Citation Nr: 1757746 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-30 462 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement for service connection for an acquired psychiatric disorder, claimed as bipolar disorder and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1977 to August 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the St. Petersburg, Florida Department of Veterans' Affairs (VA) Regional Office (RO) that denied service connection for major depressive disorder. In May 2014, the case was remanded for additional development. In the May 2014 remand, it was noted that the Veteran had originally filed a claim for service connection for major depressive disorder. See July 2008 VA Form 21-526. However, in the Veteran's July 2009 notice of disagreement he stated that his claim was for bipolar disorder and not depression. In light of the decision by the United States Court of Appeals for Veterans' Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board recharacterized the issue as stated on the cover page to encompass both psychiatric diagnoses. FINDING OF FACT An acquired psychiatric disorder, claimed as bipolar disorder or major depressive disorder, was not manifested in and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and to assist a claimant in the development of a claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). VA has complied with the duties to notify and to assist in this matter. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Notably, with respect to VA's duty to assist, the Veteran's service treatment records, service personnel records, and available postservice treatment records have been secured for the record. In May 2014, the Board remanded the case to develop for outstanding VA treatment records and private treatment records. In June 2016, October 2016, and November 2016, VA contacted the Veteran by letter to identify any private treatment he may have received in conjunction with his current claim, and to sign a medical records authorization form, if so. The Veteran did not respond. Meanwhile, the RO undertook efforts to obtain outstanding VA treatment records. All available records were associated with the Veteran's claims file. For those records dated January 1993 to January 2001, the Bay Pines VA Medical Center (VAMC) advised that they did not have any records for the Veteran for that time period. See July 2017 Report of Contact. Also pursuant to the Board's May 2014 remand, the Veteran was scheduled for VA examinations in February 2016 and July 2017. Despite being properly notified of these examinations, the Veteran failed to respond or report for his scheduled examinations. Neither he nor his representative alerted the RO that he could not attend, nor was good cause as to his absence offered regarding either exam. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing that evidence. The duty to assist is not a one way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). In light of the foregoing, the Board finds that the May 2014 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Additionally ,as VA has fulfilled the duty to notify and assist to the extent possible, the Board can consider the merits of this appeal without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the individual offering it 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(a)(2) This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran seeks service connection for an acquired psychiatric disorder claimed initially as major depressive disorder, which he then amended to include bipolar disorder. Medical records indicate that Veteran has needed treatment over many years for chronic mental health issues. The San Diego VA Outpatient Clinic diagnosed the Veteran with Bipolar Disorder Depressed (in early remission) in 2002, noting that he had at least five prior inpatient psychiatric hospitalizations since 1993. The Veteran was treated in June 2005 at the San Diego VAMC and at that time was diagnosed with major depressive disorder with suicidal ideation. While more recent medical records were not obtained, the Board notes that the Bay Pines VAMC conducted a medical review of the Veteran's treatment records as part of the VHA Serious Mental Illness Re-Engagement Directive. Those notes confirm that the Veteran was last seen for mental health treatment at the Bay Pines VAMC in October 2013 The medical evidence of record shows that the Veteran has an acquired psychiatric disorder that is chronic in nature and the Board is satisfied that a current disability has been established. As to the question of whether the Veteran's current disability is related to service, he indicated on his June 2008 VA Form 21-526, Veteran's Application for Compensation and/or Pension, that he was treated for mental health issues during active duty service. While he does not include specific treatment dates or detail whether or not he was treated on or off post, the Veteran references "SMRs" (i.e., service medical records) in response to the application's query regarding which medical facility or doctor treated him and the location of that doctor. The Veteran's service treatment records and military service records received by the VA are on microfiche. They were requested in October 2008 and a copy was received. The Board has thoroughly reviewed them. The Veteran's service treatment records indicate he was generally healthy throughout his tour of duty and was seen at the medical clinic for minor illnesses which were treated and quickly resolved. On August 1980 service separation physical examination, a clinical evaluation of the Veteran's psychiatric system was noted to be normal. The Veteran's service treatment records are silent for treatment of any mental health condition. Additionally, the Board conducted a thorough review of the Veteran's active duty Marine Corps records. They indicate the Veteran had an exemplary service in the US Marine Corps, earning the Good Conduct Medal and the Rifle Expert Badge. The Veteran's military records are silent regarding any indications that might reflect a personality change consistent with mental illness. In fact, the Veteran's records show that he was a stellar corpsman and there are no incidents of any type in his service file. His DD Form 214 reflects that he received an honorable discharge. Medical Records in the Veteran's file are consistent with the premise that the Veteran's mental health was not affected while on active duty. In June 2005, the San Diego VA Outpatient Clinic reviewed the Veteran's service history with him in determining the nature of his illness. Treatment records note he was a Marine who served from 1977 through 1980 with no difficulties, no combat and no PTSD issues. The earliest post service medical records in the Veteran's claims file are from the Harborview Medical Center in Seattle, Washington. The Veteran was admitted into the hospital in December 2001 after surviving a suicide attempt. His diagnosis was acute renal failure secondary to ethylene glycol ingestion. He was then transferred to the psychiatric floor. A thorough history was taken. The Veteran indicated then that he had a history of bipolar disorder from approximately 1993. He reported being prescribed lithium from 1993 through 1996, but was taking Depakote until one month prior to admission. The Harborview Medical Center treatment records, as well as all other medical records contained in the Veteran's claims file are silent regarding any causal connection between the Veteran's active duty service in the Marine Corps and his acquired psychiatric disorder. In February 2016 and July 2017, VA attempted to assist the Veteran by scheduling him for a VA examination to obtain an opinion as to the nature and etiology of his claimed acquired psychiatric disorder. However, he did not respond or report for these scheduled examinations. Where entitlement to a benefit cannot be established or confirmed without a current VA examination and the Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b) (2017). The competent evidence of record, as discussed above, does not establish that the Veteran's acquired psychiatric disorder had its onset in service or is otherwise related to his service. To the extent that the Veteran has asserted his belief that there exists a medical relationship between his acquired psychiatric disorder and service this, unfortunately, provides no legal basis for allowing the claim. The etiology of the Veteran's present psychiatric disability is a complex question that requires a medical analysis for purposes of VA compensation. As a lay person his statements are not considered a competent opinion as to the etiology of his acquired psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for an acquired psychiatric disability must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for an acquired psychiatric disability claimed as bipolar disorder and major depressive disorder is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs