Citation Nr: 1340674 Decision Date: 12/09/13 Archive Date: 12/20/13 DOCKET NO. 09-46 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) with the Army Reserve from April to September 1975. See DD-214. In addition, letters from the Department of the Army indicate he was called up for active training during various weeks between May 1977 and July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2011, the claim was remanded by the Board for additional evidentiary development, to include obtaining outstanding VA treatment records from San Juan, Puerto Rico. Correspondence dated June 2011 from the VA Medical Center (VAMC) in San Juan indicated that it had no records pertaining to the appellant. The appellant was notified of such finding. Thereafter, in September 2012, the Board remanded the claim again to schedule the appellant for a VA examination and to attempt to obtain additional service treatment records as well as private and VA medical records. The appellant was afforded an examination in December 2012 with follow-up testing in January 2013. The examiner reviewed the claims file and considered the appellant's own statements before providing an opinion as to the etiology of the appellant's diagnosed mental health conditions that was based on an adequate rationale. Private treatment records were not obtained. VA contacted the appellant in September 2012 to ask him to provide assistance in gathering private medical evidence pertinent to his claim. A response was not forthcoming. Upon review of the evidence, the Board determines that any private medical evidence would only serve to indicate a present psychiatric diagnosis which is supported by other evidence in the record. Therefore, the absence of any outstanding private records is not prejudicial to the appellant and another remand to make further attempts to locate them is not warranted. As for the VA treatment records, all records from the Orlando VAMC through June 2013 were associated with the claims file. The Board finds that the remand directives have been completed and, therefore, another remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. The issue of service connection for erectile dysfunction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All evidence necessary for the equitable resolution of the issue on appeal has been obtained. 2. An acquired psychiatric disorder was not incurred during the appellant's period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 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 his 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). The VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, VA satisfied its duty to notify in a February 2008 pre-adjudication letter. In that letter, the RO provided notice to the appellant explaining what information and evidence was needed to substantiate a claim for service connection, including what he needed to provide and what would be obtained by VA. The appellant responded to this letter stating he had no information or evidence to substantiate his claim other than his service treatment records (STRs). See January 2008 Claim; February 2008 VCAA Notice Response. The STRs were obtained and associated with the claims file. VA also has a duty to assist by helping to obtain any relevant records and, when appropriate, providing a VA examination in connection with a claim. Here, following denial of his claim in April 2008, the appellant filed a Notice of Disagreement (NOD) stating that he received treatment for depression at Fort Dix in New Jersey in 1975. See January 2009 NOD. VA requested these records in February 2009. A negative response was received in July 2009 indicating that any available mental treatment records from 1975 would be located in the appellant's STRs. In his November 2009 Form 9, the appellant indicated he was being treated at the VAMC in Puerto Rico. In March 2011, the Board remanded the claim to obtain VA treatment records from the VAMC in San Juan. Correspondence dated June 2011 indicated there were no records pertaining to the appellant. In August and September 2011, VA sent the appellant ten-day letters giving him an opportunity to provide copies of any treatment records in his possession. He did not respond and a formal finding of unavailability was made. The appellant was notified of this in a supplemental statement of the case (SSOC) dated April 2012. Prior to a second review by the Board, the appellant sent evidence that he underwent a psychiatric diagnostic interview examination in October 2011. The private treatment record indicated diagnoses of depression and anxiety state, unspecified. In August 2012, the appellant indicated in a SSOC Notice Response that he had no more evidence or information to submit prior to Board review. In September 2012, the Board remanded the claim again to attempt to retrieve any potentially outstanding private medical records associated with the diagnostic interview examination. In addition, the Board instructed VA to again request records from Fort Dix because the November 2009 SOC indicated the records were requested from North Carolina rather than New Jersey. The Board also instructed VA to seek any outstanding VA treatment records and to schedule the appellant for a VA examination in connection with his claim. Following the remand, VA sent the appellant a letter asking him to provide information so VA could attempt to retrieve any outstanding private medical records. No response appears in the claims file. VA made three additional requests for records from Fort Dix, New Jersey in August 2012, November 2012 and January 2013. A negative response was received on January 30, 2013. The appellant was notified by letter in February 2013. In March 2013, the appellant informed VA that he had never been treated or hospitalized for psychiatric conditions at Fort Dix. He stated he was currently being treated at the Orlando VAMC. The VA obtained the Orlando VAMC records and associated them with the claims file. In December 2012, the appellant underwent a VA examination with a VA licensed clinical psychologist. The examiner had access to and reviewed all the evidence in the claims file and recorded the appellant's subjective complaints. She deferred diagnosis until after additional testing took place in January 2013. The examiner noted the appellant's time in the Reserve and being called for active training during various weeks between 1977 and 1980. She noted the psychiatric evaluation from 2011 providing diagnoses of depression and anxiety state, unspecified, and noted that further records were not in the claims file. Following further testing in January 2013, the VA psychologist provided an adequate rational for her opinion concerning the etiology of the appellant's diagnosed Depressive Disorder NOS and Psychotic Disorder NOS. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Since the appellant filed his claim in January 2008, VA and the Board have made numerous efforts to obtain records and to assist the appellant in supporting his claim. The Board acknowledges that private treatment records may exist that are not associated with the claims file. However, the duty to assist is a two-way street. If the appellant wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App 190, 193 (1991). The Board finds that no additional RO action to further develop the record in connection with the appellant's claim, prior to appellate consideration, is warranted. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection 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. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Initially, as to his service in the Army Reserve, the appellant is not a "veteran" unless or until it is shown that he "was disabled . . . . from a disease or injury incurred or aggravated in line of duty" during his period of ACDUTRA. If he is shown to be so disabled, such a period of ACDUTRA is then considered "active military service" and he will then be considered a "veteran" for that period of service. In other words, the appellant, who has served only on active duty for training, must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The advantage of certain evidentiary presumptions provided by law to assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active or inactive duty for training. Id. at 470-471 (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the appellant's STRs are negative for complaints of or treatment for any psychiatric conditions. Initially, the appellant contended that he was treated for depression at Fort Dix during his initial period of ACDUTRA between April 15, 1975 and September 30, 1975. VA attempted numerous times to retrieve those records which could not be located. In a March 2013, the appellant stated that he had never been treated or hospitalized for psychiatric conditions in the U.S. Military or at Fort Dix. Therefore, the Board concludes that there is no medical evidence of mental health issues or complaints during the appellant's period of ACDUTRA. The post-service medical evidence reflects initial treatment for mental health concerns at the Orlando VAMC in 2011. The appellant reported he was seen for a private evaluation in 2010. Although, as mentioned previously, private treatment records are absent from the record, it is conceded here that the appellant first sought treatment in 2010. He has provided no evidence contrary to such finding. In December 2012, the appellant underwent a VA examination in connection with his claim. As to his military service, he denied treatment for any mental health conditions. He reported that he felt "a little" depressed while in the military related to "issues with the drill sergeant" and stated he became so frustrated that he thought of "stabbing him with a fork." He stated his depression began after separation when things "changed". He had a "period of no depression then it returned 4-6 years ago". In January 2013, the appellant underwent psychological testing that was administered in a standardized fashion to indicate current functioning. In interpreting the results, she referenced a 2003 study indicating that MMPI-2 scores such as the appellant received are "effective in identifying individuals who are feigning psychopathology." She concluded that his profile viewed in combination with his behavior and effort during testing were consistent with such a finding. Following the examination of the appellant and review of the claims file, the examiner opined: Veteran meets diagnostic criteria for 311 Depressive Disorder NOS and 298.9 Psychotic Disorder NOS that is not related to military service. Review of the c-file and vista/cprs were silent for mental health treatment until 2011, although veteran reported receiving treatment in 2010 that was not documented in the c-file. In addition, he has been largely noncompliant with his psychotropic medications . . . While it is not discounted that veteran is experiencing symptoms of a mental health condition, there is the distinct possibility of secondary gain seeking, as evidenced by his multiple C&P claims for depression, information gained from testing and lack of evidence in his STR's to support onset of mental health conditions during his 5 month military reserve service in 1975. The Board acknowledges that the appellant has made only one claim for depression and that he was called up for active training in varying weeks subsequent to 1975. Nonetheless, the examiner did consider that service in review of the claims file and accurately recognized what the medical evidence shows, i.e., that there was no treatment for mental health concerns during the appellant's period of ACDUTRA and that he first sought mental health treatment in 2010, over 20 years after his time in the Reserve. There is no doubt the appellant currently suffers from diagnosed psychiatric conditions. However, there is no competent evidence that any psychological problems or disorders were incurred during his period of ACDUTRA. The appellant has not established his status as a veteran and therefore, none of the presumptions pertaining to service connection apply to his appeal. Indeed, the only positive evidence of a relationship between the appellant's current diagnoses and his period of ACDUTRA consists of his own contentions. The Board finds the appellant's statements are of little probative value because they are inconsistent and thus lack credibility. In addition, the appellant's lay statements alone cannot provide the evidence necessary for the Board to decide in his favor because he is not competent to opine as to a question of etiology that requires medical expertise. As to credibility, the appellant originally told VA that he was treated for depression at Fort Dix, New Jersey. Subsequently, he stated that was not, in fact, the case. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (stating that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements). Additionally, in a July 2013 Statement in Support of Claim, the appellant stated that he had an injury to the groin area during the military that led to "ongoing problems (such as erectile dysfunction)" and "as a result, [he] began to become very depressed and [he has] required ongoing treatment for the depression." The appellant never mentioned this claimed injury during his psychiatric treatment at VA and the Board finds no evidence of it in the claims file besides a service connection claim for a urinary condition filed in 1985 that was denied and never appealed. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (noting that there is a strong motive to tell the truth in order to receive proper medical treatment and, thus, statements occurring in the course of such treatment may be afforded greater probative value than subsequent assertions rendered solely in the interest of seeking VA benefits). The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although a layperson can provide evidence as to some questions of etiology or diagnosis, the question of a medical relationship between an acquired psychiatric disorder and service, which would require more than direct observation to resolve, is not in the category of questions that lend themselves to resolution by lay observation. Jandreau, 492 F.3d at 1376-77. See also Barr v. Nicholson, 21 Vet App 303, 309 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The appellant is not competent to opine on the question of etiology in this case. Therefore, his statements asserting a relationship between his diagnosed psychiatric conditions and his period of ACDUTRA do not constitute competent medical evidence in support of his claim. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not for application; and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disability, claimed as depression, is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs