Citation Nr: 1813178	
Decision Date: 03/01/18    Archive Date: 03/13/18

DOCKET NO.  13-34 234A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a psychiatric disorder.


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

K.C. Spragins, Associate Counsel







INTRODUCTION

The Veteran had active service in the United States Army from June 1943 to January 1946.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The RO in Winston-Salem, North Carolina certified the case to the Board on appeal.

The Board notes that the Veteran requested a Board hearing in his November 2013 VA Form 9.  The Veteran was initially scheduled for such a hearing in March 2016.  However, he did not attend the hearing.  Although the hearing was later rescheduled for July 2016, the Veteran cancelled the hearing.  Thus, there are no outstanding Board hearing requests.

In decisions dated in August 2016 and July 2017, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication.  The case has since been returned to the Board for appellate review. The Board finds that the RO substantially complied with prior remand directives, to the extent possible, and no further action in this regard is warranted.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2).







FINDING OF FACT

There is no current diagnosis of a psychiatric disorder.


CONCLUSION OF LAW

The criteria to establish entitlement to service connection for a psychiatric disorder have not been met.  38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Law and Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2016).  To establish a right to compensation for a present disability, a Veteran must show:  (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.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009).  The absence of any one element will result in denial of service connection.  Coburn v. Nicholson, 19 Vet. App. 247, 431 (2006).  
Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-V.  See 79 Fed. Reg. 45, 094 (August 4, 2014).  VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule does not apply to claims that have been certified for appeal to the Board or are pending before the Board on appeal before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorder and definition of Psychosis for VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  As the RO certified the Veteran's appeal to the Board in November 2014, the amended 38 C.F.R. § 3.384 conforming to the DSM-V is applicable in the current case.

Initially, the Board notes that a review of the Veteran's service treatment records (STRs) does not reveal any complaints, treatment, or diagnoses related to a psychiatric disorder.

Next the Board will address whether the Veteran has a current psychiatric disability. The post-service treatment records fail to reflect that the Veteran has received a psychiatric disorder diagnosis.  In May 2003, a record from New Hanover Regional Medical Center noted that a review of the Veteran's systems was negative for psychiatric findings.  Later in July 2006, a Duplin General Hospital record stated in a form that the Veteran was alert and oriented times three with a normal mood/affect.  In August 2008, a record from Hanover Medical Specialists reported that a review of the Veteran's systems showed that anxiety, depression, and insomnia were not present.  A subsequent September 2010 record from Duplin General Hospital noted in a form that the Veteran had normal orientation, speech/cognition, and mood/affect.  Available choices for psychiatric symptoms such as depressed affect/mood were not marked as present.  In August 2011, an examination of the Veteran's psychiatric functioning conducted by Wilmington Cardiology revealed that he was alert and oriented times three with an appropriate affect and demeanor.  There was no anxiety, depression, feelings of stress, personality change, difficulty concentrating, or sleep disturbance.  In March 2012, a record from Dr. R. noted that the Veteran may have a mild history of depression.  She stated that he may consider an antidepressant when he returned.

In his September 2012 notice of disagreement, the Veteran reported receiving current treatment for symptoms of his depression, including irritability and sleeplessness.  The Veteran later stated in his December 2013 VA Form 9 that his nervous problems began in 1943 when he was drafted into the Army.  For many years after service, he experienced a nervous stomach.  He also had memories and nightmares associated with World War II.  The Veteran described experiencing survivor's guilt, and he reported self-medicating to cope with the memories.  The Veteran also indicated that his primary care doctor started treating him for depression many years after he returned home from service.

The Veteran underwent a VA examination related to his claim in September 2017.  However, the examiner determined that the Veteran did not meet the diagnostic criteria for a psychiatric disorder under the DSM V.  Despite the Veteran's earlier statements describing a history of certain psychiatric symptoms, the examiner reported that the Veteran denied experiencing anxiety, depression, or a history for any other psychiatric disorder.  In addition, no symptoms of depression, anxiety, or insomnia were observed by the examiner.  The examiner also noted that the Veteran's medical records did not show treatment for a psychiatric disorder.

Although the Veteran has reported receiving treatment for depression, the Board notes that the treatment records associated with the claims file do not show evidence of such treatment.  As discussed above, the available treatment records are negative for psychiatric findings.  In the March 2012 record, Dr. R. speculated whether the Veteran had depression or needed an antidepressant, but Dr. R. did not document any actual diagnosis for depression or prescribe antidepressant medication at that time.  The Board also notes that medical opinions that are speculative, general, or inconclusive do not provide a sufficient basis upon which to decide a claim.  See, e.g., McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  Subsequent treatment records from Dr. R. dated in 2012 and 2013 also lack evidence of a psychiatric disorder diagnosis or prescription for antidepressant medication.  Notably, the Veteran informed the September 2017 VA examiner that he did not believe he had ever received medication for depression or anxiety.  The Veteran also reported that he had never met with a psychologist or psychiatrist, and he had never been hospitalized for psychiatric reasons.  

The July 2017 Board decision also instructed the AOJ to contact the Veteran to request that he identify, and provide any necessary authorization, to allow VA to obtain any outstanding treatment records related to his service connection claim for a psychiatric disorder.  A December 2017 Report of General Information reflects that the Veteran was provided with an opportunity to identify additional records, but he reported that there were no additional records; and he had no further information to submit to VA related to his claim.  While the Veteran is competent to report receiving psychiatric treatment or symptoms of depression or anxiety, the Board finds the September 2017 VA examiner's conclusion that the Veteran did not have psychiatric disorder to be more probative than the Veteran's statements suggesting he received a diagnosis of depression or his report of psychiatric symptoms as evidence of a diagnosis.  The examiner's determination was based on a review of the available treatment records, the Veteran's reported medical history, an examination of the Veteran, and the examiner's medical expertise.  In addition, the examiner's assessment is consistent with the other evidence of record.

Based on the foregoing, the evidence shows there has been no current diagnosis of a psychiatric disorder at any time during the appeal period.  The existence of a current disorder is a required element of a claim for VA disability compensation.  38 U.S.C. § 1110, 1131; Degmetich v. Brown, 104 F.2d 1328, 1332 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, service connection is not warranted.  38 C.F.R. § 3.303.

The Board acknowledges the Veteran's contention that he has a current psychiatric disorder.  However, the Board finds that the Veteran is not competent to provide a diagnosis for such a disorder.  Although it is error to categorically reject a lay person as competent to provide a diagnosis, not all questions of diagnosis are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a diagnosis depends on the facts of the particular case.  In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding.  Id.   

In that earlier decision, the Federal Circuit stated as follows:  "[l]ay 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). 

The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4.  Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. 

In the instant case, the question of the whether the Veteran has a current psychiatric disorder is not something that can be determined by mere observation.  Nor is this question simple.  While the Veteran is competent to report symptoms such as depression, the question of the cause of those symptoms is not an observable fact.  It requires clinical testing to assess and diagnose the underlying condition and training to make the appropriate interpretations and conclusions about what the testing demonstrates in conjunction with the symptoms reported to determine the cause.  Therefore, the Board finds that the Veteran's statements as to the etiology of his current complaints are not competent evidence of a diagnosis.  

Absent evidence of a current disability, the preponderance of the evidence is against the service connection claim for a psychiatric disorder.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, that doctrine is not applicable based on these facts.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  Accordingly, service connection is not warranted.


ORDER

Entitlement to service connection for a psychiatric disorder is denied.








____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs