Citation Nr: 21069733 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-20 027A DATE: November 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current diagnosis of an acquired psychiatric disorder, and the record does not contain a recent diagnosis of disability prior to the Veteran's filing of a claim. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to September 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Wichita, Kansas. The Veteran filed a timely VA Form 9, substantive appeal to the Board and requested a videoconference hearing with a member of the Board. The Board notified the Veteran that a videoconference hearing was scheduled with a Veterans Law Judge on October 26, 2020 at VA Central Office. See Correspondence, September 21, 2020. The Veteran contacted the RO and indicated he did not wish to pursue an appeal for entitlement to service connection. Additionally, in October 2020 correspondence, the Veteran withdrew his request for a hearing with a Veterans Law Judge. See Correspondence, October 22, 2020; see also Notification Letter, November 3, 2020. Furthermore, the Veteran later indicated that he continued to pursue his claim for entitlement to service connection for an acquired psychiatric disorder, but could not attend his hearing and wanted to withdraw his hearing request. See VA Form 27-0820 Report of General Information, November 23, 2020. Thus, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (d). Service Connection Acquired Psychiatric Disorder The Veteran generally asserts that he has an acquired psychiatric disorder as a result of his active service. Specifically, the Veteran seems to assert that he has an acquired psychiatric disorder that is as a result of an unrelated arrest and/or prison sentence executed by the State of Kansas that he characterizes as slavery. See e.g. VA Form 21-4138 Statement in Support of Claim, July 25, 2017; see also VA Form 21-526b, March 17, 2014. Additionally, the Veteran seems to assert that his acquired psychiatric disorder is as a result of an unrelated eminent domain dispute with the Department of Justice. See e.g. Correspondence, March 7, 2015. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant 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. Turning to the evidence, service treatment records and post service treatment records are silent for complaints of, treatment for, or diagnosis of an acquired psychiatric disorder. The Board notes that the Veteran seems to have participated in mental health peer support groups through VA but a diagnosis was not rendered. See e.g. VA treatment record, February 13, 2020. No post-service clinical records have been submitted related to any such diagnosis for an acquired psychiatric disorder. The Board notes that the Veteran has not been afforded a VA examination addressing his claimed acquired psychiatric disorder. However, the Board finds that such an examination is not required. In this regard, in determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The service treatment records are otherwise negative for complaints, treatments or diagnoses related to an acquired psychiatric disorder. Further, the evidence does not indicate that the Veteran has sought treatment for an acquired psychiatric disorder at any time. See McLendon v. Nicholson, supra. Rather, the Veteran merely submitted a claim for acquired psychiatric disorder, without any elaboration of how this claimed disability was related to his service. In this regard, while the Veteran himself has advanced such a theory, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Court has held that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Notably, the Veteran asserts he has an acquired psychiatric disorder that is as a result of events that are wholly unrelated to his period of active service. Rather, the Veteran has consistently reported his acquired psychiatric disorder is as a result of an arrest and illegal imprisonment, that rose to slavery, executed by the State of Kansas and/or an eminent domain dispute with regards to his property with the Department of Justice. Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim. Moreover, the Veteran does not report that he had an acquired psychiatric disorder in or since service, including within one year of service. In this regard, the Board finds it telling that he filed his claim for entitlement to service connection nearly 40 years after separation from active service. In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of an acquired psychiatric disorder at any time during the appeal period, and there is no probative evidence of recent diagnosis of such disorder prior to the Veteran's claim. McClain v. Nicholson, supra; Romanowsky v. Shinseki, supra. In addition, taking into consideration the Veteran's mental health peer support treatment record from February 2020, the Board also finds that there is no evidence or allegation that any currently present acquired psychiatric disorder is etiologically related to his active service. To that end, the record contains no evidence or allegation that any acquired psychiatric disorder is as a result of an injury, in-service event, or illness that occurred during active service. Rather, as noted above, the Veteran has consistently asserted his acquired psychiatric disorder is as a result of events that occurred wholly unrelated to his active service. The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability and/or an opinion as to the etiology of such diagnosis is not capable of lay observation, such as that of arthritis or other joint impairment, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). In the instant case, there is no suggestion that the Veteran has developed an expertise in the diagnosis of an acquired psychiatric disorder. Therefore, as he does not have the appropriate medical training and expertise to competently diagnose chronic fatigue syndrome, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Woehlaert v. Nicholson, supra. To the extent the Veteran believes that any currently present acquired psychiatric disorder is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, a diagnosis of and etiology of an acquired psychiatric disorder can have many causes and medical expertise is needed to determine the etiology of the disorder. Accordingly, the Veteran's opinion as to the diagnosis and/or etiology of an acquired psychiatric disorder is not competent medical evidence. Upon review of the evidence, the Board finds the preponderance of the evidence is against the claim. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110, 1131. Thus, where, as here, the probative evidence indicates that the Veteran does not have current diagnosis of an acquired psychiatric disorder for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.