Citation Nr: 1335932 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-25 840 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as a nervous disorder. ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran had initial active duty for training (ACDUTRA) from May to October 1965 and a period of active duty from May 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board remanded the Veteran's claim for additional development in February 2008, April 2011, June 2012, and November 2012. As the requested development has been completed, the claim is now before the Board for final appellate consideration. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board has reviewed the claims file, to include documents of record that have been included in the virtual VA folder. With regard to the claim decided below, no new relevant evidence has been included in the claims file since the Supplemental Statement of the Case (SSOC) dated in June 2013. 38 C.F.R. §§ 19.31, 20.1304(c) (2012). FINDING OF FACT An acquired psychiatric disability was not shown in service nor was an acquired psychiatric disability shown until many years after service; and the Veteran's current psychiatric disability is not related to a disease or injury of service origin. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in active service, and may not be presumed to have been incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants of what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO sent the Veteran notice letters in February 2004 and March 2008. The letters informed the Veteran of how to substantiate his claim and of the allocation of responsibilities between himself and VA. Although the March 2008 letter was not sent to the Veteran prior to the initial July 2004 adjudication of the claim to service connection, as required by Pelegrini v. Principi, 18 Vet. App. 112 (2004), such was sent prior to the most recent adjudication of the claim in a June 2013 SSOC. Such development "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In pertinent part, these VCAA letters informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the need for the Veteran to advise VA of or to submit any evidence in his possession that was relevant to the case. As such, this correspondence fully complied with the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), as well as the Court's holding in Quartuccio, supra. The Board also notes that the letter in 2008 provided information regarding disability ratings and effective dates mandated by the holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file. In the November 2012 remand, the agency of original jurisdiction (AOJ) was asked to attempt to obtain STRs reflecting treatment at a military hospital in 1969 in Germany. In February 2013, the AOJ contacted the Veteran to obtain as much information as possible concerning the dates and place of treatment. The Veteran did not provide any additional information on remand, therefore, further action could not be taken. Accordingly, substantial compliance has been achieved. The RO included in the claims file the Veteran's VA treatment records. Moreover, as demonstrated by the four remands for evidentiary development in this matter, VA has attempted to include in the claims file medical treatment records from the Vet Center in Puerto Rico and in Massachusetts, from another medical facility in Massachusetts, from a medical facility in Germany, and from a VA medical facility in the U.S. Virgin Islands. Further, the Veteran has had the opportunity to present evidence and argument in support of his claim, and nothing indicates he has identified the existence of any relevant evidence that has not been requested or obtained. Indeed, in recent submissions to VA, he has indicated that evidence relevant to his appeal can be found in his STRs and in VAMC San Juan treatment records, all of which have been obtained and included in the claims file. Moreover, the Veteran, in September 2005, declined a hearing before the Board to present evidence, despite initially requesting such a hearing in August 2005. The Veteran underwent VA compensation examinations into his claim in June 2004, July 2011, and June 2012. As indicated in previous remands, due to certain deficiencies in the reports of these examinations, additional development was necessary, to include a January 2013 addendum opinion of record from the June 2012 VA examiner. Considered together, the several reports and opinions of record, dated over nearly a decade-long period, are adequate for deciding the claim on appeal. Therefore, the Board finds that no additional development to include a competent medical examination and/or opinion regarding whether a psychiatric disorder is service connected is warranted in this case. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service Connection The Veteran contends that a currently diagnosed psychiatric disorder is related to his period of active service. In particular, he alleges that a fall from a tank while stationed in Germany caused an injury to his back (nonservice-connected) which led to a psychiatric disorder. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). When a Veteran seeks service connection for a disability, due consideration shall be given to 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; 38 C.F.R. § 3.303(a). Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders, such as psychosis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be (1) medical 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) medical 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 this matter, the record establishes that the Veteran has had a current psychiatric disorder during the appeal period. The June 2004, July 2011, June 2012, and January 2013 VA reports each note a diagnosis of anxiety disorder. Moreover, VA treatment records dated until as recent as September 2011 note the treatment of anxiety. In assessing the existence of a current disorder, inquiry has been conducted into the issue of whether the Veteran has had a personality disorder during the appeal period. The inquiry was prompted by VA treatment records dated in the mid 1980s, which indicate that the Veteran may have then had a personality disorder. Generally, a personality disorder is not eligible for service connection, as it is not considered a disease or injury for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. However, additional disability resulting from a superimposed disease or injury during service may be service connected. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). Based on the development in this matter, the evidence indicates that the Veteran does not have a personality disorder. Most significantly, the July 2011 and June 2012 VA examiners, both of whom indicated a review of the claims file and an assessment of the Veteran, found that the Veteran did not have a personality disorder. Hence, the record indicates that the Veteran has one current psychiatric disorder - an anxiety disorder. With regard to whether the Veteran had a psychiatric disease or injury during service, the Board notes that psychiatric evaluations were normal at examinations in January 1965, October 1965, May 1969, and in July 1970, approximately three months prior to his discharge from service. Nevertheless, the record supports the Veteran's contention that he experienced symptoms during service. In a May 1969 report of medical history, the Veteran reported that he had nervous trouble. Although the examining physician noted no sequelae, and although the Veteran's psychiatric system was found normal just prior to his separation from service, his May 1969 complaint indicates an in-service complaint. Furthermore, the record establishes that the Veteran experienced a back injury during service (which he claims led to his anxiety). Although the STRs and SPRs are negative for complaints, treatment, or diagnosis of a back disability, the Veteran's lay assertions comprise evidence of an in-service injury. He is competent to report that he fell and hurt his back, and that he was distressed as the result of the fall and injury. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). Such statements are also considered credible and therefore probative. Nevertheless, the preponderance of the evidence of record is against the assertion that the in-service complaint of nervousness, purportedly the result of the in-service fall from a tank, relates to the current diagnosed anxiety disorder. The record contains three medical opinions addressing this issue, and each counters the Veteran's claim. The November 2011 and June 2012 VA examiners stated that the Veteran's anxiety disorder is not due to or the result of his period of active service, including the claimed slip and fall in service. Each examiner indicated a review of the claims file, each examiner discussed the Veteran's history and the evidence of record, and each examiner indicated a personal evaluation of the Veteran. For reasons detailed in the June and November 2012 remands, additional commentary on the issue before the Board was necessary. As such, the January 2013 report and opinion were provided in the claims file. In that opinion, the VA examiner (a psychiatrist who conducted the June 2012 VA examination) expressly discussed the Veteran's in-service complaint of nervousness. Further, the examiner expressly reiterated her June 2012 opinion that the Veteran's current anxiety disorder was likely not related to service. In support, the examiner stated that the Veteran did not seek psychiatric treatment until approximately 15 years following service, and that a "temporal relationship" between his disorder and service had not been established. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board finds the ultimate conclusions in the three nexus opinions to be persuasive, primarily because each is based on the evidence of record. As noted in the January 2013 opinion, the earliest evidence of record of a post-service psychiatric disorder, or of treatment for one, is dated in the mid 1980s, approximately 15 years following active service. Specifically, VA outpatient treatment reports reflect a diagnosis of claustrophobia and borderline-Narcissistic personality based on the Veteran's reported symptoms in November 1985 rather than an acquired psychiatric disorder. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability may be considered in evaluating a claim of service connection). The Board further notes that these records indicate that the Veteran sought treatment for strained marital relations, not for a disorder or incident related to service. In assessing whether the in-service injury and complaint of nervousness relate to the current anxiety disorder, the Board has closely considered the Veteran's lay statements asserting such a medical nexus. The Board has also considered the Veteran's assertions that he received medical treatment for anxiety in the 1970s at various facilities. First, VA attempted on several occasions to retrieve medical records noting treatment for a psychiatric disorder in the 1970s. However, despite its efforts, the records have not been included in the claims file. Second, though the Veteran is competent to comment on observable matters such as anxiety, his lay statements are of limited value. Simply put, he is not competent to render a diagnosis or provide meaningful commentary on the issue of the etiology of his anxiety. That is because the disability at issue involves an internal psychiatric disease process that is beyond the capacity for lay observation. Its etiology and development cannot be determined through observation or by sensation such as feeling. Moreover, even if reports of continuity of symptomatology were found credible and the Veteran was competent to provide an etiological opinion, such statements would be outweighed by the more probative medical evidence. In June 2013, a VA examiner opined that the current disorder was less likely as not related to service and noted in that regard that the Veteran sought psychiatric care in 1985, years after service due to strained military relations. The Board notes that an acquired psychiatric disorder was not diagnosed at that time. The medical opinion is based on a review of the history, a mental status evaluation and a rationale was provided. Accordingly, the opinion is entitled to greater probative weight. In sum, the record documents that the Veteran has been diagnosed with an anxiety disorder during the appeal period, and that he complained of nervousness during service in May 1969. However, the preponderance of the evidence of record indicates that the current problems are unrelated to service. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, a service connection finding is unwarranted in this matter, on either a direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs