Citation Nr: 1335272 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 05-38 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney at Law ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1983 and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was most recently before the Board in July 2012 and was remanded for further development. In a November 2005 letter, the Veteran requested a hearing before the Board. The Veteran was scheduled for a Travel Board hearing in August 2007. The Veteran failed to appear, without explanation. Her request for a hearing before the Board is considered withdrawn. FINDING OF FACT The preponderance of the evidence fails to establish that an acquired psychiatric disorder was present in either period of the Veteran's service, that a psychosis was demonstrated to a compensable degree within a year of discharge from either period of service, or that there is a nexus or link between an acquired psychiatric disorder and the Veteran's periods of active service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (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). 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. Neither the Veteran nor her 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). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters, including those dated in December 2003, February 2004, June 2008, and April 2013 of the criteria for establishing service connection, the evidence required in this regard, and hers and VA's respective duties for obtaining evidence. The June 2008 letter provided the Veteran with notice of how VA determines disability ratings and effective dates if service connection is awarded. Recognition is given to the fact that the notice requirements were not provided to the Veteran, in full, prior to the initial AOJ adjudication of the claim, and such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file. Identified private and VA medical records are also of record. Updated records from those facilities have been obtained. The Veteran's Social Security Administration (SSA) records are also associated with the claims file. No outstanding records have been identified that have not otherwise been included with the claims file. In May 2013 the Veteran underwent a VA examination that addresses the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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 VA opinion obtained in this case is more than adequate as the May 2013 VA examiner provided an opinion that considered the pertinent evidence of record. A rationale for the opinion was provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 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). The Board finds that there has been substantial compliance with its July 2012 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in May 2013 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal. In accordance with the July 2013 Board remand instructions, in September 2012 the RO contacted the National Personnel Records Center (NPRC) or Records Management Center, as appropriate, to search again for service treatment records for the Veteran from the facility at Rota, Spain, and the Jacksonville, Florida, Naval Air Station hospital and "separately-filed" clinic records. In a November 2012 response, the NPRC indicated that they were unable to locate any such records, and in an April 2013 letter the RO informed the Veteran of this fact and asked that she submit any such records that might be in her possession. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection The Veteran asserts that her psychiatric problems began in 1980 during service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain specified chronic diseases, such as a psychosis, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Analysis An April 1980 service treatment record noted that the Veteran was anxious about an upcoming surgery (tonsillectomy). A May 1981 record indicates that the Veteran was diagnosed with alcohol dependence and underwent counseling; mental examination revealed no psychosis or dementia. The remaining service treatment records, from both periods of service, reveal no complaints or diagnoses relating to a psychiatric disorder. The Veteran's June 1983 service separation examination revealed that no psychiatric disability was noted on clinical examination; the Veteran specifically denied that she had nervous trouble or depression on the corresponding Medical History Report. April 1985 and November 1986 service physical examinations revealed that no psychiatric disability was noted on clinical examination; the Veteran specifically denied that she had nervous trouble or depression on the corresponding Medical History Report. A January 1991 service physical examinations revealed that no psychiatric disability was noted on clinical examination; the Veteran specifically denied that she had nervous trouble or depression on the corresponding Medical History Report. A March 1996 private medical record reveals that the Veteran attempted suicide by overdosing on medications. Discharge diagnoses included major depressive episode and panic disorder. The Veteran's military service was not discussed. A January 1997 VA record noted that the Veteran had been under the care of a psychiatrist on a regular basis since November 1995. A February 1997 letter from the Veteran's private physician noted that the Veteran reported that she had been using drugs and alcohol since she was 12 years old and had seen a Navy psychiatrist in 1985 and had been placed on anti-depressants at that time. An April 1998 VA record noted a diagnosis of depression with psychotic features. A December 2004-January 2005 VA discharge summary indicated that the Veteran was overwhelmed by stress at home concerning one of her children. The diagnoses included bipolar disorder and borderline personality disorder. At a May 2013 VA (QTC) psychiatric examination, the diagnoses were (Axis I) depressive disorder and (Axis II) borderline personality disorder. The Veteran indicated that she had been involved with drugs and alcohol prior to active service. She had attempted suicide twice prior to her active service. The Veteran denied any administrative or interpersonal problems during her military career. The Veteran indicated that she earned a Registered Nurse (RN) degree and had last worked as a nurse in 1996 but had to stop due to a mental breakdown. She stated that she had sought treatment for a situational reaction during her service in the Navy Reserve. She also stated that she was hospitalized and treated for depression during her service in the Reserves while stationed in Spain. The examiner stated that the Veteran's primary mental health problem was her borderline personality disorder. The examiner also stated that the Veteran's mental health conditions did not develop during her military service and were not negatively impacted by her military career. While the Veteran has been diagnosed with various psychiatric disorders including depressive disorder and bipolar disorder, the service treatment records from both periods of active service are noticeably absent any finding of a diagnosis of a chronic psychiatric disability. As noted, multiple service physical examinations indicated no psychiatric disability. There is also no evidence of a psychosis being demonstrated to a compensable degree within the first year of service discharge. The first documentation of any sort of psychiatric disorder is not shown until, at the earliest, November 1995. Notwithstanding that a psychosis has not been diagnosed, the presumption of service connection under 38 C.F.R. § 3.309(a) would fail based on this timing. There is also no competent medical opinion linking the Veteran's psychiatric disability to service. The May 2013 VA examiner indicated that the Veteran's psychiatric problems had not developed during service and had not been impacted by her military service. The Board observes that none of the Veteran's private healthcare providers have indicated that any of the Veteran's psychiatric disorders are related to her military service, including her asserted reserve service. The Board notes that the May 2013 VA examiner's opinion is uncontradicted. As for the probative value of the May 2013 VA examiner's opinion, the Board observes that the examiner reviewed the pertinent medical facts, had a rationale for the opinion, and made references to specific clinical findings from the record. The Board acknowledges that the Veteran is competent to report symptoms of feeling depressed during service and further acknowledges that she has received medical training as a RN. However, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating psychiatric disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). This lay evidence does not constitute competent medical evidence and lacks probative value. It is also largely outweighed by the professional opinion rendered by the VA examiner. As for continuity of symptomatology since service, the Board notes that it appears that the Veteran has not even asserted that she has had psychotic symptoms since service. Indeed, to the extent that such an assertion has been made, the Board notes that the Veteran specifically denied that she had any mental problems in June 1983, April 1985, November 1986, and January 1991. With respect to any substance abuse problem the Veteran may be asserting, it is important to note that pursuant to 38 U.S.C.A. § 1110, "no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs." VA regulation defines the frequent use of drugs to the point of addiction as willful misconduct, 38 C.F.R. § 3.301(c)(3) (2012). However, "where the use of drugs or addiction thereto results from a service-connected disability, it will not be considered of misconduct origin." Id. In sum, service connection for an acquired psychiatric disorder is not warranted. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs