Citation Nr: 0725698 Decision Date: 08/17/07 Archive Date: 08/22/07 DOCKET NO. 06-05 815 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas THE ISSUE Entitlement to service connection for a claimed innocently acquired psychiatric disorder, to include depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Fitch, Associate Counsel INTRODUCTION The veteran had active military service from April 1978 to August 1983, and again from January 1984 to January 1987. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2004 rating decision of the RO. The veteran's claims file was subsequently transferred to the RO in Little Rock, Arkansas. In January 2007, the veteran, accompanied by his representative, testified at a hearing before the undersigned Veterans Law Judge at the local regional office. The veteran submitted evidence at the hearing along with a signed statement waiving initial consideration of the evidence by the RO. FINDINGS OF FACT 1. The veteran is not shown to have manifested complaints or findings of an innocently acquired psychiatric disorder in service or for many years thereafter. 2. The veteran currently is not shown to have an innocently acquired psychiatric disorder, to include depression, due to any event or incident of his period of active service. CONCLUSION OF LAW The veteran does have an innocently acquired psychiatric disability, to include any manifested by depression, due to disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. Furthermore, in compliance with 38 C.F.R. § 3.159(b), the notification should include the request that the claimant provide any evidence in the claimant's possession that pertains to the claim. By way of letters dated in March and June 2004, May 2005, and March 2006, the veteran was furnished notice of the type of evidence needed in order to substantiate his claim, including notice that a disability rating and effective date will be assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran was also generally informed that he should send to VA evidence in his possession that pertains to the claim and advised of the basic law and regulations governing the claim, the cumulative information and evidence previously provided to VA (or obtained by VA on the veteran's behalf), and provided the basis for the decisions regarding the claim. The veteran was provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). The Board also finds that VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002). In particular, the information and evidence associated with the claims file consists of the veteran's service medical records for his second period of service, post-service treatment records and reports, and statements submitted by the veteran and his representative in support of the claim. In this regard, the Board notes that the veteran's service medical records from the veteran's first period of service could not be located by the RO. In addition, a search for further records from the National Personnel Records Center (NPRC) also revealed that additional records could not be located. Hence, the RO's diligent efforts to obtain additional service records proved to be futile. The Board recognizes its heightened duty to explain its findings and conclusions and to consider benefit of the doubt and corroborative testimony such as buddy statements in cases where records are unavailable. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Based on the foregoing, the Board concludes that there is no identified evidence that has not been accounted for with respect to the veteran's claim and that, under the circumstances of this case, VA has satisfied its duty to assist the veteran. Accordingly, further development and further expending of VA's resources is not warranted. See 38 U.S.C.A. § 5103A. II. Service connection for an acquired psychiatric disorder, to include depression. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). The regulations also provide that service connection may 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). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from service. 38 C.F.R. § 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In this case, the veteran has been diagnosed with major depression and depression. Although the Board has reviewed the lay and medical evidence in detail, the Board will focus its discussion on evidence that concerns whether an innocently acquired psychiatric condition is related to a disease or injury in service. Here, the Board notes that the veteran's service records do not record any diagnosis or treatment for any psychiatric condition in service. The veteran's post-service records, do not indicate any diagnosis or treatment for an innocently acquired psychiatric condition within one year of service. After service, the medical records show that the veteran has been diagnosed with and treated for various psychiatric and related maladies, to include cocaine and alcohol dependence, cocaine and alcohol induced mood disorder, depression disorder with suicidal ideation, major depression and poly substance abuse. None of these treatment records, however, find or state an opinion indicating that any of the veteran's psychiatric conditions had their onset in service or due to an event or incident of his service. Based on the foregoing, the Board finds that the evidence of record preponderates against a finding that any currently demonstrated innocently acquired psychiatric disability, to include depression, is the result of his service. There is no indication in the veteran's service records that he had any psychiatric condition in service, and the veteran's medical records do not indicate such a condition within one year of service. While the veteran's post-service records indicate various disorders, to include cocaine and alcohol dependence, cocaine and alcohol induced mood disorder, depression disorder with suicidal ideation, major depression, and poly substance abuse, these records only serve to document the onset of these condition many years after service. In this regard, the Board notes that the veteran has submitted several buddy statements from family members and friends, as well as statements from the veteran, indicating that the veteran became depressed in service as a result of being passed over for a promotion. These statements note the veteran's general decline during and after service. The Board notes that, as lay persons, however, the veteran and his family and friends are not competent to establish a medical diagnosis or provide an opinion as to medical etiology; such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board also notes that the veteran has not been afforded a VA examination in order to address whether the veteran has an acquired psychiatric disorder and, if so, whether such disability is related to his service. Under VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent, and the veteran is required to show some causal connection between his disability and his military service. Wells v. Principi, 326 F.3d 1381, 1338 (Fed. Cir. 2003). A disability alone is not enough. Id. In this case, the record contains a diagnosis of depression, among other conditions, but there is no medical evidence indicating that such conditions are related to the veteran's active duty service. 38 C.F.R. § 3.159(c)(4) (2002); see also Wells v. Principi, 326 F.3d 1381 (2003); Charles v. Principi, 16 Vet. App. 375 (2002). The Board therefore concludes that a VA examination of the veteran is not necessary in this case. In this case, the medical evidence is against a finding that the veteran has an acquired psychiatric disorder, to include depression, that is related to or had its onset in service. Service connection for this condition must therefore be denied. ORDER Service connection for an innocent acquired psychiatric disorder, to include depression, is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs