Citation Nr: 1340077 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 99-16 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disability other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1970 to June 1974, from October 1976 to July 1978, and from August 1979 to March 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 1998 rating decision by the Los Angeles, California Department of Veterans Affairs (VA) Regional Office (RO). In his June 1999 substantive appeal, the Veteran requested a Travel Board hearing; in December 1999, he withdrew the request. In December 2010, the Board recharacterized the issue as service connection for a psychiatric disability, to include PTSD (in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009)); denied service connection for PTSD (as that aspect of the claim was fully developed for appellate review); and remanded for further development the matter of service connection for a variously diagnosed psychiatric disability other than PTSD. This matter was again remanded in October 2012 for additional development. As is noted above, in December 2010, the Board denied the Veteran service connection for PTSD. That decision is final. Written argument by the Veteran's representative, dated in October 2013, appears to be raising a claim to reopen the matter of service connection for PTSD. As this matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT A psychiatric disability was not manifested in service, a psychosis was not manifested in the first year following the Veteran's discharge from active duty, and the Veteran's current psychiatric disability is not shown to be related to his service. CONCLUSION OF LAW Service connection for a psychiatric disability other than PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). 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 Veteran was advised of VA's duties to notify and assist in the development of his claim. A September 2008 letter and a December 2012 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and advised him of disability rating and effective date criteria. A September 2013 supplemental statement of the case (SSOC) readjudicated the matter after the Veteran and his representative were afforded an opportunity to respond, and further development was completed. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (a VCAA timing defect is cured by the issuance of fully compliant notification followed by readjudication of the claim). He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and service personnel records are associated with the record, and pertinent postservice treatment records have been secured. The RO arranged for a VA examination/opinion with respect to the Veteran's claim for service connection for PTSD in April 1998. The Board has considered whether an additional examination (to address nexus between psychiatric disability other than PTSD and service) is necessary. Absent any competent (medical) evidence suggesting that the Veteran's psychiatric disability may be associated with his service, an examination to secure a medical nexus opinion is not necessary, as even the low threshold standard endorsed by the Court of Appeals for Veterans Claims in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including psychoses), may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from service (one year for psychoses). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all of the evidence in the Veteran's claims file and in "Virtual VA." Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence of record. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2009). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows or fails to show as to the claim. The Veteran's STRs are silent as to psychiatric complaints, treatment, or diagnoses. Notably, in April 1978, a psychological evaluation found no psychiatric history or illness. Psychiatric evaluation on July 1978 service separation examination was normal. In an associated report of medical history, the Veteran specifically denied depression or excessive worry and nervous trouble of any sort. In September 1978, the Veteran was admitted to an inpatient treatment unit for an acute psychotic episode, rule out drug induced psychosis. As discharge, the Veteran was noted as "clearly improved" and "competent." October 1991, May 1993, and January 1994 private treatment records note treatment and a diagnosis of anxiety. A VA PTSD program intake record, dated in August 1997, notes the Veteran sought no psychiatric treatment prior to this appointment. He reported being motivated to seek treatment due to being under a lot of stress at work. The Axis I diagnosis was adjustment disorder with depressed mood. An additional (undated) VA treatment record noted an impression of depression. On April 1998 VA PTSD examination, the Axis I diagnoses were PTSD and major depressive disorder. The examiner stated that "it is clear that after reviewing the hospital summary from...October of 1978 that at the time [the Veteran] was hospitalized, he was experiencing a substance-induced psychotic episode rather than a schizophrenic reaction." The examiner further noted that when the Veteran was evaluated in August 1997 and received a diagnosis of adjustment disorder with depressed mood, he was experiencing significant work-related stress. In August 1998, the Veteran's treating psychiatrist submitted a statement indicating that the Veteran has been treated on an ongoing basis for depression and anxiety and currently has diagnoses of major depressive disorder, generalized anxiety disorder and PTSD features. It is not in dispute that the Veteran has a variously diagnosed psychiatric disability diagnosed within the pendency of this appeal, to include major depressive disorder. Such disability has been diagnosed and treated, including by VA, since at least April 1998. However, a psychiatric disability was not manifested in service and a psychosis is not shown to have been manifested in the Veteran's first postservice year. The Veteran does not allege otherwise. Regarding the episode in October 1978, uncontested medical evidence (An April 1998 VA examiner's statement) indicates that such did not constitute a chronic acquired psychiatric disability, but instead reflected a "drug induced" psychosis which may not be service-connected. See 38 U.S.C.A. §§ 105(a), 1110. Hence, service connection for such disability on the basis that it became manifest in service and has persisted, or on a presumptive basis (for a psychosis as a chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. What remains for consideration is whether or not the Veteran's psychiatric disability may somehow otherwise be related to his service. The Veteran has not proposed any theory of entitlement that relates a psychiatric disability other than PTSD to his service, and the Board finds none is suggested by the record. In fact, there is no competent evidence that shows or suggests that a psychiatric disability other than PTSD may be related to his service. Without any competent evidence of a nexus between the Veteran's psychiatric disability and his service, the preponderance of the evidence is against the claim of service connection for a psychiatric disability. Therefore, the appeal in this matter must be denied. ORDER Service connection for a variously diagnosed psychiatric disability other than PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs