Citation Nr: 21070660 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 21-00 205 DATE: November 24, 2021 ORDER Entitlement to service connection for an acquired psychiatric condition, claimed as a nervous condition, is denied. FINDING OF FACT The preponderance of the evidence is against finding an in-service injury or disease related to an acquired psychiatric condition, claimed as a nervous condition. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric condition, claimed as a nervous condition, have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1964 to November 1966. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated January 2018 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In August 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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 granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for an acquired psychiatric condition, claimed as a nervous condition The Veteran claims entitlement to service connection for an acquired psychiatric condition, claimed as a nervous condition. Following a thorough review of the Veteran's medical records, the Board finds that he is not entitled to an award of service connection. As an initial matter, the Board finds that the Veteran has satisfied the first element of service connection, a current disability. A review of the Veteran's medical treatment records show the Veteran has depressive disorder. See Medical Treatment Record dated June 2016. Therefore, the Board finds that the Veteran has satisfied the first prong of service connection, the existence of a current disability. With regards to the second prong of service connection: evidence of an in-service disease or injury, the Veteran has made no contentions about his acquired psychiatric condition. In its August 2021 decision, the Board remanded the Veteran's claim, as a review of the record showed no indication of what the Veteran's theory of entitlement was based upon. Thus, the Veteran was asked to clarify his theory of entitlement in a letter dated August 17, 2021. However, he has not responded or submitted any lay statements or contentions regarding his theory of entitlement. The United States Court of Appeals for Veterans Claims (CAVC) has held, "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Board remanded the claim in August 2021, in part, to afford the Veteran an opportunity to submit any lay statements and has no reason to expect that the outcome would be any different if it were to remand for the same action again. To the extent possible, VA has attempted to assist the appellant. Accordingly, no further attempts to assist the appellant are warranted. See Olson v. Principi, 3 Vet. App. 480 (1992). Thus, the Board will proceed with adjudication for the issue of entitlement to service connection for a psychiatric condition, claimed as a nervous condition, based on the evidence of record. The Veteran's service treatment records (STRs) contain no complaints, treatment, or diagnosis of a psychiatric disability. In both his November 1963 Entrance Examination and an August 1964 Annual Examination, the examiners marked "no" when asked if the Veteran had depression or excessive worry. Here, the Board is not basing its conclusions solely on the lack of a psychiatric condition shown while the Veteran was in service, but by viewing it in the context of the entire record. The absence of evidence cannot be substantive negative evidence without a proper foundation to demonstrate that such silence has a tendency to prove or disprove a relevant fact. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015). "The absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded." Id. As noted above, the Veteran has not made any lay statements in relation to his claim for service connection for a psychiatric condition. Furthermore, any reports of symptoms while in service would be contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to a psychiatric condition. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803 (7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the Veteran's STRs list numerous medical complaints, but nothing related to the currently claimed disability. Based upon the language and context of the STRs, the Board finds that the Veteran was reporting all the disabilities/medical conditions/symptoms that he was experiencing at that time. Here, the fact that the Veteran sought treatment for other symptoms while in service, but not for a psychiatric condition, weighs against the idea that the Veteran had psychiatric symptoms while in service. Therefore, his failure to report any complaints at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs any recollection to the contrary. A review of the Veteran's medical treatment records following service show 1995, nearly 30 years post separation, as the earliest date of complaints of or treatment for his psychiatric condition. As the Veteran has not asserted any in-service disease or injury, and the record reveals no in-service psychiatric complaint, disease, injury, or treatment, the Board finds the weight of the probative evidence of record is against a finding of an in-service disease or injury to establish the second element of service connection. Thus, the claim fails. The Board acknowledges that the Veteran has not been afforded a VA examination for his claimed psychiatric disability. However, the Board does not find that the McLendon factors are met to trigger the need for an examination in this case. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). McLendon requires evidence of injury or disease in service and the record contains no such evidence. Thus, the Board finds that a VA examination is not warranted. (Continued on the next page) Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.