Citation Nr: 1608789	
Decision Date: 03/04/16    Archive Date: 03/09/16

DOCKET NO.  09-10 816	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a psychiatric disorder, to include dysthymic disorder. 


REPRESENTATION

Veteran represented by:  The American Legion


ATTORNEY FOR THE BOARD

A. N. Nolley, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 1979 to September 1985.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In March 2009, the Veteran requested a hearing before the Board in Washington, DC.  The hearing was scheduled for July 22, 2014, however, the Veteran failed to appear at the hearing.  As will be discussed below, the Veteran's whereabouts are unknown.  To date, neither the Veteran nor her representative has requested that the hearing be rescheduled.  Accordingly, the Board considers the Veteran's hearing request to be withdrawn.  38 C.F.R. § 20.702(d) (2015).  


FINDING OF FACT

A psychiatric disorder is not shown to be related to the Veteran's active military service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for a psychiatric disorder have not been met.  38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.655 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.3216(a) (2015).

Proper notice from VA must inform the veteran of any information and 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 veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. 3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Dingess/Hartman, 19 Vet. App. at 486.  Prior to the initial adjudication of the above-captioned claim, the RO's September 2006 letter to the Veteran contained the requisite notice.  Id.  

The duty to assist the Veteran has also been satisfied in this case.  The Veteran's Social Security Administration (SSA) records, as well as identified VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records are unavailable.  The RO took numerous steps to obtain her records from other sources, but was unsuccessful.  In August 2007, the RO issued a formal finding of unavailability regarding these records.  In a September 2007 letter, the RO requested the Veteran to submit documents to substitute for the missing service treatment records.  The Board concludes that the RO took reasonable steps to obtain the Veteran's service treatment records from other sources and any additional measures would be futile.

In August 2014, the Board remanded the Veteran's claim for a VA examination.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The remand was sent to the Veteran at her address of record and was later returned as undeliverable.  The RO scheduled the Veteran for a VA examination to which she failed to report.  The notice scheduling the Veteran for the VA examination is not of record, however, based on the examination request, the notice was sent to a nursing home.  A December 2014 report of general information indicates that the RO attempted to contact the Veteran via telephone.  The RO was informed that the Veteran was in a nursing home, but was given the contact information for the Veteran's daughter.  The RO contacted the Veteran's daughter via telephone and left a message.  It does not appear that the daughter returned the phone call.  In a March 2015 deferred rating decision, the RO indicated that the Veteran missed her scheduled VA examination due to hospitalization.  The RO conducted an address search and determined that the Veteran was at the nursing home of record.  In March 2015, the RO sent a letter to the Veteran at the address of the nursing home in regards to scheduling a VA examination.  The March 2015 letter was not returned, however, the Veteran did not respond.  Thereafter, the RO sent the Veteran a copy of the May 2015 supplemental statement of the case at the address of the nursing home.  The letter was returned as undeliverable with a note indicating that no person with the Veteran's name resided at the address.  To date, the Veteran has not provided the VA with an updated address.  The Veteran also has not requested that a new examination be scheduled.  

The Veteran's whereabouts are unknown.  In order for VA to process claims, individuals applying for VA benefits have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits. See Morris v. Derwinski, 1 Vet. App. 260, 264 (1991).  This includes keeping VA apprised of his or her whereabouts.  The Court has also held that VA's duty to assist is not always a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Accordingly, the Board concludes that the actions of the RO were in substantial compliance with the remand directives.  Stegall v. West, 11 Vet.  App. 268 (1998).  Therefore, remanding the claim to ensure that notice scheduling another VA examination is sent to the Veteran's address of record would serve no useful purpose.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided).  As such, the claim will therefore be decided on the evidence of record.  See 38 C.F.R. 3.655(b) (2015).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. 

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service.  38 U.S.C.A. § 1113(b) (West 2014); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992).

In order to establish direct service connection for a disability, there must be: (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury incurred, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999).

The Veteran contends that she is entitled to service connection for a dysthymic disorder.  In a March 2009 statement, the Veteran indicated that she was depressed because of her nonservice-connected disorders.  In her claim she stated that her psychiatric symptoms began in February 1986.  

SSA records from December 2006 indicate that the Veteran was diagnosed with dysthymic disorder.  See Degmetich v. Brown, 104 F.3d 1327, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).

As mentioned above, the Veteran's service treatment records are unavailable.  Accordingly, there is no medical evidence of record from the Veteran's period of military service.  

Post-service VA treatment records show treatment for a psychiatric disorder in July 2001.  In treatment records from January 2002 to December 2006, the Veteran continuously reported psychiatric symptoms related to sexual trauma she experienced as a child.  SSA records indicate that the Veteran experienced daily thoughts, flashbacks, and nightmares related to childhood sexual trauma.  The SSA psychologist noted that the Veteran's post-service treatment records showed treatment for sexual trauma unrelated to military service.  

The first medical evidence of record referring to an in-service event was a February 2002 VA treatment record in which the Veteran reported that she was sexually harassed while in service.  In an October 2006 VA treatment note, the Veteran reported experiencing intrusive memories of being in a foxhole in the DMZ in Korea.  The earliest medical record showing treatment for a psychiatric disorder was approximately 16 years after discharge from service.  The lapse of several years between discharge from active service and treatment for the Veteran's psychiatric disorder is evidence against the claim.  See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).

As mentioned above, the Veteran failed to appear for her scheduled VA examination and the Veteran has not contacted VA to reschedule the examination.  Although there is evidence of a currently diagnosed psychiatric disorder, there is no probative evidence of record linking the Veteran's psychiatric disorder to service or any incident therein.  More specifically, the medical evidence of record suggests that the Veteran's psychiatric disorders are related to non-military sexual trauma. 

After a thorough review of the evidence of record, the Board concludes that the criteria to establish entitlement to service connection for a psychiatric disorder have not been met.  The Board recognizes the two instances in the post-service treatment records in which the Veteran reported in-service events that she believes are related to her psychiatric disorder.  However, the Veteran's opinions as to the cause of her psychiatric disorder are within the realm of opinions requiring medical expertise, and the Veteran has not demonstrated any such expertise.  Accordingly, her contentions are not competent medical evidence as to the cause of her psychiatric disorder and are entitled to limited, if any probative value.  Moreover, there are numerous post-service treatment records indicating that the Veteran experienced psychiatric symptoms because of her non-military related sexual trauma.  There is no medical evidence of record linking the Veteran's psychiatric disorder to her military service.  
	
Accordingly, as the preponderance of the evidence is against the establishment of service connection, the claim must be denied.  In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim of entitlement to service connection for a psychiatric disorder, that doctrine is not applicable.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 


ORDER

Service connection for a psychiatric disorder is denied.  



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs