Citation Nr: 1616581 Decision Date: 04/26/16 Archive Date: 05/04/16 DOCKET NO. 08-23 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for psychiatric disability. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to April 1967. The matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the San Juan, the Commonwealth of Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In January 2010, the Board remanded this case for further development. The Board notes that VA medical records from the VA Medical Center in San Juan (VAMC) dated from February 2001 to September 2015 have been uploaded to the Veteran's claims file in Virtual VA. In addition, VAMC records dated from February 2001 to February 2010 have been uploaded to the Veteran's claims file in Virtual VA. Furthermore, in July 2011, the RO obtained a medical examination regarding the Veteran's claimed psychiatric disability. Lastly, in August 2011, the RO issued the Veteran a statement of the case (SOC) regarding his claim for service connection for dermatitis. Included in the SOC was notification of the need to file a timely substantive appeal, VA Form 9, to perfect his appeal on that issue. The Board is therefore satisfied there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Following the issuance of the August 2011 SOC, neither the Veteran nor any representative has submitted a VA Form 9 as to the issue of service connection for dermatitis. The Board points out that the August 2011 SOC specifically indicated that further action was required in order to perfect an appeal on that issue. Given the above, the Board finds that the matter of entitlement to service connection for dermatitis is not currently before the Board, and in consequence, the Board will not further address that matter. FINDING OF FACT The Veteran does not currently have psychiatric disability. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The record shows that the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in September 2007. This letter advised him of what information and evidence was needed to substantiate the claim, requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, and what information and evidence would be obtained by VA, namely, records such as medical records, employment records, and records from other Federal agencies. The letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings and notice of the type of evidence necessary to establish an effective date. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. He has not referred to any additional, unobtained, relevant, available evidence. The record shows that VA afforded the Veteran a VA examination in July 2011. The examination is adequate for the purpose of adjudicating the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. 3.307, 3.309(a) (2015). Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the listed chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307(a), 3.309(a) (2015). While one type of psychiatric disorder, psychoses, are chronic diseases, the Veteran does not claim and the evidence does not reflect that he has been diagnosed with a psychosis. The statutes and regulations relating to chronicity, continuity of symptomatology, and presumptive service connection for chronic diseases are thus not applicable. Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Lay evidence presented by a Veteran concerning continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he has a psychiatric disability caused by his in-service experiences in Vietnam. A review of the Veteran's service medical records does not show any treatment for a psychiatric condition, including a nervousness condition. Initially, the Board notes that the VA clinical records on file indicate the Veteran was under the care of a mental health professional outside the VA during the time on appeal. However, the Veteran did not, and has not, identified any outside healthcare provider in response to the September 2007 VCAA notice. Moreover, in November 2007 the Veteran submitted a VCAA acknowledgement form indicating that he had no other information or evidence to give the VA to substantiate his claim. As the Veteran did not identify or provide a release regarding any private or otherwise unidentified medical record, such potential evidence is not part of the evidentiary record. The first record regarding a psychiatric condition is a July 2003 VA medical record noting that the Veteran presented with a mix of depression, hyperlipidemia and back problems. This record notes that following the death of the Veteran's son three months prior, he began feeling increasingly depressed with anhedonia, frequent crying spells, restless sleep and hearing voices that awaken him from sleep. The Veteran also complained of nervousness and irritability during the previous three months. The diagnostic conditions reported were adjustment disorder with depressed mood, ruled out depression, and bereavement. The assessment states depression with psychotic features. The VA medical records show treatment for depression throughout the remainder of 2003 through 2006, mainly through prescription medication to treat his symptoms. The Veteran filed a claim for a psychiatric disability in August 2007. However, beginning in January 2005, the VA medical records show that depression screens for the Veteran were negative. The Veteran underwent further periodic depression screens that occurred from August 2006 to June 2015. The last VA medical record from September 2015 notes "no depression or suicide ideas." In July 2011, a VA examination was obtained showing no mental diagnosis was found. As a result, the July 2011 VA examiner was unable to render an opinion "[s]ince no mental condition was found upon examination..." In essence, there is no medical evidence from the time the Veteran filed his claim to the present establishing that he has a psychiatric disability. Instead, the evidence suggests that he had psychiatric disability at one point, which the medical records show arose contemporaneous with post-service events in his life, and which show that before he sought service connection for psychiatric impairment he ceased to be treated for any such impairment. Since the time he filed his claim none of the medical records indicate he has psychiatric disability, even though he undergoes periodic screenings to check for such impairment, and the records show he is no longer prescribed medication for psychiatric disability. Although some diseases and disorders are capable of lay diagnosis, and though the Veteran, a layperson, believes he has psychiatric disability, the Board finds that psychiatric impairment is not susceptible to lay diagnosis. By its very nature, psychiatric disability is not readily observable and is typically diagnosed by medical professionals. The Board consequently finds that the Veteran is not competent to diagnose himself with psychiatric disability. A necessary element for establishing entitlement to service connection is the existence of a current disability; it is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997). For VA purposes, a current disability exists when a claimant has a disability at the time a claim is filed or at some point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Accordingly, absent a psychiatric disability, the Board finds that the probative evidence is against the Veteran's claim for service connection. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a psychiatric disability and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for psychiatric disability is denied. ____________________________________________ Thomas O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs