Citation Nr: 1336707 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 08-08 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 30, 1985 to June 28, 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In the March 2008 substantive appeal, the Veteran requested a personal hearing before a Veterans Law Judge (Travel Board hearing). The Veteran did not appear at the Travel Board hearing, which was scheduled for July 14, 2009. He did not present good cause for his failure to appear, nor did he request that the Board hearing be rescheduled; therefore, the appeal will proceed as the hearing request is considered to have been withdrawn. 38 C.F.R. § 20.702(d) (2013). The Board notes that a service connection claim for a psychiatric disorder, claimed as an organic mental disorder, was denied in an October 2004 Board decision. The issue adjudicated by the Board in the October 2004 decision is abandoned as it was not appealed to the Court and is not before the Board at this time. Another service connection claim for posttraumatic stress disorder (PTSD) was adjudicated in a December 2005 rating decision. Although the Veteran initiated the appeals process with a March 2006 notice of disagreement, he did not submit a timely substantive appeal pursuant to the September 2006 statement of the case. It is also noted that the Veteran submitted a VA Form 9 in November 2006; however, the submission did not perfect the appeal as to the PTSD claim. Instead, the Veteran used the VA Form 9 to raise a new claim for service connection (currently on appeal). Indeed, in the November 2006 VA Form 9, the Veteran explicitly withdrew the appeal as to the claim of service connection for PTSD. As the issue of service connection for PTSD was not perfected by the Veteran for appellate review, it is not in appellate status and is not before the Board at this time. See 38 U.S.C.A. § 7105(a) (West 2002). Also in this regard, the Veteran was diagnosed with bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder in January 2006 and submitted a new claim for service connection for generalized anxiety disorder and major depressive disorder in November 2006. See Boggs v. Peake, 520 F.3d 1330 (Fed.Cir.2008) and Ephraim v. Brown, 82 F.3d 399 (Fed.Cir.1996) (noting that in Boggs and Ephraim, the Federal Circuit held that claims based on separate and distinctly diagnosed conditions must be considered separate and distinct claims). For these reasons, the Board is addressing the issue of service connection on the merits. In December 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion regarding the RO's compliance with the December 2011 Board Remand is included in the Duties to Notify and Assist section below. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran did not sustain a psychiatric injury or disease in service. 2. The Veteran has currently diagnosed bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder. CONCLUSION OF LAW The criteria for an acquired psychiatric disorder, to include bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder, have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely letter dated in November 2006, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The November 2006 letter included provisions for disability ratings and for the effective date of the claims. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence with respect to the issue adjudicated herein. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records (obtained pursuant to the December 2011 Board Remand), post-service private treatment records, and the Veteran's statements. Stegall, 11 Vet. App. at 268. The Veteran has not been afforded a VA medical examination with respect to the claim of service connection for an acquired psychiatric disorder, to include bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that in disability compensation claims, the VA Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas v. Principi, 18 Vet. App. 512 (2004), the Court held that a VA examination is necessary when the record: (1) contains competent evidence that a veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. In this case, because the weight of the evidence demonstrates that the Veteran did not sustain a psychiatric injury or disease in service, and does not otherwise show in-service psychiatric symptoms or an in-service event involving psychiatric symptoms, there is no duty to provide a VA medical examination because there is nothing in service to which a current diagnosed disorder could be related. Absent evidence of an in-service event, injury, or disease to which a competent medical opinion could relate the claimed disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002); 38 C.F.R. § 3.159(d). As discussed in detail below, in this case, service treatment records and service personnel records are absent for any complaints, symptoms, or diagnosis indicative of an acquired psychiatric disorder in service. In other words, any medical opinion which purported to provide a nexus between current psychiatric disorder and service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. See 38 C.F.R. § 3.102 (VA adjudications are not to be based on pure speculation or remote possibility). The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected); Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As such, the RO has provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In this case, the Veteran is not shown to have sustained a psychiatric injury or disease in service; therefore, 38 C.F.R. § 3.303(b) does not apply as the question of nexus to service is not reached. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is 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); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. a 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for an Acquired Psychiatric Disorder The Veteran contends that he developed a psychiatric disability during his brief period of active service. Specifically, he asserts that, by the end of service, he felt a lack of motivation, which was actually a symptom of an in-service psychiatric disorder. He further contends that he was discharged, in part, due to this perceived lack of motivation. After reviewing the lay and medical evidence of record, including the Veteran's statements, the Board finds that the weight of the evidence demonstrates that currently diagnosed psychiatric disorders were not incurred in service. The Board finds that the Veteran has currently diagnosed bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder; however, the Veteran did not sustain an injury or disease which can be related to a psychiatric disorder in service, nor did he exhibit symptoms of a psychiatric disorder in service. In this regard, service treatment records are negative for any complaints, treatment, or diagnosis of a psychiatric disorder. As noted above, the Veteran contends that he was discharged, in part, for a lack of motivation indicating a psychiatric disability in service. Upon review of the Veteran's personnel records, obtained pursuant to the December 2011 Board Remand, a June 10, 1985 Personnel Qualification Record (approximately 18 days prior to discharge from active service), revealed the Veteran was assigned scores of "1" for each aspect of his PULHES profile with the exception of his hearing and ears, which was assigned a "2." The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Following the sequence of the PULHES profile indicated on the June 10, 1985 Personnel Qualification Record (with the last number indicating psychiatric condition), the Veteran scored a "1" or a high level of fitness for psychiatric condition. This physical and psychiatric profile upon separation is consistent with the results of the Veteran's PULHES profile upon enlistment into active service. Indeed, on a Record of Assignments, on the date of discharge from service, June 28, 1985, "Entry Level Separation" was listed, and there was no indication that the Veteran was otherwise discharged due to a lack of motivation or a psychiatric disorder. Here, the evidence demonstrates that the Veteran was not seen for complaints or symptoms related to psychiatric symptoms in service despite the fact that the Veteran sought medical treatment for a variety of other ailments. The Board finds that this evidence weighs against a finding that a psychiatric disorder was incurred in service. In October 2003, a private treatment report indicated that the Veteran sought treatment about 12 years after service in 1997 for inability to sleep, poor appetite, feeling of generalized body malaise and lacking in focus in what he was doing. At that time, the Veteran reported that these symptoms started years ago "when he was in the U.S." It is not clear from the Veteran's assertion that the reported symptoms began "when he was in the U.S." during active service, or simply began during a period when he was living in the U.S. and not during active service. To the extent that this evidence purports to establish that the Veteran's psychiatric symptoms began in service, the Board finds that the contemporaneous lay histories and findings in the service treatment records and personnel records are inconsistent with, and outweigh, this post-service report (approximately 12 years after service separation and as recorded by the treating physician based on the Veteran's account). For these reasons, the Board finds that the evidence of record, both lay and medical, demonstrates that the Veteran did not sustain an in-service injury or disease relevant to his currently diagnosed psychiatric disorders, especially in this particular case where the psychiatric profile upon enlistment into service and separation from service found the Veteran to be normal, and did not indicate a psychiatric disorder. As there is no in-service injury or disease to which to relate the current psychiatric disorders, the question of relationship (nexus) to service is not reached in this case. Accordingly, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include bipolar II disorder with psychotic features, major depressive disorder, and generalized anxiety disorder, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs