Citation Nr: 1754837 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 17-39 743 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, to include as secondary to narcolepsy. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty in the U.S. Navy from June 1960 to February 1984, to include service during the Vietnam War. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued in September 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. FINDING OF FACT The Veteran is not shown to have a diagnosed acquired psychiatric disability as a result of his service or secondary to any service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include anxiety and depression, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his claim in March 2014. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. The Veteran has undergone a VA examination related to the appeal. See VA examination from August 2014. There is no argument or indication that these examinations are inadequate. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's issues on appeal. As such, the Board will proceed with consideration of the Veteran's appeal. Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Principles of Service Connection Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present (at any time during the pendency of the claim, see McClain v. Nicholson, 21 Vet. App. 319, 323 (2007)) disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain, 21 Vet. App. at 323. Facts and Analysis The Veteran seeks service connection for what he described as occupational impairment resulting from his narcolepsy, which has been adjudicated as a claim for an acquired psychiatric disability to include depression and anxiety. Specifically, in his November 2014 Notice of Disagreement, the Veteran stated that his narcolepsy had caused him a great deal of grief and had kept him from jobs and employment, and that he had experienced a great deal of emotional upheaval and frustration over the way VA handled his claim for narcolepsy. (See Notice of Disagreement, received 11/21/2014, p. 2.) The Veteran was provided a VA psychiatric examination in August 2014 to evaluate both the issue of service connection for an acquired psychiatric disability and the question of employability. (See C&P Exam, received 08/22/2014, p. 1.) The Veteran stated that he had never received mental health treatment of any kind and denied ever having experienced any depressive or anxious symptoms of any clinical significance. A depression screening evaluation, however, had shown evidence of moderate depression, including a lack of interest or pleasure in doing things; feeling down, depressed, and hopeless; difficulty falling asleep; fatigue; changes in appetite; difficulty concentrating; and feeling badly about himself. (See CAPRI, received 10/04/2017, p. 9.) He denied having any panic attacks, obsessions, or compulsions, but did report hallucinations in the past as a result of his narcolepsy. He denied any current or past suicidal or homicidal ideation, intent, or plan. The examiner found that the Veteran did not meet the criteria for a diagnosed mental health disorder, to include depressive or anxiety disorder. (C&P Exam, p. 3.) In a letter submitted in February 2017, the Veteran again stated that he was claiming an acquired psychiatric disability as a result of his treatment by VA in his claim for narcolepsy. (See Correspondence, received 02/23/2017, p. 1.) He specifically listed posttraumatic stress disorder (PTSD), stress, depression, and anxiety as being caused by the claims process. In an email to VA in February 2017, the Veteran noted that his VA examination in September 2014 by a psychologist had been a waste of time. (See Email Correspondence, received 10/04/2017, p. 1.) He stated that he did not have a mental disorder, he had a brain disorder, which was different. As a result, he did not have any problems with the diagnosis by the psychologist. In his VA Form 9 Substantive Appeal filed in July 2017, the Veteran specifically stated this disagreement with the separation of his appeal for anxiety and depression from that for narcolepsy, which was allowed by a rating decision issued in July 2017. (See Form 9, received 07/26/2017, p. 2.) He stated that his anxiety and depression was directly related to his narcolepsy. At the August 2017 Board hearing the Veteran presented testimony that due to the difficulties and frustration from trying to get service connection for narcolepsy he experienced anxiety and frustration and anguish, which had negatively and severely impacted him socially and occupationally. (See Hearing Transcript, received 08/24/2017, p. 2.) He first had anxiety and frustration in March 1984 when he was told that he didn't have narcolepsy, even though he had been diagnosed with it more than 20 years prior. He stated that his mental health issues were not service connected, they were "all VA connected." (p. 3.) The Veterans Law Judge explained that in order for a grant of benefits to be warranted, it would need to be secondary to the actual symptoms of narcolepsy, not to the frustration related to a claim for narcolepsy. The Veteran stated that he was not taking medication for anxiety or depression and was not being treated for either symptom because he had never complained of them to his doctor. (p. 4-5.) The Veteran stated that he was depressed because he slept at the wrong times and he was angry over the way he had been treated by VA throughout his claim. The Board has reviewed the entire claims file and all of the evidence of record, including the evidence discussed above. The Veteran's feelings of sadness, frustration, anger, and anxiety over the handling of his claim of service connection for narcolepsy by VA are clear in the record and they are understandable. The Board has no doubt that dealing with the claims process is a source of symptoms of mental distress for veterans in general, and for this Veteran in particular, especially given the evidence in this case. However, the Veteran's own statements in writing and to the 2014 VA examiner and his testimony at hearing make it clear that he does not have an ongoing diagnosed acquired psychiatric disability, which is the first requirement for a service connection claim. The September 2014 VA examiner concluded that, despite the Veteran's reports of some emotional and psychological symptoms, he did not meet the medical criteria for a diagnosis of any psychiatric disability. The law provides that VA benefits are to be paid for existing disabilities which are shown to have been caused by military service or by a disability incurred in service. There is no mechanism for providing benefits for the unfortunate emotional and psychological strain that results from dealing with the processes set up by the government to pursue such benefits. With sincere apologies to the Veteran for his frustration and anger, the Board must deny the claim because the elements of service connection set forth in the law have not been met. 38 C.F.R. § 3.303. ORDER Entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, is denied. ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs