Citation Nr: 1752645	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  13-30 714	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as chronic depression.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

N. Peden, Associate Counsel





INTRODUCTION

The Veteran had active service from March 1974 to March 1978.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 

In June 2015, the Board remanded this appeal for further development, specifically to afford the Veteran a VA examination. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Here, the RO scheduled the Veteran for an examination and, following his failure to report for the examination, readjudicated the claim based on the evidence in the record. The Veteran has not given good cause for his failure to appear.  Thus, the Board finds that the RO substantially complied with the June 2015 remand directives.  


FINDING OF FACT

The evidence of record does not establish a nexus between the Veteran's acquired psychiatric disability, claimed as chronic depression, and his active service


CONCLUSION OF LAW

An acquired psychiatric disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and to Assist

VA has a duty to notify and assist claimants in substantiating a claim 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, 3.326(a) (2017). The duty to notify has been met.  See VA correspondence dated February 2010. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. In light of the foregoing, nothing more is required.

The notice requirements pertinent to the issue addressed in this decision have been met, and all identified and authorized records relevant to this matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, non-VA (private) treatment records. 

The Veteran asserts that he was treated for depression from 1977 to 1978 in Norfolk, Virginia. The NPRC was contacted and responded that no such records were located. Correspondence from the RO dated in June 2013 indicated that service treatment records from Norfolk, Virginia dated 1977 to 1978 were not found. The Veteran was asked to supply copies of the treatment records but failed to respond. In light of the responses from the NPRC and the RO that the records could not be located, the Board finds that additional attempts to obtain the records would be futile. The Board finds there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile.

As noted above, the Board remanded this issue to the RO in June 2015 to schedule the Veteran for a new VA examination to determine the presence and etiology of his psychiatric disorder claimed as chronic depression. An October 2015 compensation and pension examination inquiry indicates that the Veteran failed to report to his scheduled October 30, 2015 VA examination.  

There is no indication in the record that the notice of the examination was not received. See Ashley v. Derwinski, 2 Vet. App. 62 (1992) (regarding the presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of administrative regularity to RO actions).  

In this regard, however, the Board acknowledges that the actual notice letter regarding the scheduled VA examination is not of record. In May 2013, the United States Court of Appeals for Veterans Claims (Court) held that VA was entitled to the presumption of administrative regularity that VA employees had properly discharged their official duty to notify a Veteran, as an example, of a scheduled VA examination. This presumption of administrative regularity could be rebutted by clear evidence to the contrary. The Court also held that the absence of a copy of the notice letter in the claims file did not constitute clear evidence to rebut this presumption of administrative regularity. See Kyhn v. Shinseki, 24 Vet. App. 228, at 236 (2011) (Kyhn II). However, while that appeal was pending, the United States Court of Appeals for the Federal Circuit (Federal Circuit), a higher court, issued Kyhn v. Shinseki, 2013 WL 1846562 (C.A. Fed., May 3, 2013). In Kyhn the Federal Circuit vacated the lower Court's Kyhn II decision and, in doing so, held that the Court had relied upon extra-record evidence to make a finding of fact in the first instance. The lower Court had allowed VA to submit an affidavit of a manager from the VA Medical Center (VAMC) involved establishing the regular practice of mailing such notices. But the Federal Circuit held that the Court could not consider such evidence because judicial notice does not extend to affidavits from "a party's employees regarding otherwise unknown internal procedures." (slip op. at 7).

The Federal Circuit Court went on in Kyhn to further hold that the Court had done impermissible fact-finding in the first instance. The Federal Circuit essentially drew a distinction between "instances where the presumption of regularity was premised upon independent legal authority" and instance where it was based upon "evidentiary findings." (slip op. at 10).

Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, no receipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Moreover, as already explained, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). However, this presumption is rebuttable, notably as an example when there is clear evidence of nondelivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located.

Here, the report from the VA medical facility notes that the scheduled examination was canceled because the Veteran had failed to respond. The January 2016 Supplemental Statement of the Case (SSOC) indicated that the Veteran was scheduled for, but failed to report to, the scheduled examination and that evidence expected from this examination might have been material to the outcome of the claim on appeal. See also October 30, 2016 computerized record reflecting that the Veteran's VA examination was cancelled on that day due to the VA facility's inability to contact the Veteran (as a result of his failure to respond to phone calls or to written communication scheduling the medical appointment).  There is no record in the claims folder of a response from the Veteran and clearly therefore no explanation. There is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. Thus, the Board finds that additional efforts to re-schedule his examinations would be futile. 

In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q) (2017).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Analysis

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). 

VA regulations require evaluation of mental disorders using the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). 38 C.F.R. §§ 4.125, 4.126. An interim final rule was issued on August 4, 2014, that replaced the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) with the DSM-V. However, the provisions of the interim final rule apply to all applications for benefits received by VA, or pending before the agency of original jurisdiction, on or after August 4, 2014. Jurisdiction over the present appeal was first conferred to the Board in July 2014. As the Veteran's claim was certified to the Board before August 4, 2014, the DSM IV is applicable to this case.  
Finally, 38 U.S.C.A. § 1154 (a) requires that VA give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

The Veteran contends that he is entitled to service connection for chronic depression. Service treatment records are silent concerning the Veteran's mental health. A January 1978 service discharge examination reflects the Veteran did not suffer from any psychosis to include depression or excessive worry. 

Post-service VA medical treatment notes detail the Veteran's assertions of depressed mood. A treatment note dated in November 2010 reflects a diagnosis of dysthymia but gives no opinion of etiology for the acquired psychiatric disorder. A treatment note dated in December 2010 records the Veteran's contentions of depression linked to witnessing "death at Vietnam war." However, the Veteran's DD 214 does not reflect service in Vietnam, and the Veteran previously denied service in Vietnam. See November 2009 Application for Compensation.   

He has also submitted a statement from his mother which details his depressed mood post-service. She contends that he was different after active service and suffered from depression. 

As mentioned above, the Veteran's claim was remanded in June 2015 so that he could be afforded a VA examination and opinion. The Veteran failed to report. The Veteran provided no reason for missing his scheduled examination. Thus, his claim is evaluated based on the evidence of record. 38 C.F.R. § 3.655 (2017). Based on the available evidence of record, the Board concludes that service connection is not warranted for the claimed acquired psychiatric disability.  
The Board has closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's assertion of an etiological link between active service and his current acquired psychiatric disability. The Veteran's medical records do not show a consistent diagnosis of an acquired psychiatric disorder since service, and in fact only reflect a diagnosis of dysthymia decades after service. To the extent that the Veteran himself contends that his condition is related to service, the Board finds that he is not competent to render such an etiology opinion. Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011)), the specific issue in this case, the etiology of an acquired psychiatric disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection. There is no doubt to be otherwise resolved, and the appeal is denied.  

ORDER

Entitlement to service connection for an acquired psychiatric disorder, claimed as chronic depression, is denied.




____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs