Citation Nr: 1337447 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 08-39 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for depression. 2. Entitlement to service connection for seizures. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for residuals of an inguinal hernia, to include a scar. 5. Entitlement to service connection for schizotypal personality disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from June 2004 to September 2006. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the above claims of service connection. The Veteran submitted a Notice of Disagreement (NOD) with these determinations in June 2008, and timely perfected his appeal in November 2008. The Veteran was scheduled for a hearing on September 20, 2013. The record shows that the RO attempted to contact the Veteran by telephone to schedule the hearing, but did not speak with him and left a message detailing the scheduled hearing. Additionally, the Veteran was sent notices in August and September 2013 of the scheduled hearing. The Veteran ultimately failed to report for this hearing, and provided no explanation for his failure to report. Therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDING OF FACT The evidence does not demonstrate that the Veteran is currently diagnosed with depression, seizures, migraine headaches, inguinal hernia scar, or schizotypal personality disorder. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for depression are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for a grant of service connection for seizures are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for a grant of service connection for migraine headaches are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 4. The criteria for a grant of service connection for residuals of an inguinal hernia, to include a scar, are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 5. The criteria for a grant of service connection for schizotypal personality disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duty to Notify and Assist The 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). 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. Here, the duty to notify was satisfied by way of a letter sent to the Veteran in November 2007 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran's and VA's respective duties for obtaining evidence. The letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Under the circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board recognizes that, under VA's governing regulations, it is obligated to make reasonable efforts to assist an appellant in obtaining evidence necessary to substantiate his claim, including any "relevant records" in the custody of VA or another federal agency. 38 C.F.R. § 3.159(c)(2). However, with respect to the Veteran's claims of service connection for depression, seizures, migraine headaches, inguinal hernia scar, and schizotypal personality disorder, the Board observes that the duty to assist is not boundless in scope, and VA is only required to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. VA is not required to assist him in obtaining identified records if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). Additionally, the Board notes that although VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As stated above, the Veteran was initially sent a VCAA notice letter in November 2007 for his claims of service connection; the letter was returned as undeliverable. In April 2008, the RO documented that they attempted to contact the Veteran by phone, which was not in service. Additionally, the RO attempted to get the Veteran's current contact information through his representative, Disabled American Veterans; however, the attempt was documented as unsuccessful, noting that the representative had the same information that VA already had of record. In a November 2008 statement, the Veteran reported his new address. Mail sent to that address, to include the April 2010 Supplemental Statement of the Case (SSOC), was returned to the RO. A February 2011 note documented that the Veteran was resent the April 2010 SSOC to an address found through Debtor Discovery. The Veteran failed to respond to the notice letters sent regarding the necessary evidence needed to support his claims. Additionally, the Board acknowledges that the RO is required to obtain Social Security Administration (SSA) records prior to adjudicating an appellant's claim in compliance with its duty to assist. See Murinscak v. Derwinski, 2 Vet. App. 363 (1992); 38 C.F.R. § 3.201(a) (2012). In this case, however, the Veteran's SSA records have been determined to be unavailable. The April 2010 SSOC noted findings of the Veteran's SSA records. However, an April 2010 letter in the file noted that the Veteran's mother's SSA records were accidentally obtained instead of his and that the records were going to be destroyed. Subsequently, the RO requested a copy of the Veteran's SSA records. A July 2011 reply from SSA noted that they did not presently have medical records of the Veteran on file or were unable to locate them. The RO sent the Veteran a September 2011 letter informing him that they were unable to obtain his SSA records, and asking him to provide a copy of any SSA records in his possession; however, the Veteran failed to respond to this inquiry. In a September 2011 memorandum, the RO made a formal finding of unavailability of SSA records, noting all efforts made to obtain these records. As a final point regarding the duty to assist, the Board acknowledges that the Veteran has not been afforded VA examinations in connection with the issues on appeal. However, a February 2012 letter was sent by the RO to the Veteran stating that examinations were requested through a private medical facility in order to determine the current level of his disabilities. Records indicate that the Veteran was scheduled for examinations through a private medical facility in March 2012, however, he failed to appear to these examinations. Pursuant to 38 C.F.R. § 3.655, failure to report for an examination in conjunction with an original compensation claim, without good cause, may result in a denial on the merits insofar as the claim will be decided on the evidence of record. However, the Veteran provided no explanation for his failure to report to the scheduled examination. Therefore, the claims will be decided on the evidence of record. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records. 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 or attempted to be obtained. 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. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that further efforts to obtain any records would be futile, and a remand for this purpose is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided); VAOPGCPREC 5-04 (2004), 69 Fed. Reg. 59,989 (2004). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Legal Criteria Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). In a claim for service connection, the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit 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. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Analysis The Veteran contends that his depression, seizures, migraine headaches, inguinal hernia scar, and schizotypal personality disorder had their onset while on active duty. In a November 2004 record the Veteran reported seizure-like activity where he was unresponsive for three to five minutes. During the examination, the Veteran reported no current history of syncope, but reported that he had a seizure at age 7. The examiner initially opined that the episode was possibly secondary to heat stroke, low magnesium levels, or intracranial processes, but later ruled out seizure disorder and diagnosed dietary hypomagnesaemia with weakness and neural irritability that led to the Veteran's seizure. The findings were supported with laboratory results indicating decreased magnesium levels and normal November 2004 MRI results. In December 2004, during an emergency room examination, the Veteran was diagnosed with a convulsion and seizure following a loss of consciousness. An April 2005 record shows that a medical examiner released the Veteran to return to full duty because he was free of seizures for six months. However, records from April 2005 indicate a loss of consciousness with a possible convulsion. In August 2005, the examiner recorded the Veteran's report of a syncope episode and possible seizure disorder, and opined an association between the Veteran's condition and a psychological disorder. The Veteran's service treatment records note a reported history of diagnosed depression. September 2005 records indicate mild depression symptoms, dysfunction, with occupational problems, with a diagnosed prolonged bereavement response, and schizotypal personality disorder. An August 2005 record shows that the Veteran expressed suicidal ideation and depression. Additionally, his treatment records show that in November 2004, he was diagnosed with variants of migraines. The records noted a recent history of headaches, existing for the past three months, with symptoms including sensitivity to light and sound. The Veteran was diagnosed with cluster headaches, supported with normal MRI findings. In an April 2005 record, the Veteran reported a history of mixed headaches and indicated that his condition had completely resolved within the past four months. Lastly, April 2006 records show residuals of a July 2005 hernia repair resulting in a 20 cm abdominal scar. As noted above, the record does not contain any post-service VA or private treatment records. There is no evidence of record showing current diagnoses or treatment for depression, seizures, migraine headaches, inguinal hernia scar, or schizotypal personality disorder. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C.A. § 1131 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (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." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under these circumstances, for the Board to conclude that the Veteran has depression, seizures, migraine headaches, inguinal hernia scar, and schizotypal personality disorder that had their origin during service would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply put, in the absence of a present disability that is related to service, a grant of service connection is clearly not supportable. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was advised of the need to submit medical evidence demonstrating a current disorder and a nexus between a current disorder and service by way of letters from the RO to him, but he has failed to do so. A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised in the letters of the need to submit medical evidence of a current disorder and a relationship between a current disorder and an injury, disease or event in service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). In this case there is no diagnosed disorder for which service connection can be considered. As shown above, the Veteran failed to appear at the scheduled March 2012 VA examinations to assess his medical conditions. Therefore, current diagnoses and possible nexus opinions were not obtained at that time. Additionally, the Veteran has not submitted any medical records for the claimed conditions since filing the claims in August 2007. Therefore, the requirement of a "current disability" is not satisfied as there is no evidence of depression, seizures, migraine headaches, inguinal hernia scar, or schizotypal personality disorder diagnosed at the time the claims were filed or at any time during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, service connection for depression, seizures, migraine headaches, inguinal hernia scar, and schizotypal personality disorder are not established in the absence of competent evidence of a current disorder and a relationship between the current disorder and service. Based on the evidence and analysis above, the Board concludes the criteria for service connection are not met. Because the evidence preponderates against the claims the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for depression is denied. Service connection for seizures is denied. Service connection for migraine headaches is denied. Service connection for residuals of an inguinal hernia, to include a scar, is denied. Service connection for schizotypal personality disorder is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs