession of Ben Taub General Hospital. The Hospital did not respond to two requests for those records in November 2009 and September 2010. The RO notified the Veteran of the failure to obtain these records in a September 2010 letter, which identified the records VA was unable to obtain, explained the efforts VA made to obtain the records, described further action VA would take regarding the claim, and notified the Veteran that he was ultimately responsible for providing the evidence. The Veteran acknowledged receipt of that letter in September and October 2010 letters to the RO detailing his attempts to obtain the records from the hospital. No records from Ben Taub were ever received. The Board finds that all reasonable efforts have been made to assist the Veteran in obtaining these private treatment records. See 38 C.F.R. § 3.159(e) (2013). The Veteran submitted an authorization and release form to the RO in November 2009 requesting treatment records from the Houston VA Medical Center. A CAPRI check was performed in October 2009, but found no VA treatment records. A second CAPRI check was performed in May 2010, at which time a current problem list for the Veteran was found. The Veteran reports that he is currently receiving treatment for his psychiatric disability at the Houston VA Medical Center, and a May 2012 CAPRI report on Virtual VA contains an indication that the Veteran is receiving treatment for anxiety there. The Veteran submitted another request to the RO to obtain treatment records from the Houston VA Medical Center in June 2012, indicating a doctor from whom he receives primary care treatment there. No additional VA treatment records were associated with the file after the Veteran's June 2012 request. Therefore, there may be VA treatment records outstanding. However, the Board finds that the Veteran was not prejudiced by the absence of any such records, as the lack of a current disability was not a grounds on which the RO denied the Veteran's claim, and the Board finds that the existence of a current disability has been established by other evidence of record. Therefore, the Board finds that the duty to assist in obtaining records has been discharged. 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, as defined by law. A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board concludes an examination is not needed in this case because the only evidence indicating the Veteran "suffered an event, injury or disease in service" is his own lay statements. The Veteran is not a combat veteran. In a case involving a non-combat veteran, VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010). A non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions. Id., at 40. As will be discussed below, the Board has found that the Veteran's lay evidence is incredible. The remaining evidence does not indicate that an in-service event, injury or disease occurred. Such evidence is insufficient to trigger VA's duty to provide an examination. Cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The Board finds that VA has no duty to assist the Veteran with his claim of eligibility to nonservice-connection pension. In Sabonis v. Brown, 6 Vet. App. 426, 430 (1994), the U.S. Court of Appeals for Veterans Claims held that where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law. In this case, the Veteran lacks legal entitlement to nonservice- connected disability pension due to nonqualifying service. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The Veteran contends that he had sporadic headaches during service, which led to his discharge. He reports that after his discharge, he was admitted to hospital and diagnosed with a cerebral aneurysm, and underwent immediate surgery for the aneurysm. The Veteran further asserts that he currently has anxiety and depression, and is taking prescription medication for his psychiatric disability. He also claimed exposure to both herbicides and mustard gas. He has not made statements regarding a causal relationship between his current disabilities and his active service. In order to succeed on a claim for service connection, the Veteran must have a current disability. The Veteran must also have had in-service incurrence or aggravation of a disease or injury, and there must be a causal relationship between the current disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Cerebral aneurysm and anxiety and/or depression are not "chronic diseases" listed under 38 C.F.R. § 3.309(a) ; therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The Board notes that brain hemorrhage is a "chronic disease," but this is distinct from a cerebral aneurysm and is not the condition with which the Veteran has been diagnosed. Dorland's Medical Dictionary defines "brain hemorrhage" as follows: "hemorrhage into the cerebrum, an often fatal type of stroke syndrome." Dorland's defines "cerebral aneurysm (also known as berry aneurysm)" as follows: "a saccular aneurysm of a cerebral artery, usually at the junction of vessels in the circle of Willis; its narrow neck of origin and larger dome resemble those of a berry." It is clear from the medical definitions that a cerebral aneurysm is distinct from a brain hemorrhage, and therefore the Board finds that the Veteran does not have a chronic disease and 38 C.F.R. § 3.303(b) is not applicable in this case. Although the Veteran has current disabilities, there is no competent evidence of an in-service injury or disease, and no competent evidence of a causal relationship between the Veteran's current disabilities and his active service. Therefore, the preponderance of the evidence weighs against a finding that the Veteran's current disabilities are related to service. For this reason, the Veteran's claims of entitlement to service connection for residuals of a cerebral aneurysm and an acquired psychiatric disability must be denied. First, after affording the Veteran the benefit of the doubt, the Board finds that the Veteran has a current disability resulting from brain surgery for a cerebral aneurysm. The Veteran reports that he was diagnosed with a cerebral aneurysm and had immediate brain surgery for the aneurysm in 1981. As a layperson, the Veteran is competent to report a contemporaneous medical diagnosis, and therefore is competent to report that he was diagnosed with a cerebral aneurysm. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no medical evidence of record related to the Veteran's diagnosis of or treatment for a cerebral aneurysm. However, lay evidence may be competent and sufficient to establish a diagnosis when the layperson is reporting a contemporaneous medical diagnosis. See id. The Board finds that the Veteran's lay statements as to his diagnosis of a cerebral aneurysm to be competent, as a lay report of a contemporaneous medical diagnosis. The Board further finds the Veteran's lay statements as to his diagnosis of and treatment for a cerebral aneurysm to be credible. There is no other evidence of record related to the Veteran's cerebral aneurysm, and as the Veteran's statements are found both competent and credible, the Board finds the Veteran's lay statements of high probative value. The Board also finds that the Veteran has a current psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder. The Veteran has asserted that he currently experiences anxiety and depression. The evidence of record indicates that the Veteran is receiving treatment for his psychiatric disability and has been prescribed an antidepressant in connection with his treatment. The Veteran's reports of anxiety and depression are found to be credible, and corroborated by the clinical record. The Veteran's reports of anxiety and depression are further found to have high probative value, as they are found both competent and credible, and corroborated by the clinical evidence of record. Although the Veteran has current disabilities, the weight of the evidence is against a finding that he had an in-service injury or disease, and therefore the Veteran's claim fails to meet the second element required for service connection. The Veteran has claimed sporadic headaches during service, exposure to mustard gas in service, and exposure to herbicides in service. However, there is no competent and credible evidence of record to support any of these three theories. In a November 2010 statement, the Veteran asserted the following: "Not knowing the reason for my sporadic headaches, I accepted a chance at an Honorable Discharge to be admitted urgentally [sic] to I.C.U. at Ben Taub after diagnosis for acute aneurysm." This statement indicates that the Veteran was experiencing sporadic headaches during his time in service, and that he was admitted to hospital for treatment immediately following his discharge. However, the Veteran has repeatedly stated that his diagnosis of and surgery for a cerebral aneurysm took place in 1981, and he was discharged from active service in 1977. Therefore, the temporal relationship between his discharge and his diagnosis and surgery that he asserts in his November 2010 statement is inconsistent with his other statements regarding the date of his diagnosis and surgery. Furthermore, no complaints of headaches, let alone findings of a brain aneurism, are documented in the Veteran's service treatment records. The Veteran's verified service information from the Department of the Army shows that the Veteran was not discharged due to a disability. If the Veteran had been discharged from service due to a disability, a medical board evaluation would have been required, and there is no record of such an evaluation in the Veteran's service treatment records. As the Court has noted, the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded. See Buczinski v. Shinseki, 24 Vet. App. 211 (2011). Due to the inconsistency of the Veteran's November 2010 statement regarding the occurrence of headaches in service that led to his discharge and immediate treatment with his prior statements regarding the date of his diagnosis and treatment and with his service treatment records, the Board finds the Veteran's November 2010 statement incredible. The Veteran indicated in his October 2009 claim and his June 2012 statement that he was exposed to mustard gas during his active service. He also indicated in his June 2012 statement that he was exposed to herbicides during service. The Veteran served in the Army for five weeks in 1977 in Houston, Texas. The Veteran had no combat service, and did not serve during a period of war. He did not serve in the Republic of Vietnam, Korea, Thailand, or any location other that Houston, Texas. There is no indication in the Veteran's service treatment records or any other evidence of record that the Veteran was exposed to mustard gas or herbicides, and the Veteran has not made any statements as to when, where, or how he was exposed to mustard gas or herbicides. The Board finds that the evidence of record has not established a plausible claim for mustard gas exposure or herbicide exposure. There is no probative evidence of record of a causal relationship or "nexus" between the Veteran's current disabilities and his active service. In a November 2009 statement, the Veteran in fact indicated that his lack of income and substance abuse led to his anxiety and depression. As a layperson, the Veteran is competent to report symptoms of his current disability, as well as to report persistent or recurrent symptoms since his active service, but he has not done so. There is no medical evidence of record showing any signs, symptoms, diagnoses of or treatment for a cerebral aneurysm or a psychiatric disability during his active service. As there is no probative evidence of record of a nexus between the Veteran's current disability and his active service, the third element of the Veteran's claim of entitlement to service connection is not met. Although the Veteran has current disabilities, the preponderance of the evidence weighs against a finding that the Veteran incurred a cerebral aneurysm in service or that his current disability is related to his active service. T he preponderance of the evidence also weighs against a finding that the Veteran incurred a psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder, in service or that his current psychiatric disability is related to his active service. As such, service connection for a cerebral aneurysm and an acquired psychiatric disability is not warranted. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). III. Nonservice-Connected Pension The Veteran contends that he is eligible for a nonservice-connected pension based on his active service in the Army from January to February 1977 and on his current financial circumstances, evidence of which he has submitted. Basic entitlement to pension exists if a veteran served in the active military, naval, or air service for 90 days or more during a period of war; or served in the active military, naval, or air service during a period of war and was discharged or released from such service for a service-connected disability; or served in the active military, naval, or air service for a period of 90 consecutive days or more and such period began or ended during a period of war; or served in the active military, naval, or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3(a)(3) (2013). The Veteran's verified military service information indicates that he served on active duty from January 3, 1977 to February 10, 1977. There is no other period of verified service shown. The period of war for the Vietnam Era is the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period, and the period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2(f) (2013). The period of war for the Persian Gulf War is the period beginning on August 2, 1990, through a date to be prescribed by Presidential Proclamation or law. 38 C.F.R. § 3.2(i) (2013). In short, the Veteran's verified active service did not take place during a period of war. Thus, the Board finds that the Veteran does not meet the basic eligibility requirements for nonservice-connected pension benefits; he did not have active service during a period of war. 38 U.S.C.A. § 1521(j); 38 C.F.R. § 3.3. Although the Veteran has submitted evidence of his current financial circumstances, he is not eligible for a nonservice-connected pension because he did not have active service during a period of war. In reaching this conclusion, the Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claims. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F. 3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for residuals of a cerebral aneurysm is denied. Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and Generalized Anxiety Disorder, is denied. Eligibility to nonservice-connected pension is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs