Citation Nr: 1336565 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 10-22 620 ) 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 other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In August 2012, the Board denied the Veteran's claim of entitlement to service connection for PTSD, and remanded the issue of service connection for an acquired psychiatric disorder other than PTSD for additional development of the record. The appeal has been returned to the Board for appellate consideration. The Board observes that both paper and electronic claims files exist for the Veteran. Both the paper and electronic records have been reviewed in the adjudication of the Veteran's appeal. As noted in the August 2012 Board decision, the issue of entitlement to a total rating based on unemployability due to service connected disability has been raised by the record. It does not appear that this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action. FINDING OF FACT An acquired psychiatric disorder other than PTSD was not manifest in service and is unrelated to service. CONCLUSION OF LAW An acquired psychiatric disorder other than PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in October 2009 discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. The Veteran was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, VA and private treatment records have been obtained and associated with the record. A VA examination has been conducted. The Board finds that the examination report is adequate, in that the examination was conducted by a clinician who reviewed the record, interviewed the Veteran, and performed an appropriate evaluation. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records reflect that on pre-induction examination in February 1966, the Veteran endorsed depression or excessive worry. He specified that he had a nervous stomach. He denied nervous trouble of any sort. Clinical examination indicated that he was psychiatrically normal. The records are otherwise silent for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's psychiatric health. At his separation examination in March1968, the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. In September 2009 the Veteran stated that he had intrusive thoughts about training young troops for combat and sending them off to combat. A March 2009 VA outpatient treatment record indicates that the Veteran was seen for initial consultation. He reported that he had received regular psychiatric treatment since about 1969 for anxiety and depression. He expressed guilt over not going to Vietnam. He noted that he had seen many providers over the years and that some medications had been helpful. The diagnoses were dysthymic disorder, history of major depressive disorder, and anxiety disorder not otherwise specified. In a November 2009 statement, the Veteran listed the providers who had treated him. He did not indicate when the treatment took place and did not provide addresses or other contact information for the providers. In an October 2009 statement, J.L.L., M.D. indicated that the Veteran had been followed since May 2004. Dr. L. noted that the Veteran had prior treatment for at least 10 years for anxiety and panic, which began during service. He indicated that the Veteran had constant anxiety and fear caused by his service. He stated that the Veteran currently received treatment through VA. In November 2009 the Veteran stated that he could not find the precise addresses or dates for all of the doctors he had seen. In May 2010, Dr. L. stated that the Veteran had PTSD. He asserted that the Veteran satisfied the criteria for 100 percent disability and unemployability. The Veteran was afforded a VA examination in October 2012. His history was reviewed at length. The examiner noted the Veteran's report that his symptoms began in the 1970s and that they seemed to coincide with a period of turmoil in his marriage. The Veteran indicated that he began to have panic symptoms in 1972, occurring one to five times per month. Following examination, the diagnoses were dysthymia and anxiety disorder not otherwise specified. The examiner noted that the Veteran denied military re-experiencing of a PTSD type. He indicated that the Veteran's depressive symptoms seemed to be more characteristic of dysthymia than of a major depression. He noted that with the Veteran's report that he began to experience symptoms in the 1970s and significant depression in the early 1990s, it appeared that psychiatric symptoms of a noticeable or measurable type might not have occurred for at least two or three years after his separation from service. He stated that, given that the Veteran narratively indicated that he had no symptoms to report at the time of discharge (in contrast to the frequent reports that a person had symptoms but chose not to report them), then the argument that a clear connection existed between his mood disorders and service was tenuous at best. He opined that the argument did not reach the as likely as not level. He indicated that the impression seemed somewhat reinforced by the fact that throughout his narrative the Veteran did not return to protestations that ongoing mood problems were secondary to guilt over sending recruits overseas. He concluded that there was no positive data generated establishing a connection with the military and there were some negative indicators suggesting that the connection was less likely than not. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted for an acquired psychiatric disorder. While the evidence reveals that the Veteran has psychiatric diagnoses, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, while the Veteran has stated that he sought treatment in the years following service, he has also indicated that his symptoms began in the 1970s, such would place onset more than one year following his separation from service. Moreover, as pointed out by the VA examiner, the Veteran's narrative indicated that he had no psychiatric symptoms to report at the time of his separation from service. The Board may, and will, consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). The Board acknowledges that there are statements from a private provider suggesting a link between the Veteran's psychiatric disorders and service. However, Dr. L. did not provide any diagnosis other than PTSD, and service connection for that disability was denied by the Board in August 2012. To the extent that he might have indicated that a psychiatric disorder other than PTSD is related to service, he provides no rationale, and does not account for the Veteran's own report that symptoms did not begin until more than one year following service. The October 2012 VA examiner concluded that the current psychiatric diagnoses are not related to service. He provided a reasoned opinion based on a complete review of the Veteran's available history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's documented past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than Dr. L's statements and the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that his current acquired psychiatric disorder is related to service. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed foot disability because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiner considered the Veteran's documented history, but ultimately concluded that the current psychiatric disorder is not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements asserting that his psychiatric disorder is related to service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran, and provided opinions supported by rationale. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains psychiatric diagnoses, the preponderance of the evidence is against finding that these diagnoses are related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2013). CONTINUED ON NEXT PAGE ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs