Citation Nr: 0723756 Decision Date: 08/01/07 Archive Date: 08/15/07 DOCKET NO. 06-05 785 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for depression. REPRESENTATION Veteran represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The veteran served on active duty from August 1968 to August 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2005 rating decision of the St. Paul, Minnesota, VA Regional Office (RO). In connection with his appeal, the veteran testified before the undersigned Veterans Law Judge in Washington, D.C., via videoconference in April 2007. A transcript of the hearing has been associated with the claims file. The Board notes that at the hearing, the veteran's representative raised the issue of entitlement to service connection for post-traumatic stress disorder (PTSD). Transcript at 5-7 (2007). This issue is referred to the agency of original jurisdiction (AOJ). FINDING OF FACT Depression was not manifest in service and is not attributable to service. CONCLUSION OF LAW A depressive disorder was not incurred or aggravated in active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that on receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). The RO sent correspondence in July 2005, a rating decision in September 2005, a statement of the case in January 2006, and supplemental statements of the case in February 2006, April 2006, and August 2006. The July 2005 letter preceded the RO's initial adjudication in September 2005. The above documents discussed specific types of evidence, the applicable legal requirements, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA has made all efforts to notify and to assist the veteran with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the veteran's possession. The Board finds that any defect with regard to the timing or content of any of the notices sent prior to the RO's initial adjudication or even the final RO adjudication is harmless. The Board finds that even if there is any defect with regard to the timing or content of any of the notices sent prior to the RO's initial adjudication, that defect is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant has had a meaningful opportunity to participate effectively in the processing of the claim with RO adjudication after receipt of the required notice. VA effectively complied with all of the required elements under its duty to notify claimants prior to the last RO adjudication. The veteran has not demonstrated how any defective notice has prejudiced him in the essential fairness of the adjudication. There has been no prejudice to the veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Overton v. Nicholson, 20 Vet. App. 427 (2006); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine), on remand, 20 Vet. App. 537 (2006) (discussing Board's ability to consider "harmless error"); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd in part, Hartman v. Nicholson, __ F.3d __, No. 2006-7303, 2007 WL 1016989 (Fed. Cir. Apr. 5, 2007); cf. Locklear v. Nicholson, 20 Vet. App. 410, 415-16 (2006) (duty to notify does not extend in perpetuity or impose duty on VA to provide notice on receipt of every piece of evidence or information). Thus, VA satisfied its duty to notify the veteran. Also, all relevant, identified, and available evidence has been obtained, and VA has notified the veteran of any evidence that could not be obtained. VA examinations are of record. See 38 C.F.R. § 3.159 (2006). Thus, VA has fulfilled its duty to assist the veteran. Essentially, the veteran asserts that he had an onset of depression during service in Vietnam and that depression is a result of service. Transcript at 3-4 (2007). The Board notes that the veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the veteran as a lay person has not been shown to be capable of making medical conclusions, thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, while competent to report what comes to him through his senses, he does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994). Consequently, he cannot provide a competent opinion regarding diagnosis and causation. However, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, No. 2007-4019 WL 1892301 Vet. App. July 3, 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes 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), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, No. 04-0534 WL 1745833 Vet. App. June 15, 2007). In this case, the service medical records are negative for a diagnosis of depression. While at service entrance he indicated that he had had depression, no complaints and no objective findings of depression are otherwise noted in the service medical records. The initial objective evidence of depression is the January 2001 VA examination report showing a diagnosis of bipolar disorder and a May 2002 private record reflecting an assessment of depression. To the extent that a history of depression since the 1970s was noted, such is a mere transcription of lay history. Such information is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board notes that in a letter from received in October 2005, J. B., R. Ph., stated that he had had owned a drug store between 1954 and 1987, and prescriptions filled by the store for the veteran during that time could have been for depression. At best, the Board finds the statement to be speculative. Regardless, the statement does not attribute depression to service. In regard to the March 2000 statement of the veteran's ex-spouse to the effect that she noticed a change in the veteran's mood upon his return from Vietnam, the Board finds the remarkable gap in time between the veteran's separation from service and the first objective evidence of and/or treatment for a depressive disorder to be more probative of the date of onset. To the extent that the veteran is attempting to establish continuity of symptomatology based upon the statements provided, the Board finds such attempt to be inconsistent with the more probative contemporaneous record. Specifically, as noted, the service medical records are negative for a diagnosis of depression and psychiatric examination was normal at separation. At the hearing in April 2007, the veteran indicated that early post-service medical records had been destroyed. In summary, the evidence establishes no depression during service, a normal psychiatric examination at separation, and no competent evidence that a depressive disorder is related to service. The preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, the benefits sought on appeal are denied. ORDER Service connection for depression is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs