Citation Nr: 1337147	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  09-27 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a psychiatric disability, characterized as depression with insomnia. 



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel


INTRODUCTION

The Veteran had active duty from September 1953 to September 1955. 

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. 

In November 2010, the Board issued a decision denying claims for service connection for a lung disability and a heart disability. Claims for service connection for a psychiatric disability and an increased evaluation for bilateral hearing loss were remanded for evidentiary development. 

The Veteran appealed the denial of service connection for a lung disability to the United States Court of Appeals for Veterans Claims (Court) which in pertinent part vacated the November 2010 decision and remanded that issue in back to the Board. 

In April 2012, the Board remanded the case to obtain additional records and to afford the Veteran a VA medical examination. 

In a February 2013 decision, the Board denied the claims of service connection for a lung disability to include asbestosis and thickening thorax, and an initial disability rating in excess of 50 percent for bilateral hearing loss. The Board then remanded the claim for a psychiatric disability for additional development, which is the sole remaining claim on appeal. In May 2013, the Board again remanded the case to obtain evidence in compliance with the previous remand directives. 

Additional evidence was received at the Board in October 2013. Review of that evidence shows that it consists of additional comments in support of the Veteran's claim which does not require a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). 

Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). 


FINDING OF FACT

The competent medical evidence does not show that a psychiatric disability, characterized as depression with insomnia is related to the Veteran's military service. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for a psychiatric disability, characterized as depression with insomnia, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

Prior to and following the initial adjudication of the Veteran's claims, letters dated in January 2008, February 2008, July 2008 and December 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claims, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claims, and advised to send any medical reports that he had. He was also told that it was ultimately his responsibility to support the claims with appropriate evidence. In addition, the letters provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).

Subsequent to the issuance of the July 2008 and December 2008 letters, the Veteran's claim was readjudicated in June 2009 statements of the case (SOCs), and January and March 2013 supplemental statements of the case (SSOCs). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). 

VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). 

The Board has remanded this case several times for additional development in the hope that the Veteran's service medical records could be obtained, as additional information suggested there might be alternative avenues to get the records. The most recent remand to obtain those record was in May 2013 where it was requested that the Appeals Management Center (AMC) contact the appropriate service department and obtain the Veteran's reported service record from the Pepperrell Air Force Base, St. John's Newfoundland, Canada. Subsequently, if no records were found, a formal finding of unavailability was to be placed in the file. 

Subsequent to the requested development by the AMC, it must be concluded that the Veteran's service records were likely destroyed, in the 1973 fire at the National Personnel Records Center (NPRC) facility located in St. Louis, Missouri. The Veteran was previously notified by letter dated in March 2008 and June 2012 as to the unavailability of identified service records, and then subsequent to the Board remand in May 2013 he was informed by letter that records from the Pepperrell Air Force Base, St. John's Newfoundland, Canada were unavailable. The National Personnel Records Center indicated no records were available and reiterated they were fire related. All searches had been exhausted. 

The Veteran has been notified to send any records in his possession and no supporting service records or post-service private records for that matter have been furnished by the Veteran or on his behalf. Where there are lost or missing records, VA is under heightened obligation to assist the Veteran in the development of his claim. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This heightened obligation includes searching for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991); see also Cromer v. Nicholson, 455 F.3d 1346 (2006). The case law does not lower the legal standard for proving a claim for service connection the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the claim is required. Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board concludes that the heightened duty to assist has been met in this case. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The duty to assist also, as mentioned, may include providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(4) , 3.326(a) (2013). In McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006), the Court held that an examination is required when there is (1) evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an "in-service event, injury, or disease," or a disease, manifested in accordance with presumptive service connection regulations, occurred that would support incurrence or aggravation; (3) an indication that the current disability may be related to the in-service event; and, (4) insufficient evidence to decide the case. The evidentiary requirement for element (3) is low. Id. When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). 

In this case, a VA examination and medical nexus opinion pertaining to this claim for a psychiatric disability, characterized as depression with insomnia bronchial asthma has not been provided, but the Board finds that an examination and opinion are not warranted, as the McLendon standards are not met. The only medical evidence of the Veteran's psychiatric disorder is from VA records dated from 2009 forward, many years after his military service. VA is not obligated to provide an examination in this circumstance merely as a matter of course. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004). The Veteran's STRs are missing, but there is no evidence that he was diagnosed or treated for a psychiatric disorder during service or prior to separating from service. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). The first mention of depression is in 2009, some 54 years after the Veteran's separation from service. There is no allegation of continuity of symptomatology.  Although the threshold for meeting element (3) is low, it still must be met. Given the absence of the disability in the STRs, or even suggestion of it, and for so long after service, the Board finds there is no indication the Veteran's depression may be related to his service based on the evidence of record. Accordingly, because Mclendon elements (2) and (3) are not met, a VA examination is not warranted. Id. 

Accordingly, the Board is proceeding to addressing the claim on its merits. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

Service connection

Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303(a), 3.306.

To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to establish chronicity of disease or injury in service and, in turn, link the currently claimed disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, the condition has to be one of those specifically indentified in 38 C.F.R. § 3.309(a) as "chronic, and the Veteran's psychiatric disability, characterized as depression with insomnia is not one of those diseases or disabilities. See Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013). 

Factual Background

The Veteran asserts that he first sustained psychiatric disability, depression, in 1954 when he was stationed at Pepperrell Air Force Base, St. John's Newfoundland, Canada, when he was subjected to deplorable conditions that included extreme cold and extended periods of darkness.

As already acknowledged, there are no service treatment records (STRs) to consider. 

Post-service VA records dated in September 2008 report the Veteran received treatment for depression. His medications included the anti-depressant, Trazodone. In a March 25, 2009 VA mental health evaluation, the Veteran reported a history of an oppressive military environment while stationed in Greenland, "constant cold and darkness with little to do". The diagnosis was depression, nos (not otherwise specified). VA clinical records through 2010 show that the Veteran's reported a service history of depression and report he continued to receive treatment for depression and major depression. 

Analysis

The Board has considered the evidence of record as a whole, and concludes that service connection for a psychiatric disability, characterized as depression with insomnia is not warranted. 

The Veteran currently has a psychiatric disorder diagnosed as depression or major depression by medical evidence dating back to 2008 or 2009. Without this minimum level of proof, usually in the way of a relevant diagnosis, there necessarily can be no valid claim because there is no current disability to attribute to his military service - including by way of a service-connected disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the threshold requirement for service connection has been met. 

The determinative issue is whether his psychiatric problem originated during his active military service or is otherwise related or attributable to his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Essentially, then, the key element of his claim that is deficient is one of a causal nexus. See Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999). 

Clearly, the Veteran's STRs are missing, an unfortunate circumstance. It is important to point out though that there is no documentary evidence that suggests his psychiatric disorder began during his active military service. In essence, there are no interim records, private or otherwise revealing treatment for a psychiatric disability, depression, until 2008. The Veteran last had active service in September 1955; this is more than 50 years later. And while this, alone, is not altogether determinative or dispositive of whether he had a psychiatric disorder during those several intervening years dating back to his service, it is nonetheless probative evidence tending to refute this notion. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). 

The Veteran's personal assertions that his depression is related to service in Canada and Greenland where he endured long periods of darkness and cold have been properly taken into consideration. See also Buchanan v. Nicholson, 451 F.3d 1331, 1336  (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder). In fact other than current evidence of a psychiatric disorder his lay testimony is the only remaining evidence. Ultimately, however, the evidence as a whole weighs against associating his current psychiatric disorder, depression  with his military service.

There is no competent evidence of record providing the required linkage between his current depression and his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

In deciding claims, the Board must assess the probative value of all evidence submitted, so including both lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran's own belief (that he "knew" or "felt") that his depression is related to his military service is insufficient to establish this as fact. He is not competent to provide a diagnosis of a psychiatric disorder or to relate his psychiatric disorder to his military service, since this is outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).

To the extent the lay statements by the Veteran are attempting to ascribe certain symptoms to a particular or specific diagnosis of depression or major depression, he is not competent to make this distinction. Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). 

For these reasons and bases, the evidence does not demonstrate any connection between the Veteran's psychiatric disorder diagnosed as depression and major depression and his military service. Thus, his claim of entitlement to service connection for this condition must be denied since the preponderance of the evidence is against his claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable, even with the heightened obligation to explain all the evidence of record given that the STRs are unavailable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 


ORDER

Service connection for a psychiatric disability, characterized as depression with insomnia, is denied.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs