Citation Nr: 1338884	
Decision Date: 11/26/13    Archive Date: 12/06/13

DOCKET NO.  10-21 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include anxiety, depression, and substance abuse.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. M. Celli, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1977 to July 1980, with additional service in the Army Reserves.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

Generally, the scope of a mental health disability claim includes any psychiatric disorder that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  In June 2009, the Veteran submitted a claim of entitlement to service connection for anxiety, depression, and substance abuse.  Accordingly, the Board has characterized the Veteran's claim broadly as shown on the title page.


FINDING OF FACT

The evidence does not demonstrate that the Veteran has a current acquired psychiatric disability other than primary substance abuse.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disability have not been met.  38 U.S.C.A. §§ 105, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  The record shows that a July 2009 letter dated satisfied the duty to notify provisions prior to the RO's initial adjudication of the issue on appeal.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the letter.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also finds the duty to assist the Veteran has been satisfied in this case.  The record includes the Veteran's service personnel records, service treatment records, and VA treatment records.  The Veteran was not provided a VA examination pursuant to his claim.  Generally, a VA medical examination is required for a service connection claim only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (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 or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  As will be discussed in greater detail below, the evidence does not show a current acquired psychiatric disability for which service connection may be granted, or recurrent symptoms that are not already attributed to substance abuse.  In addition, service treatment records and service personnel records do not demonstrate complaints of, treatment for, or indicators of an acquired psychiatric disability during active duty.  As a result, the Board finds the evidence does not demonstrate that any acquired psychiatric disability may be associated with an in-service event, injury, or disease.  Consequently, a VA examination is not warranted in this case.  McLendon, 20 Vet. App. at 83.

There is no indication in the record that any additional evidence relevant to the claim is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

II. Analysis

Service connection may be established for a disability resulting from a disease or injury incurred in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  

That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  The United States Court of Appeals for the Federal Circuit held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases explicitly recognized in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331, 1338 (2013).  In this respect, the Board notes that the only psychiatric disabilities listed among the disorders determined by VA to be "chronic" in 38 C.F.R. § 3.309(a) are psychoses. 

Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain listed disabilities, such as psychosis, if the disability is manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  As the evidence does not show that the Veteran has a psychosis, these provisions are not applicable.

The Veteran asserts that he has an acquired psychiatric disability, to include anxiety, depression, and substance abuse, as the result of active duty.  In a July 2009 written statement, the Veteran stated he was treated for substance and drug abuse during active duty and that he was currently being treated for anxiety, depression, and substance abuse.  

The Veteran's service treatment records do not demonstrate complaints of, treatment for, or a diagnosis of an acquired psychiatric disability.  A March 1980 service treatment record shows a review of the Veteran's records was performed.  According to the report, there were no indicators of mental or emotional instability and no evidence of drug or alcohol abuse.  The Veteran's service personnel records reflect good reviews of the Veteran's job performance.  There is some evidence of several unexcused absences during the Veteran's service in the Army Reserves.

VA treatment records show the Veteran entered a mental health domiciliary program in June 2009 and reflect Axis I diagnoses of alcohol dependence and cocaine dependence.  A May 2009 VA treatment record indicates a screening for depression was positive, and a June 2009 VA treatment record shows an Axis IV diagnosis of "some depression."  The records are otherwise silent with respect to any psychiatric symptoms unrelated to substance abuse.    

At a March 2011 informal conference with a Decision Review Officer (DRO), the Veteran reported that he had experienced "separation anxiety" upon his entrance into active duty, and as a result, he began to abuse alcohol, marijuana, and cocaine during service.  The Veteran stated that he did not seek treatment for mental health issues or substance abuse issues during service but that they impacted his job duties.  As a result, he was written up on several occasions for his job performance.  He also reported that he first sought treatment through the VA in 2009.

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).  Evidence must show that the veteran has the disability for which benefits are being claimed.  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  In the absence of proof of a present disability, there can be no valid claim.  Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

After review, the Board finds that the medical evidence does not support a current diagnosis of a disability for which service connection may be granted.  VA records demonstrate diagnoses of alcohol dependence and cocaine dependence.  However, VA law and regulations preclude granting service connection for a disability that originated due to substance abuse, as this is deemed to constitute willful misconduct on the part of the claimant.  See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.301(d) (2013); see also Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001) ("Veterans can only recover if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder").

In addition, the Board finds the notation of "some depression" and the positive screening for depression are not sufficient to constitute a clear diagnosis of a current acquired psychiatric disability for service connection purposes in light of the fact that all of the Veteran's VA treatment records demonstrate only Axis I diagnoses of alcohol dependence and cocaine dependence.  Moreover, these records reflect treatment solely for substance abuse.

Further, although the Veteran and his representative claim the Veteran currently has an acquired psychiatric disability (other than substance abuse), it is well established that a layperson without medical training is not qualified to render a medical diagnosis of an acquired psychiatric disability as this is a complex medical question.  See 38 C.F.R. § 3.159(a)(1); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Davidson, 581 F.3d at 1316.  The question of whether the Veteran currently has an acquired psychiatric disability related to active duty does not lie within the range of common experience or common knowledge.  It is not shown that the Veteran or his representative is otherwise qualified through specialized education, training, or experience to offer a medical opinion as to a diagnosis or etiology of an acquired psychiatric disability.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  

Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for acquired psychiatric disability.  In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable, and service connection must be denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

Entitlement to service connection for an acquired psychiatric disability is denied.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs