Citation Nr: 1339138	
Decision Date: 11/27/13    Archive Date: 12/13/13

DOCKET NO.  08-03 368A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as low self esteem and depressive states.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel






INTRODUCTION

The Veteran had active military service from March 18, 1969, to April 11, 1969.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

This case was brought before the Board in June 2009, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  


FINDING OF FACT

A chronic psychiatric disorder did not manifest in active service, and any current acquired psychiatric disorder is not otherwise etiologically related to such service.


CONCLUSION OF LAW

An acquired psychiatric disorder was not incurred in or aggravated by active duty service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In the instant case, VA provided the Veteran a notice letter July 2006 that fully addressed all notice elements.  This letter informed the Veteran of what evidence was required to substantiate his claim of service connection, and of the Veteran's and VA's respective duties for obtaining evidence.  The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond.

In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

VA must also make reasonable efforts to assist the appellant 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 claims.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).

Service treatment records are associated with claims file.  All post-service treatment records identified by the Veteran have also been obtained.  The Veteran has not identified any additional records that should be obtained prior to a Board decision.  Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied.  The Veteran has been afforded a VA examination in September 2009.  See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  This examination is adequate for the purposes of determining service connection, as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with adequate supporting rationale.  See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

As noted above, the instant claim was previously remanded by the Board in June 2009, specifically to provide the Veteran a VA psychiatric examination.  This examination was provided in September 2009, and the Board has determined it is adequate for the purposes of the instant claim.  There has been substantial compliance with the prior remand, and adjudication of the Veteran's claim may proceed.  See generally Stegall v. West, 11 Vet. App. 268, 271 (1998).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

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 the claimant.

The Veteran asserts service connection for an acquired psychiatric disorder as directly related to active service, identifying his discharge as the event triggering this disability.

Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  However, as the Veteran has not been diagnosed with a psychosis, his current disability is not listed as a chronic disease under 38 C.F.R. § 3.309(a).  Therefore, the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case.

For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d).  Walker, 708 F.3d 1331.

Turning to the record, while the evidence reveals that the Veteran has been diagnosed with depression and a generalized anxiety disorder, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein.  Service treatment records are absent complaints of, or treatment for, an acquired psychiatric disorder or any related symptomatology during service.  Indeed, the Veteran has not asserted that he was treated for a psychiatric disorder during service.  As such, the Board finds a chronic acquired psychiatric disorder was not first manifest during the Veteran's period of active service.  

Post-service medical evidence reveals the Veteran complained of a number of symptoms, including nausea, abdominal discomfort, weakness and malaise, possibly secondary to depression.  However, even accepting this July 1981 private treatment report as establishing a diagnosis of depression, the Board notes that it is dated over 12 years following the Veteran's April 1969 separation from active service.  The Board may, and will, consider in its assessment of a service connection 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 Veteran was afforded a VA examination in September 2009, during which the examiner noted the Veteran's pertinent history.  After reviewing the Veteran's service treatment records and claims folder, and examining the Veteran, the VA examiner stated that the Veteran's current depression and generalized anxiety disorder was not caused by or persistently aggravated by his active duty service.  In this regard, the VA examiner determined that the current psychiatric disorder is related to the Veteran's persistent ankle disability.  

As service connection for this ankle disability has been previously denied by the Board, service connection for an acquired psychiatric disorder as secondary to an ankle disability is not warranted.  See generally 38 C.F.R. § 3.310 (2013).

In sum, the Board finds that there is no evidence of a chronic psychiatric disorder in service.  The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current depression and generalized anxiety disorder and his period of active service.  The preponderance of the evidence is against this aspect of the Veteran's claim.  The veteran has produced no competent evidence or medical opinion in support of his claim.  While he has submitted a January 2009 private psychological report, this report in no way links the Veteran's present disability to his period of active service.  In contrast, the VA examiner has linked the Veteran's current psychiatric disorders to a non-service connected disability, and the length of time between his separation from active service and first diagnosis of depression weighs against granting the Veteran's claim.

The Board acknowledges that the Veteran himself has claimed that he suffers from a psychiatric disorder that is etiologically related to active service.  However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., fatigue, malaise; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, these lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection.  Lathan v. Brown, 7 Vet. App. 359, 365 (1995).

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002).


ORDER

Service connection for an acquired psychiatric disorder is denied.




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



Department of Veterans Affairs