Citation Nr: 21014946 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-58 996A DATE: March 16, 2021 ORDER Entitlement to service connection for a psychiatric disorder (claimed as emotional problems) is denied. REMANDED The issue of entitlement to compensation under 38 U.S.C. § 1151 for right eye damage based upon VA medical treatment featuring a June 2009 cataract removal surgery is remanded. FINDING OF FACT The medical evidence of record indicates that the Veteran does not have a current qualifying diagnosis of a psychiatric disorder for VA compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1953 to November 1953. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned in December 2020. A transcript of the hearing is of record. The July 2015 rating decision and the November 2017 statement of the case (SOC) in this matter adjudicated the psychiatric disorder issue as a claim of entitlement to “service connection,” and not as a claim for compensation under 38 U.S.C. § 1151. Claims for service connection are separate and distinct from claims for compensation under 38 U.S.C. § 1151. Anderson v. Principi, 18 Vet. App. 371 (2004) (“There is a legal distinction between filing a claim for service connection for a disability pursuant to 38 U.S.C. § 1110 and a claim for compensation derived from a grant of compensation pursuant to 38 U.S.C. § 1151.”); Trafter v. Shinseki, 26 Vet. App. 267, 285 (2013) (Hagel, L., concurring) (“This Court’s case law has consistently distinguished claims made pursuant to section 1151 and claims for disability compensation pursuant to section 1110.”). Some of the Veteran’s contentions regarding the claimed emotional problems / psychiatric disorder suggest that he intended a claim for compensation under 38 U.S.C. § 1151. However, the Board’s jurisdiction at this time is over a claim of entitlement to service connection for emotional problems / psychiatric disorder, and that is the issue resolved with a Board decision at this time. (The only issue currently within the Board’s jurisdiction that features a claim for compensation under 38 U.S.C. § 1151 is the issue concerning a right eye disability, which is addressed in the remand section of this decision, below.) To any extent that the Veteran may still wish to pursue a claim for compensation under 38 U.S.C. § 1151 for emotional problems / psychiatric disorder, the matter has not been adjudicated by the Agency of Original Jurisdiction (AOJ) and is not on appeal before the Board. As such, it would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board does not have jurisdiction over the claim for compensation under 38 U.S.C. § 1151 for emotional problems / psychiatric disorder, and it is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such form. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (continuing to provide for Board referral of unadjudicated claims). 1. Entitlement to service connection for a psychiatric disorder (claimed as emotional problems) is denied. The Veteran’s claim of entitlement to service connection for a psychiatric disorder is currently before the Board on appeal. Service connection may be granted for disability resulting from personal injury suffered or disease contracted during active military service, or for aggravation of a pre-existing injury suffered, or disease contracted, during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service; 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, 1166-67 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). The existence of a current disability is the cornerstone of a claim for VA disability compensation and a DSM-5 diagnosis is needed in order for an acquired psychiatric claim to succeed. See Martinez-Boden v. Wilkie, 32 Vet. App. 393 (2020) (holding that the Saunders definition of a disability is constrained, and the Court lacks the jurisdiction to review, the Secretary’s specific determination of what constitutes a disability in the Rating Schedule); Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Absent a current disability, there can be no entitlement to service connection. Here, the evidence that the Board has considered simply does not indicate that the Veteran currently has an acquired psychiatric disorder. The Board finds no evidence from the pendency of the claim on appeal that indicates a qualifying diagnosis of a psychiatric disorder. Indeed, the July 2015 VA mental health examination report prepared to inform adjudication of this claim shows that the examining VA psychologist found: “The vet does not meet criteria for a psychiatric disorder according to DSM 5,” and determined that “No,” the Veteran did -not- “have [n]or has he[] ever been diagnosed with a mental disorder.” During the Veteran’s December 2020 Board hearing, he stated that he had only ever been seen for mental health at a VA facility “once,” and clarified that this was when he attended the VA examination in connection with this claim on appeal. The Veteran’s son clarified that “my dad has never been in the VA for anything mental health related.” The July 2015 VA examination report shows that the Veteran reported that he “has never engaged in mental health treatment and is not taking any psychotropic medication.” The Board finds that the preponderance of the evidence weighs against finding that the Veteran has a qualifying current diagnosis of a psychiatric disorder. Therefore, given the evidence of record, the Board is unable to award entitlement to service connection for a psychiatric disorder at this time. REASONS FOR REMAND 1. The issue of entitlement to compensation under 38 U.S.C. § 1151 for right eye damage based upon VA medical treatment featuring a June 2009 cataract removal surgery is remanded. During the Veteran’s December 2020 Board hearing, discussion touched upon the fact that the most recent of the Veteran’s VA medical records currently available for review in the claims-file are from 2017. The Veteran was asked if he has received pertinent treatment at VA since that time, and he indicated that he had done so “A couple times.” In the course of further discussion during the hearing, the Veteran’s representative was asked if the Board should remand this case to have updated VA medical records added to the claims-file, and the Veteran’s representative answered “I would -- really like to see if he has any[]more treatment records there at the hospital.” The representative stated that “I need to get the records -- last records treated from Hines….” The representative asked the Veteran: “and you said when you go to the doctor he knows about your -- the problem that you had when you had surgery at the VA?” The Veteran replied: “Yes.” The Veteran’s representative had previously stated “Why don’t we remand to get those records because I don’t know how difficult it would be for him to get -- to get those.” The record was held open for 90 days following the hearing to provide the Veteran an opportunity to submit additional evidence to be added to the claims-file. However, the claims-file still lacks the referenced updated VA medical records. The identified pertinent VA medical records not currently of record are within VA’s constructive possession, and are considered potentially relevant to the appeal. A remand is required to allow VA to obtain them. Such records must be obtained and made available for review in the claims-file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board additionally notes that the AOJ shall now have the opportunity to obtain the complete consent form utilized prior to the June 25, 2009, right eye cataract surgery procedure at issue in this appeal. This evidence is important to the claim of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151. See 38 C.F.R. § 3.361(d)(1) (The criteria for establishing entitlement to 38 U.S.C. § 1151 benefits include a finding regarding informed consent.). The Board observes that although June 2009 VA medical reports, as well as treatment records dated prior and subsequent to the procedure, are of record, the full informed consent form has not been uploaded to the Veteran’s electronic claims file. The June 2009 VA medical reports include a notation indicating that the Veteran’s informed consent had been obtained and that “The full consent document can be accessed through Vista Imaging.” Thus, the Board is on notice that the full informed consent form exists, it is relevant to this claim, and efforts to obtain that record should be made on remand. 38 U.S.C. § 5103A. The matter is REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). In particular, ensure that the claims-file contains the Veteran’s updated set of pertinent VA treatment records from Edward Hines, Jr. VA Hospital in Chicago, Illinois. 2. Obtain and associate with the Veteran’s electronic claims-file a copy of the Veteran’s full informed consent form(s) for his June 25, 2009, right eye cataract surgery. A VA medical record in the claims-file dated June 25, 2009, notes that the Veteran’s informed consent had been obtained and “can be accessed through Vista Imaging.” The Board reminds the AOJ that the Board does not have access to Vista Imaging, so any documentation of the full informed consent form must be obtained/printed from VistA and uploaded to the Veteran’s virtual benefits file in VBMS. If the requested consent form(s) cannot be obtained and associated with the claims-file for review, documentation to this effect must be clearly noted in the Veteran’s electronic claims file. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barone, 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.