Citation Nr: 1753622 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 08-36 153 ) 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 a psychiatric disability. REPRESENTATION Appellant represented by: Kathy Lieberman, Attorney ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In May 2010, the Board denied a claim for service connection for posttraumatic stress disorder, reopened the claim for service connection for a schizophrenic reaction, undifferentiated type, competent, and remanded the claim for service connection for a schizophrenic reaction, undifferentiated type, competent, for further development. In January 2012, the Board denied the claim for service connection for a schizophrenic reaction, undifferentiated type. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims. In a February 2013 Order, the Court granted a February 2013 Joint Motion for Remand, which vacated the January 2012 Board decision and remanded the claim for additional consideration. In November 2013, the Board remanded the present claim for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). While the Board previously denied service connection for post-traumatic stress disorder, all psychiatric disabilities must be considered in this claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009) FINDINGS OF FACT 1. The Veteran was diagnosed with a schizophrenic reaction during service. 2. The Veteran does not have a current diagnosis of any psychiatric disability. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties to notify and assist claimants who make claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative of any information, and any 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 claimant is expected to provide. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). In this case, the Veteran has not raised any issues with the duty to notify or duty to assist. 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 claimant does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). 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 incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which the Board finds to be persuasive or unpersuasive, and provide the reasons for the rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A Veteran is competent to report symptoms because that requires only personal knowledge, not medical expertise, and comes to the Veteran through the Veteran's senses. Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Psychiatric Disability The Veteran seeks service connection for a psychiatric disability, to include schizophrenic reaction. The Veteran claims that he has a current schizophrenic reaction that is related to or caused by service, to include a schizophrenic reaction, undifferentiated type, chronic, that was diagnosed during service at Medical Board proceedings. In August 2007, the Veteran's treating physician described the Veteran's psychiatric history during service and in the years immediately following service. The treating physician also stated that the Veteran had been diagnosed with PTSD. However, no rationale was given to support the PTSD diagnosis and the physician did not describe any current psychiatric symptoms. Therefore, the Board finds that opinion has no probative value. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner did not provide any narrative description of symptoms to support a diagnosis of PTSD. A January 2010 VA psychiatric evaluation note indicated that the Veteran had no Axis-1 diagnosis. He appeared stable, without any acute complaint. At a June 2010 VA examination, the examiner stated that the Veteran did not have any current psychiatric disorders, and noted that the Veteran did not have sufficient psychiatric symptoms to support a diagnosis. At a February 2015 VA examination, the examiner stated that the Veteran did not have any current psychiatric disorders, and noted that the Veteran did not have fulfill the symptoms criteria for any diagnosis on Axis I. The examiner further explained that the Veteran lived a very successful social, occupational, and marital life until his retirement in 2004. The VA examiner opined that the medical evidence established that the single incident that occurred in service was acute, transient, and resulted in no residual disability, as he reobtained his normal life within a few years after service. After service, the Veteran married, fathered children, worked uninterrupted, and behaved socially. While the Veteran's service medical records indicate that he was diagnosed with a schizophrenic reaction, undifferentiated type, chronic, there is no evidence of a current diagnosis or current symptoms of any acquired psychiatric disorder, to include a schizophrenic reaction. During the period of the pendency of this claim, and contemporary to the pendency of this claim, the preponderance of the evidence is against a finding that any psychiatric disability is present. Service connection for PTSD requires a diagnosis of PTSD in accordance with applicable criteria. 38 C.F.R. §§ 3.304(f); 4.125 (2017). The Board finds that there is no diagnosis of record that meets the applicable criteria for a diagnosis of PTSD. Even if the Board were to consider the treating physician's recording of PTSD, without narrative justification that the criteria for that diagnosis were met, the Board finds more credible the VA examinations that found no psychiatric diagnosis was warranted. With chronic disease shown as such in service, or within a presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. That rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2017). While the schizophrenic reaction in service was deemed to be chronic at that time, the Board notes that the showing of chronicity in service for the schizophrenic reaction was not sufficiently found to be chronic. The mere statement of the word chronic at that time is no sufficient to establish the presence of a chronic disability. The evidence does not show manifestation of a psychiatric disability during or contemporary to the claim period that would establish that a finding of chronicity was supported. The VA examiner found that "the single incident that occurred in service was acute, transient, and resulted in no residual disability. " The Board finds that the inservice incident is show to more likely than not have been an acute and transient incident that resulted in no residual disability. Therefore, service connection cannot be established based on the manifestation of a chronic disease during service and then during or contemporary to the claim period. The Board also finds that service connection cannot be established based on a showing on continuity of symptomatology because the evidence does not currently show a psychiatric disability and the evidence does not show continuity of symptomatology following service. Service connection may only be granted for a current disability. When a claimed disability is not shown, there may be no grant of service connection. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). To the extent that the Veteran has attempted to establish a psychiatric diagnosis, including that of a schizophrenic reaction, through his own lay assertions, the Board finds that the Veteran is not competent to diagnose that he has a current a schizophrenic reaction, or any other mental disorder, due to the medical complexity of the matter. Training is required to diagnose mental disabilities. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Veteran is not competent to make such a diagnosis. After a review of all of the evidence of record, both lay and medical, the Board finds that the weight of the competent evidence is against a finding that the Veteran has any diagnosed psychiatric disability during or contemporary to the claim period, to include a schizophrenic reaction. The Veteran has asserted that he should be entitled to service connection for a schizophrenic reaction. However, service connection is only warranted if a claimant has a current disability. Because the preponderance of the evidence is against a finding that a diagnosis of any psychiatric disability is warranted, the claim must be denied.. 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. § 5107 (2012). ORDER Entitlement to service connection for a psychiatric disability, to include schizophrenic reaction, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs