Citation Nr: 1336533	
Decision Date: 11/08/13    Archive Date: 11/22/13

DOCKET NO.  12-06 228	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including an anxiety disorder and major depressive disorder.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1977 to November 1983.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection specifically for an anxiety disorder not otherwise specified (NOS).  Since, however, evidence in the file indicates the Veteran has been diagnosed with major depressive disorder, as well, the Board has recharacterized his claim to account for this additional diagnosis.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  In Clemons, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  The Clemons Court found that, where a Veteran's claim identifies as an example posttraumatic stress disorder (PTSD), without more, it cannot be a claim limited only to that diagnosis, rather, it must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record).  In Clemons, the Court explained that a claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as his description of history and symptoms; VA therefore should construe a claim for service connection based on reasonable expectations of a non-expert claimant.



FINDING OF FACT

An acquired psychiatric disorder, including especially an anxiety disorder and major depressive disorder, has not been shown by competent and credible evidence to be related to any event, injury, or disease during the Veteran's service.


CONCLUSION OF LAW

An acquired psychiatric disorder, including especially an anxiety disorder and major depressive disorder, was not incurred in or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant).


The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

II. The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 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 obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

A claim of entitlement to service connection consists of five 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned once service connection is granted.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), however, the U.S. Supreme Court clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.

Here, prior to initially deciding this claim in July 2010, a March 2010 letter informed the Veteran of all five elements of his claim, gave examples of the types of evidence he could submit in support of his claim, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would tend to support his claim.  He therefore received all required notice and in the preferred sequence.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

To this end, the Veteran's STRs and post-service treatment records have been obtained and associated with the claims file for consideration.  He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to his claim.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied.  See 38 C.F.R. § 3.159(c).

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Here, in June 2010, the Veteran was provided the appropriate VA compensation examination for the necessary medical nexus opinion.  The VA examination report provides the information needed to make an informed decision on his claim.  It is evident from the report that the examiner reviewed the claims file for the pertinent history, including of the Veteran's claimed trauma in service and of the complaints, evaluation and treatment in the aftermath and during the many years since.  The examiner also performed a personal evaluation of the Veteran and, most importantly, provided explanatory rationale for the consequent opinion that is grounded in fact and based on information in pertinent medical literature.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one).

Unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (similarly holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Notably, a clinical psychologist performed the June 2010 VA compensation examination and, as indicated, provided sufficient discussion of the underlying rationale of her opinion.  The discussion of the underlying medical rationale of an opinion, not just review of the claims file, is where most of the probative value of an opinion is derived.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two"); Stefl, 21 Vet. App. at 125 ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)).  


This examiner reviewed the claims file and medical history, examined the Veteran and recorded the clinical findings, and provided clear explanation for the opinion stated that is consistent with the other evidence of record and enables the Board to make an informed decision on this claim.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (reiterating the holding in Stefl that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Accordingly, VA's duty to obtain a VA examination and opinion is satisfied.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312.

The Veteran has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice or assistance deficiency along the way.  Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Accordingly, the Board may proceed with appellate review of this claim.

III. 
Legal Criteria

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Certain diseases are considered chronic, per se, including psychoses, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.

So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).


Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required to establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a 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.


Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr, 21 Vet. App.at 307.

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  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.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is "credible," or worthy of belief.  Barr, 21 Vet. App. 303 (Observing that once evidence is determined to be competent, the Board must determine whether the evidence also is credible).  Only if evidence is both competent and credible does it ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  The third and final step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).

In ascertaining the competency of lay evidence, lay evidence has been found competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr, 21 Vet. App. 303 (concerning varicose veins); see also Jandreau, 492 F. 3d 1372 (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).

Laypersons equally have been found not competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters, 601 F.3d at 1278 (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue).

Competent medical evidence, as opposed to lay evidence, is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).


After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

IV. Analysis

The Veteran contends that his current psychiatric disorder, claimed as anxiety disorder NOS, is related to his military service.  Specifically, he alleges that he experienced several traumatic events during his service, including a potential court martial during boot camp and stint in the brig, service aboard a sinking ship during a typhoon, altercations with shipmates, and painful and possibly incompetent treatment for a now-service connected medical condition while serving in Yokosuka, Japan.

The Board has reviewed his STRs and sees that he was given an examination prior to entrance into service in August 1977.  He reported no trouble sleeping, no loss of memory, no nervous trouble, and no periods of unconsciousness.  On objective physical and mental examination no psychiatric disorder was found.

During his military separation examination in September 1983, he reported frequent trouble sleeping and depression or excessive worry.  However, he again denied loss of memory, nervous trouble of any sort, and periods of unconsciousness.  His STRs, on the whole, never mention a diagnosis of or treatment for any psychiatric disorder during his service.

So, as concerning the potential for mental illness while in service, there is no indication of a chronic - meaning permanent - psychiatric disorder.  Chronicity of disease or injury in service therefore is not shown, or certainly is legitimately questionable.

A review of the record concerning what has occurred during the many years since his service shows he first received mental health treatment in February 2010.  VA treatment records indicate diagnoses that include major depression and generalized anxiety disorder.  He received treatment for these disorders with medication and outpatient appointments at the VA mental health clinic.

In June 2010 he was examined by a clinical psychologist regarding this claim.  He reported extreme constant anxiety that had led him to smoke marijuana, stated he had constant fear and picked at his fingernails "all the time," and rated his anxiety as a five or six on a scale of one to ten.  He also said he did not remember whether the anxiety had started when he was in service or right after his separation.  He further reported not trusting others, that he got irritated really easily whenever others raised their voices at him, and that he had impaired sleep.  Based on a review of the claims file and his examination of the Veteran, the examiner made a diagnosis of anxiety disorder NOS, as well as cannabis dependence and alcohol dependence.  A Global Assessment of Functioning (GAF) score of 75 was assigned.  A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) at 32).  According to the DSM-IV, a GAF score in the range of 71-80 indicates that "if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork)."

The examiner stated that he could not make an opinion regarding the etiology of the Veteran's anxiety disorder without resorting to speculation.  His rationale was that the Veteran's separation examination indicated some depression and excessive worry; however, the Veteran had no documented mental health treatment from that point until February 2010.  The examiner said that "[w]ith such an absence of information/lack of documented difficulties spanning a 27-year period, it is not possible for [him] to accurately opine" whether the Veterran's current anxiety disorder NOS was due to his active service, or even if his symptoms were present between 1983 and 2010.

In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court held that, in order to rely upon a statement that an opinion cannot be provided without resorting to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.  The Court in Jones also acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons, 23 Vet. App. at 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").

Here, since the examination report reflects that all of the evidence was reviewed and a rationale was provided, the opinion is not considered inadequate so as to require another opinion.  However, when an opinion, such as this one, is inconclusive as to the origin of a disorder, it generally cannot be employed as suggestive of a link between the disorder and the Veteran's military service.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993).  These types of opinions also cannot be used to rule out this purported correlation, either.  Ultimately, noncommittal opinions like this amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility.  See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty).  See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). 


More recent case law, however, suggests that caution must be exercised when referring to medical reports and opinions as "nonevidence" and that, instead, the probative value or weight (competency and credibility) of the evidence should be assessed.  Notably for instance, in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), the Federal Circuit Court indicated a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying a medical opinion as "non-evidence" is "troubling."  In Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009), the Federal Circuit Court more recently held that an examiner's statement, which recites the inability to come to an opinion, provides neither positive nor negative support for service connection; therefore, it is not pertinent evidence regarding service connection.  The remainder of the report, however, must be considered as evidence of whether the disability was incurred in service.

This is not the type of situation where the Veteran has the competence to ascribe his symptoms to a particular psychiatric disorder, including his anxiety disorder and depression specifically, or to in turn relate the disorder to the traumatic events he has described as having occurred during his service.  As previously explained, lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge.  See Jandreau, 492 F.3d at 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition).  Lay evidence also may be competent to establish medical etiology or nexus.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions, such as when talking about a form of cancer.  Woehlaert, 21 Vet. App. 456 (also discussing this axiom in a claim for rheumatic fever or rheumatic heart disease).


The Board therefore finds that the diagnosis and etiology of the Veteran's psychiatric disorder - irrespective of the specific diagnosis - is beyond the competency of a mere layperson.  The Board further finds that the question regarding the relationship between such disability and military service to be necessarily complex in nature.  Therefore, as he has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that his statements are of little probative value, especially in relation to the VA examiner's inability to accurately determine the etiology of the Veteran's psychiatric disorder, as the Veteran is not competent to opine on such a complex medical question.

Because, here, there is no probative evidence suggesting the Veteran's acquired psychiatric disorder is related to his service, only instead evidence that at best is inconclusive on this critical point, he has not shown the required nexus between the current disability and his service to warrant the granting of direct service connection.

In addition, the Board sees that, during his June 2010 VA examination, the Veteran said he did not remember if the anxiety he now experiences had started while he was in service or right after his separation.  However, despite his several diagnoses, he does not have a psychosis as defined by 38 C.F.R. § 3.384, nor has he claimed to have such a condition.  His diagnoses resultantly are not the type of conditions that are considered "chronic" under 38 C.F.R. § 3.309(a).  He therefore cannot circumvent the lack of a medical nexus opinion relating any of these diagnoses to his service merely by claiming to have experienced continuous symptoms since his service under § 3.303(b).  And this is true even accepting that continuous symptoms, not necessarily instead treatment for them, is the essence of § 3.303(b).  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and his claim of entitlement to service connection for an acquired psychiatric disorder, including an anxiety disorder and depressive disorder, resultantly must be denied.


ORDER

The claim of entitlement to service connection for an acquired psychiatric disorder, including an anxiety disorder and depressive disorder, is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs