Citation Nr: 1625579 Decision Date: 06/27/16 Archive Date: 07/11/16 DOCKET NO. 10-11 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990, and from January 1991 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been presented to reopen a claim for service connection for depression since a final and unappealed RO decision denying service connection for depression in May 1999. In September 2013, the Board reopened the claim, and remanded it for additional development. This appeal was processed using the VBMS and Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder due to his service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in, and is not otherwise due to, the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that service connection is warranted for an acquired psychiatric disorder. He argues that he has depression due to headaches, which he asserts are related to his service. See e.g., Veteran's appeal (VA Form 9), received in February 2010. In a final and unappealed decision, dated in May 1999, the RO denied service connection for seven different disabilities, to include headaches, and "fatigue and memory loss and associated with a psychiatric condition as due to an undiagnosed illness." See 38 U.S.C.A. § 7105(c) (West 2014 & Supp. 2015). Service connection is not currently in effect for headaches. In June 2008, the Veteran filed to reopen his claim for an acquired psychiatric disorder. In August 2008, the RO determined that new and material evidence had not been presented to reopen a claim for service connection for major depression. The Veteran appealed, and in September 2013, the Board reopened the claim, and remanded it for additional development Additional medical evidence has been received following the issuance of the most recent supplemental statement of the case in June 2014, and that it is not accompanied by a waiver of RO review. See 38 C.F.R. § 20.1304 (2015). However, this evidence merely shows continued treatment for disorders that include depression, the existence of which has already been established, and the Board has determined that this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c). Accordingly, a remand for RO consideration is not required. The Board notes that in November 2015, the RO determined that new and material evidence had not been presented to reopen claims for service connection that included headaches. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). The Veteran's service treatment records do not show any complaints, treatment, or diagnoses involving psychiatric symptoms. The Veteran's separation examination report, dated in April 1991, shows that his psychiatric condition was clinically evaluated as normal. See also examination reports, dated in November 1989, and October 1990 (same). Several "reports of medical history" show that the Veteran indicated that he did not have a history of depression or excessive worry, or nervous trouble of any sort. See reports of medical history, dated in November 1989, October 1990, February and April of 1991. Simply stated, at some points in this record the Veteran himself provides evidence against this claim. As for the post-service medical evidence, it includes a VA Persian Gulf Survey, dated in January 1995, which shows that the Veteran denied any psychiatric problems. VA progress notes show that the Veteran was diagnosed with depression in 2001. A number of subsequent reports note "depression, headache (primary)." A December 2009 VA progress note contains a diagnosis of major depressive episode without psychotic features in remission on medication. A VA chronic fatigue syndrome examination report, dated in August 1998, contains diagnoses that included depression. An addendum, dated in February 1999, contains an impression noting that the Veteran does not appear to have any clinical depression at this time. In September 2013, the Board remanded this claim, in part, in order to afford the Veteran an examination, and to obtain an etiological opinion. A VA mental disorders disability benefits questionnaire (DBQ), dated in October 2013, shows that the examiner, V.V., a psychologist, indicated that the Veteran's claims file had been reviewed. The diagnosis was depressive disorder NOS (not otherwise specified). The examiner indicated that the Veteran's depression was at least as likely as not due to his "service-connected condition of headaches." In a deferred rating decision, dated in February 2014, it was noted that service connection is not currently in effect for headaches. A supplemental opinion was therefore requested. In a supplemental opinion, dated in May 2014, Dr. V indicated that the Veteran's claims file had been reviewed. Dr. V concluded that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by service. She explained, "There is no indication that depression was identified as a symptom or diagnosis during military service." She noted that in a VA Gulf War protocol examination report, dated in August 2012, the Veteran was noted to have been diagnosed with headaches in 1998, with continued treatment. The diagnosis was depressive disorder NOS. Dr. V stated, "In my opinion, the Veteran's headaches contribute to depression. However, in that, the Veteran is not service-connected for headaches, my opinion is that it is less likely than not (less than 50 percent probability) that depression occurred during military service." The Board finds that the claim must be denied. The Veteran was not treated for psychiatric symptoms during service, nor was he diagnosed with an acquired psychiatric disorder during service. His psychiatric condition was clinically evaluated as normal on three occasions during service, specifically, in 1989, 1990, and in his April 1991 separation examination report. He indicated he did not have depression or excessive worry, or nervous trouble of any sort, on four occasions during service, between 1989 and 1991, to include in his April 1991 report of medical history. In addition, the May 2014 VA opinion is considered highly probative evidence against the claim, as this examination report shows that the examiner stated that the Veteran's claims file had been reviewed, and as this opinion is accompanied by a sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, the Board has considered the Veteran's representative's March 2016 argument that this rationale is insufficient. However, in the May 2014 addendum opinion, the VA examiner clearly stated that there is no indication that depression was identified as a symptom or diagnosis during military service. She further stated that his headaches (which, it is important for the Veteran to understand, service connection is not currently in effect) contribute to his depression, and that in her opinion, it is less likely than not that the Veteran's depression is related to his service. She therefore ruled out the Veteran's service as the cause of his currently diagnosed acquired psychiatric disorder, which she indicated was due, at least in part, to a disorder (headaches) for which service connection is not currently in effect. Nothing more is logically required. There is no competent opinion of record in support of the claim. Accordingly, the Board finds that the May 2014 opinion is sufficient for adjudicatory purposes, that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, it falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report the presence of psychiatric symptoms, he does argue that he had depression during service. Rather, he argues that his depression is related to his headaches. Furthermore, the claimed disability is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding its etiology, as the evidence shows that specific findings are needed to properly assess and diagnose this disorder, and determine its etiology. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The issue on appeal is based on the contention that service connection is warranted for an acquired psychiatric disorder. The Veteran's service treatment reports and the post-service medical records have been discussed. The claimed condition is not shown during service, or until years after service. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed condition due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence, via letters dated in July 2008 and July 2012. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA records. He has been afforded an examination, and an etiological opinion has been obtained. In September 2013, the Board remanded this claim. The Board directed that the Veteran be contacted and request to provide sufficient information, and if necessary, authorization, to enable the RO to obtain any additional evidence pertinent to the claim on appeal. In October 2013, the Veteran was sent a duty-to-assist letter that was in compliance with the Board's directions. There is no record of a reply. In its remand, the Board further directed that the Veteran be scheduled for VA psychiatric examination and that an etiological opinion be obtained. In October 2013, the Veteran was afforded an examination, and in May 2014 an etiological opinion was obtained. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs