Citation Nr: 1807716 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 12-22 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Farrell, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from November 2007 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In that decision, the RO, in pertinent part, denied service connection for a mental condition, but granted service connection for treatment purposes only, for adjustment disorder with depressed mood and dysthymia under 38 U.S.C. Chapter 17; and denied increased rating claims for left index finger avulsion laceration and median nerve disability. In January 2015, the Board remanded the case for additional development, including a new VA examination. The Veteran failed to attend that examination. In May 2017, the Board denied the Veteran's increased rating claims for left index finger avulsion laceration and median nerve disability, and again remanded the service connection claim for additional development, and to again afford the Veteran an additional VA mental health examination. A June 2017 examination was scheduled, but the Veteran failed to attend that examination as well. The RO readjudicated the Veteran's claim and issued a Supplemental Statement of the Case (SSOC) in November 2017. The matter now returns to the Board for further appellate consideration. FINDING OF FACT There is no competent evidence of a nexus between the Veteran's acquired psychiatric disorder and his military service. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.655 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Here, the VCAA duty to notify was satisfied by way of a pre-adjudicatory letter the RO sent to the Veteran in October 2009. This letter informed the Veteran of the evidence required to substantiate the claim and of the respective responsibilities in obtaining this supporting evidence, including advising how disability ratings and effective dates are assigned. The Veteran has received all required notice concerning this claim. VA also met its duty to assist the Veteran in the development of the claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran was afforded a VA mental health examination in January 2010. In the Veteran's October 2014 appellant's brief, the representative asserted that the examination was inadequate. In January 2015, the Board determined that a new VA examination and opinion were needed, in part, because it was not clear that the Veteran had a current psychiatric disability or whether any current disability was related to his military service. Thus, the Board remanded the claim for a new VA examination and opinion. Although the Veteran failed to attend the examination, the Veteran's representative asserted in the March 2017 appellant's brief that the Veteran was unable to attend, and requested that a new examination be provided. Expressing some doubt as to whether the Veteran was notified of the 2015 examination appointment, the Board, in its May 2017 remand, directed that the Veteran be afforded a new VA examination. In VA's May 2017 letter, the Veteran was notified that he would be scheduled for an examination, and that failure to appear for examination could adversely impact his claim. Nevertheless, the Veteran, again, failed to report for the VA examination. Neither the Veteran nor his representative has asserted that the Veteran did not receive notice of the scheduled examination. In the absence of clear evidence to the contrary, the law presumes the regularity of the administrative process. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (citing Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992)). Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, the claim shall be rated based on the evidence of record. See 38 C.F.R. § 3.655(b). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, or death of an immediate family member. See 38 C.F.R. § 3.655(a). The Board finds that neither the Veteran nor his representative have provided good cause, and will therefore decide the Veteran's claim on the evidence of record. The Board emphasizes that the duty to assist and provide the Veteran with a VA examination is a two-way street, and due to his failure to attend the scheduled VA examination or provide a date for which he is able to attend a VA examination, there is no further duty to schedule any additional VA examinations relating to this claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board concludes there was substantial compliance with the May 2017 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran's claims file contains his service treatment records (STRs) and post-service VA medical records. Pursuant to the Board's May 2017 remand directives, the Veteran was notified by letter dated May 2017 that he could submit additional evidence in support of his claim; however, no response was received by the Veteran. Additional VA treatment records were obtained by the RO and associated with the claims file. A VA examination was scheduled for June 2017, but the Veteran failed to attend. VA readjudicated the claim based on the evidence in the record as reflected in the November 2017 SSOC. Thus, VA substantially complied with the May 2017 remand directives. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Neither the Veteran nor his representative has identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. The Veteran has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (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, 307 (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, 1377 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49, 53 (1990). Analysis The Veteran asserts that he is currently diagnosed with depression, which had its onset during active duty service. See Veteran's Application for Compensation and/or Pension (VA Form 21-526) received October 15, 2009 at page 5. He further asserts, through his representative, that his involuntary separation from service arising from substance abuse was unfair and is partially responsible for his anger issues that fueled his desire for substance abuse, which led to his depression. Appellant's Brief dated December 28, 2017 at page 2. Turning to the Veteran's STRs, the Board finds no references to complaints or treatment of depression or psychiatric disorders during service. The Veteran's entrance medical examinations dated September and December 2007, reflect that the Veteran denied depression or excessive worry, and the examiner recorded no psychiatric or emotional problems, noting that the Veteran's psychiatric health was normal. STRs dated September 2009 reflect that the Veteran's medical issues included ongoing problems from an in-service left finger laceration, alcohol abuse and alcoholism, with a diagnosis of alcohol dependence. A relapse was noted in September 2009 following substance abuse counseling, and a notation reflects that the Veteran was processed for separation from the service. Months after service separation, the Veteran underwent a January 2010 VA examination by a VA clinical psychologist. The Veteran denied psychiatric or psychological treatment since discharge from service. The VA examiner considered the Veteran's subjective history of pre-service use of antidepressant medication following the break-up of a romantic relationship, and discontinuance of the medication upon recovery prior to service. The Veteran reported being in a bad mood over finding himself back home, with a sense of hopelessness or helplessness, which he described as being "like I am stuck." The examiner noted that the Veteran essentially denied most depressive symptoms and significant anxiety symptoms, and pointed out that the "small number" of mild depressive symptoms seemed reactive to the Veteran's disappointment over current circumstances, with his involuntary separation from the Navy seemingly a significant part of this dissatisfaction. The examiner stated that the Veteran's history of treatment for apparently reactive depression prior to service suggests some predisposition to depression in reaction to stressors preceding his military service. The examiner diagnosed adjustment disorder with depressed mood, and likely dysthymia, concluding that no evidence was obtained relating depression to either the Veteran's alcohol abuse, treatment for alcohol abuse during service, or to an in-service finger injury. Following the above January 2010 VA psychiatric examination, the Veteran was seen in June 2010 at the Mason City VA community based outpatient clinic (CBOC) as a new patient. The following was reported in an associated VA nursing note: [The Veteran] states he has no complaints or concerns today. He does state that he was on an antidepressant when he first got out of the military as his parents felt he should be on something. He states he does not take it as he is fine. In the 2015 remand, the Board found the evidence of record insufficient to decide the claim. In this regard, the Board noted that review of the claims folder did not reflect that the Veteran had received any psychiatric treatment during the appeal period. The Board also expressed concern that based on the June 2010 VA nursing note, that the psychiatric disorder, or symptoms thereof for which the Veteran was diagnosed in January 2010, were no longer present. For those reasons, the Board determined that an additional VA compensation examination was needed to clarify the presence of a current psychiatric disorder and its etiology. As reflected above, the Veteran did not report to the VA examinations scheduled for him. Again, a VA examination was needed to help ascertain the etiology of any current psychiatric diagnosis. The Board acknowledges that, as recent as October 2017, VA treatment records reflect a diagnosis of major depressive disorder and amphetamine use disorder. Still however, there is no competent, objective medical evidence of record that establishes a nexus between the Veteran's current post-service psychiatric disorder and service. Although as a layperson, the Veteran is competent to report any psychiatric symptoms that he experiences, he is not competent to diagnose a psychiatric disability because a psychiatric diagnosis requires medical expertise and falls outside the realm of common knowledge of a lay person. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"). The DSM-IV cautions that the "proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills." The "purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose" various mental disorders. Consequently, his purported opinion that a current psychiatric diagnosis is related to service is not competent evidence and is therefore of no probative value to establish a nexus. The Board emphasizes that the medical evidence that would have been obtained from the scheduled examinations could have helped to substantiate this claim, but the Veteran failed to report. In the absence of competent and probative evidence of a nexus between the current diagnosis and service, the preponderance of the evidence is against the claim for service connection for a psychiatric disorder. 38 U.S.C. § 5107; see also Gilbert, 1 Vet. App. 49, 53. The claim must be denied. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs