Citation Nr: 1807730 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-16 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for acquired psychiatric disability, other than post-traumatic stress disorder (PTSD) and major depressive disorder (MDD), and to include dissociative disorder (DD). REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1999 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In November 2015 during the period on appeal, the Board granted the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder effective October 2009. The Veteran is assigned a 100 percent evaluation for these conditions. In addition, the Board notes that in the November 2015 remand, the Board expanded the scope of the service connection claim to any psychiatric disability other than PTSD and MDD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that a claim is not limited to the diagnosis or disability identified by the Veteran. Therefore, the issue of entitlement to service connection for a psychiatric disability, other than PTSD and MDD, remains on appeal and the issue was remanded for further development. The Board finds that there has been substantial compliance with the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). The case is now again before the Board for appellate review. The Veteran was scheduled for a videoconference hearing before the Board for the present appeal in September 2014, but she failed to appear. In October 2017, the Veteran's representative submitted a Hearing Memorandum that waived RO consideration of any newly submitted evidence and indicated no further presentation to submit at this time. The Board presumes the Hearing Memorandum was submitted with the Veteran's consent and deems the hearing request withdrawn. See 38 C.F.R. § 20.704(e) (2015). FINDING OF FACT The Veteran does not have a currently diagnosed acquired psychiatric disability other than PTSD and MMD. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, other than PTSD and MMD and to include DD have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.14 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and the Veteran not either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. Regarding VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), and VA treatment records, have been obtained. Additionally, the Veteran accepted the offer to testify at a hearing before the Board but failed to appear. In October 2017, her representative notified the Board that they did not have any further presentation to submit and requested expeditious Board consideration. Thus, withdrawing the request to testify. The Veteran was also provided VA examinations and the Veteran has not objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the appellant in adjudicating this appeal. Service Connection The Veteran is seeking service connection for DD. In addition, she contends that her DD has been caused or aggravated by her service connected MDD and or PTSD. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a secondary basis when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence, generally medical, establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that competent, credible, and probative medical evidence establishes that the Veteran does not have a current diagnosis of dissociative disorder (DD). In a May 2011 addendum opinion to a June 2010 PTSD examination, the examiner did not fully address whether it is at least as likely as not that the Veteran has a dissociative disorder as the result of her active service. The Veteran's claim was then remanded for additional development including a VA examination and opinion. In December 2015, the Veteran underwent a VA examination specifically addressing the Veteran's claim for a psychiatric condition other than PTSD and MDD to include DD. The examiner interviewed the Veteran and reviewed the claim's file and found that there was no previous or current evidence of any mental health condition other than (service -connected) PTSD and MDD. The examiner reported that the Veteran is not currently receiving mental health treatment other than taking amitriptyline. The examiner determined that the Veteran's symptoms were consistent with depressed mood. The Veteran reported finding bruises on her body that she could not explain, and the examiner suggested that the Veteran might not want to drive. The examiner then noted that the Veteran minimized the extent of any possible dissociative issues. The examiner reported that the Veteran did not report other symptoms suggestive of dissociative experiences. Furthermore, upon review of the VA treatment record, the records consistently indicate the diagnosis was rule out DD. However, the VA treatment records consistently show diagnosis for PTSD and depression. The 2015 examiner specifically noted that the Veteran has never had a mental illness other than PTSD and MDD. It appears that the most recent 2015 VA examiner ruled out DD as a prior or current diagnosis for the Veteran. Thus, it is not necessary for the examiner to explain how DD resolved as directed by the November 2015 remand. In support of her claim, the Veteran's representative submitted a Mayo Clinic Staff, Dissociative Disorders, Disease and Conditions article. It is one page of a search Mayo Clinic internet printout regarding DD that list six DD symptoms and describes two of the symptoms on the list. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (observing that medical articles or treatises can provide important support for a claim if combined with an opinion of a medical professional, or when discussing general medical relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible argument for causality based upon objective facts). Here, neither Veteran nor representative submitted an opinion of a medical professional that supports the Veteran's claim or the relationship of the listed symptoms to the Veteran's claim. The 2015 VA examiner found that the Veteran did not have a current or prior DD diagnosis and determined that the Veteran's had depressed mood symptoms. The Board notes that the Veteran is service connected for major depressive disorder, which already contemplates such symptomatology. As such, a separate award of service connection for the same symptoms under a different diagnosis, even if present, would constitute pyramiding and would be prohibited under 38 C.F.R. § 4.14. Upon review of that evidence, the Board finds the 2015 VA examination more probative and persuasive than the Veteran's submission. The VA examination is based upon a complete review of the Veteran's claims file, a current examination of the Veteran, and supported by rationale. The Veteran's article on DD is not supported with an opinion specific to the Veteran's medical history and appears to be missing pages that describe the rest of the symptoms on the list. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2015 VA examiner's opinion. Regarding the Veteran's claim for aggravation and secondary service connection, the most recent 2015 VA examination determined (as discussed above) that there was no evidence that the Veteran ever had any mental health conditions other than her service connected PTSD and MDD. Thus, the Board finds that there is no need to address issues of aggravation or secondary causation. The Board finds that service connection is not warranted at this time for this claimed disorder. First, the evidence of record does not contain a current diagnosis for a psychiatric disability, other than PTSD and MDD. To that end, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). As such, without a current diagnosis of current disability, the Veteran lacks the evidence necessary to substantiate the claim for service connection. Insofar as the Veteran and her representative is asserting that her claimed disorder was incurred during service or related to a service-connected disability, laypersons are considered competent to provide a medical diagnosis only if (1) the condition is simple to identify (such as a broken leg), (2) he or she is reporting a contemporaneous medical diagnosis, or (3) his or her description of symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran is competent to report that she experienced symptoms of a psychiatric condition, but she has not demonstrated the medical competence to make a correlation between a service-connected disability and any other disorder, and there is simply no diagnosis for her claimed disorder. As such, service and post-service medical records provide evidence against this claim. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran's claim of service connection for acquired psychiatric disability, other than post-traumatic stress disorder and major depressive disorder is denied. ORDER Service connection for a psychiatric disability, other than PTSD and major depressive disorder is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs