Citation Nr: 1804187 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 05-26 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected residuals of a bilateral mammectomy. REPRESENTATION Veteran represented by: Daniel Krasnegor, Attorney ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1976 to January 1979, in the Army National Guard from September 1980 to February 1982, and subsequently in the Army Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In a November 2007 decision, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2008 Joint Motion for Remand, the Veteran's attorney and VA's General Counsel argued that a remand to the Board was necessary due to procedural and other errors committed by the Board. In an Order dated in December 2008, the Court granted the Motion. Subsequently, the Board remanded this case for additional development in October 2009, December 2011, May 2016, and February 2017. The matter has since been returned to the Board for further appellate action. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The competent and probative evidence does not establish that the Veteran is currently diagnosed with an acquired psychiatric disorder. Depressive symptoms are note but probative clinical evidence fails to reveal an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include as secondary to service-connected residuals of a bilateral mammectomy have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.102, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §5103 (West 2014); 38 C.F.R. § 3.159(b) (2017). VA provided the required an initial notice in November 2003, prior to the initial adjudication and readjudication of the claim in a supplemental statement of the case (SSOC). Further notices have been provided to the Veteran since then in February 2005 and January 2010. See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007). VA also satisfied its duty to assist the Veteran in developing his claim. 38 U.S.C.A. § 5103A (West 2014). In connection with the current appeal, VA has of record evidence including available service treatment records, VA treatment records, and written statements that were submitted by the Veteran. Further, in February 2017, the Board remanded the appeal for further development. Specifically, the Board directed the AOJ to obtain a clarifying addendum opinion on whether the Veteran had a current diagnosis of a psychiatric disorder and if so, whether his diagnosed mental disorder is aggravated by the Veteran's service-connected residuals of a bilateral mammectomy. In June 2017, the addendum opinion was completed and it is now included in the Veteran's claims file. For reasons discussed in further detail below, the Board finds this addendum opinion adequate. Therefore, the above actions constitute substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). They also satisfy VA's duty to assist the Veteran. II. Service Connection The Veteran is seeking entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected residuals of a bilateral mammectomy Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection could be warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection is also warranted for any permanent increase in severity (aggravation) of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2014). 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The criteria for service connection for a psychiatric disorder, to include as secondary to service-connected residuals of a bilateral mammectomy have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.102, 3.310 (2017). Specifically, the Board finds that there is no current diagnosis or other competent finding of an acquired psychiatric disorder in the record. Symptoms or clinical findings, such as laboratory findings (e.g., high cholesterol), are not disabilities within the law. Absent evidence of a current disability, a claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only medical records for the Veteran which discuss any psychiatric disorder are the VA examinations conducted over the years in April 2011, August 2011, June 2016, and June 2017. In all examinations, no diagnosis of any mental disorders has been given. Thus, despite recent contentions that the most recent examination is inadequate, the Board disagrees. In the absence of acquired pathology being demonstrated, further hypothetical discussion is not indicated. Further, the Veteran's service treatment records (STRs) do not demonstrate a diagnosis of any psychiatric disorder. His December 1979 separation examination indicates normal psychiatric findings, even though the Veteran already went through mammectomy in 1977. The Veteran's STRs dated in May 1983 indicates that the Veteran did not have "depression or excessive worry" even though the note mentions bilateral mammectomy. Following separation from active duty, the Veteran's National Guard records do not reflect any psychiatric complaints or treatment either. VA post-service treatment records from June 1998 to October 1995 reflect that the Veteran was treated for injuries other than the residuals of a bilateral mammectomy and they do not contain any diagnoses or treatments of the Veteran for psychiatric disorders or symptoms thereof. These records do show treatment for drug abuse and make reference to low self-esteem. It appears, however from these records that the low self-esteem was associated with the Veteran's drug use and his weight. Other acquired psychiatric pathology is not demonstrated in these clinical records. There are some reports of symptoms of anxiety and depression, but these are not attributed to any acquired psychiatric pathology. The Veteran provides his own statements concerning a diagnosis of depression. The Veteran reported a symptom of depressed mood in the February 2013 and June 2017 VA examinations. However, as noted above, symptoms are not disabilities within the law. The Veteran provides his own statements concerning a diagnosis of depression. However, his statements are not competent evidence of a current disability. While competent to report symptoms, his state of mind, and his personal history, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to a medical diagnosis. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed.Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Moreover, no other competent evidence of record demonstrates a current mental disability. There is no additional evidence of record pertaining to a diagnosis or treatment of a psychiatric disorder. As such, the evidence of record fails to establish that the criteria for service connection, to include as secondary to service-connected mammectomy have been met. Where the evidence fails to show a current diagnosis of a disorder, service connection for the disorder must be denied. The CAVC has held that "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." Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also, Rabideau v. Derwinsky, 2 Vet. App. 141, 143- 44 (1992). ORDER Entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected residuals of a bilateral mammectomy is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs