Citation Nr: 0725121 Decision Date: 08/13/07 Archive Date: 08/20/07 DOCKET NO. 93-14 332A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant's mother and sister ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from June 1979 to December 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In August 2002, the Board reopened the veteran's claim for service connection for an acquired psychiatric disorder based on new and material evidence. In May 2003, the Board remanded the case to the RO. In October 2003, the Board denied the veteran's claim. The veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), and in March 2007, the Court granted a joint motion by the parties and remanded the claim to the Board. FINDING OF FACT The veteran's current psychiatric disability was first shown many years after service and is not due to any incident of service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1131, 5103 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service, and for some disorders, may be presumed if manifested to a compensable degree within the first post service year. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). In this case, the appellant has a current psychiatric disorder, diagnosed as schizophrenia. Accordingly, the appellant satisfies the initial criteria of having a current disability. The service medical records do not contain any findings of psychiatric symptoms, and no references to psychiatric complaints or treatment. The evidence shows that in 1988, about eight years after discharge, the appellant was first diagnosed with a psychiatric disability. The summary of the veteran's hospitalization at a VA facility from June 1988 to August 1988 indicates that this was his first admission and states: Lately he stopped taking care of his personal needs, not eating or sleeping & staying shut in his room for last 2 years. He was promptly admitted to prevent still further deterioration. The diagnosis was catatonic schizophrenia, and the prognosis was poor. The veteran's sister testified in May 1991 at the RO that the veteran first received treatment for a psychiatric disability in 1988, eight years after he was discharged from service. His sister explained that she observed that the veteran's demeanor had changed after he returned from active duty. She recounted that the veteran's conditioned continued to worsen until 1988 when he was admitted to the hospital. When she testified in January 1994, she stated that she had taken the veteran to VA many times but that he was denied treatment because he did not have any document to prove that he was a veteran. His mother also testified at the January 1994 hearing. His mother testified that when the veteran returned home from the military he was very nervous, used offensive words, and that his unusual behavior began the first day he arrived home. His sister has stated that when the veteran came home from the military, he was distracted. She reported that he did not receive treatment prior to 1988. In a September 1999 VA medical questionnaire, a private physician diagnosed the veteran with schizophrenia that was "reportedly service connected." The private physician did not cite the evidence upon which his conclusion was based. In fact, the use of the word "reportedly" suggests that the physician did not render an opinion himself concerning whether the veteran's psychiatric disorder was incurred during his military service, but was repeating what had been reported to him. VA examined the veteran in March 2003. The VA examiner indicated that she had thoroughly reviewed the veteran's claims file and found no evidence of complaints or treatments for a neuropsychiatric condition during the veteran's service. Based on a psychiatric examination of the veteran, she diagnosed chronic schizophrenic disorder, undifferentiated type. The examiner found no evidence that the veteran had any kind of emotional or psychiatric symptoms during service or that he had received an evaluation or evaluation for a neuropsychiatric disorder. There was no evidence that the veteran had any specific event or situation during service that might have provoked his current neuropsychiatric disorder. There was no evidence of any treatment, at least not on a regular basis, or any diagnosis during the years that followed his discharge from Military service until VA admitted him in 1988. The examiner concluded that, based upon the available evidence, there was no relationship, and it was very unlikely, that the veteran's current neuropsychiatric disorder was related to his military service. The examiner subsequently reviewed the March 2003 VA Social and Industrial Field Survey. Based on her review, she noted that it confirmed her earlier impression that the veteran's current neuropsychiatric disorder was not in any way likely to be related to the veteran's military duty or to any event during service. The service medical records are negative for a finding of a psychiatric disorder. The post-service medical evidence reveals that the veteran was not diagnosed with a psychiatric disorder until 1988, which was eight years after his discharge. The March 2003 VA examiner, based on a thorough review of the record, opined that the veteran's current psychiatric disorder was not related to an incident or disorder during service. The Board finds this March 2003 VA psychiatric examination report compelling because the examiner's recitation of the evidence is consistent with the evidence in the claims file. The VA physician thoroughly discussed the veteran's medical history, reviewed the claims file, and explained the reasons for her conclusion. It is noted that the veteran's representative has argued that it is not clear that the VA examiner considered the lay statements in the file. However, the examiner reported that the claims folder, which contained the lay statements, was thoroughly reviewed; thus, the lay statements were considered by the examiner. The evidence in favor of the veteran's claim lacks probative weight. The private physician who completed the September 1999 VA medical questionnaire did not cite the basis of the statement that the veteran had schizophrenia that was "reportedly service connected," and the Board finds that this evidence lacks weight and probative value when compared to the evidence discussed above. To the extent that it may reflect the physician's opinion - rather than a recitation of what he had been told -- a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). An examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board has considered additional private evidence, to include a certificate from Centro De Salud Mental De La Cumunidad dated from January 1994, and VA outpatient treatment records from July 1997 through 2002. This evidence does not indicate that a psychiatric disorder developed during service. Medical expertise is required to causally relate the origin of a current disability to the veteran's military service. Whether certain symptoms can be said with any degree of medical certainty to be early manifestations of a disorder first diagnosed years later is a medical question requiring medical evidence for its resolution. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Clyburn v. West, 12 Vet. App. 296 (1999). The appeal has been returned to the Board so that the Board can specifically discuss the lay statements and lay testimony of the veteran's family members and friends. This includes numerous written statements from friends and family in support of the veteran's claim, a transcript of a May 1991 hearing at the RO in which the veteran's sister testified, and a transcript of a January 1994 hearing at the RO in which the veteran's mother and sister testified. The veteran did not testify at either hearing. The veteran's mother and sister are not medically trained, and thus their testimony at the 1991 and the 1994 hearings lacks probative value when considering diagnosis or etiology of a disorder. See Espiritu. The same is true for the other lay statements of record. While they are competent to attest to matters susceptible to lay observation, as lay people, they are not competent to provide an opinion requiring medical expertise, such as an opinion that a current an acquired psychiatric disorder is etiologically related to a disease or incident during service. See Espiritu. Thus, this testimony and these statements are used to describe the veteran's behavior, actions, and statements, which then must be evaluated to determine whether they show that the veteran's currently diagnosed schizophrenia was present either during his active military service or manifested to a degree of 10 percent within the initial post-service year. Service connection may be granted when a chronic disease or disability is not present in service, but there is evidence of continuity of symptomatology after service. See 38 C.F.R. § 3.303(b) (2006). The United States Court of Appeals for the Federal Circuit in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), has held that while the Board is entitled to weigh the credibility of lay evidence, a lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on competent lay evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. In this case, the Board concludes that the lay evidence presented by the veteran and his friends and family, concerning his continuity of symptoms after service, is not credible when weighed against the medical evidence from and after service. It is claimed that the veteran has had symptoms of his current psychiatric disability since his military service. When considering both the lay and the medical evidence, the Board gives more weight to the contemporaneous medical evidence than to the lay statements made for the purpose of supporting the veteran's claim. The medical evidence in the veteran's claims file simply does not support the proposition that he has had symptoms of his current psychiatric disability since his military service. The Board notes that, in his May 1989 claim, the veteran reported that he was treated in service in 1979 and 1980, but his sister has testified that he was not treated during service. (See, hearing transcript in May 1991 and in January 1994). This testimony is consistent with the service medical records, which do not refer to any psychiatric complaints, symptoms, or treatment. Thus, the veteran's statements are unreliable. The lay statements, particularly the testimony of the veteran's sister and mother, are to the effect that the veteran had symptoms from the day he returned home from service. This testimony is not consistent with the contemporaneous medical records: the service medical records, which do not refer to any psychiatric symptoms or complaints, and the first medical evidence of a psychiatric disorder. The summary of the hospitalization beginning in June 1988 clearly refers to an acute exacerbation of the veteran's psychiatric symptoms. But it also only dates his symptoms from two years prior to the hospitalization - not all the way back to 1980, in contrast to the lay evidence. Because there is good reason to provide an accurate report of symptoms when seeking medical treatment, the Board give more weight to the contemporaneous medical records than to the later lay statements made for the purpose of supporting the veteran's claim for service connection. Lay parties are competent to report subjective complaints; however, the Board does not find the veteran's or his friends and family's allegations and reported history credible. Credibility is an adjudicative, not a medical determination. The Board has "the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In this case, there are objective documents, described above, that clearly refute his reported history. Because of the inconsistencies, and the lack of any corroborating evidence, the Board finds that the lay allegations have limited, if any, probative value. Consequently, the lay statements do little to establish continuity of symptomatology under 38 C.F.R. § 3.303(b). This evidence weighs heavily against a finding that the veteran had psychiatric problems in service and continuously thereafter. The Board has considered the veteran's assertions that his psychiatric disorder had its onset in service or within the first post-service year, and while he, his friends, and his family members may believe that it did, as a lay persons without medical expertise their assertions are not competent medical evidence. A lay person has no competence to offer a medical opinion in that regard. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence demonstrates that a chronic psychiatric disorder was not present in service or until several years thereafter and was not due to service; not only is there a lack of contemporaneous medical evidence supporting any claims of continuity of symptomatology; there are documents contradicting such a claim. Therefore, the lay allegations as to post-service continuity of symptoms are not credible and not persuasive. Duties to Notify and Assist VA has certain duties to notify and to assist claimants concerning the information and evidence needed to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159 and 3.326(a). VA must notify the claimant (and his or her representative, if any) of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide, and (4) VA must ask the claimant to provide VA with any evidence in his or her possession that pertains to the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The initial denial of this claim occurred in 1992. The RO's March 2002 letter described the evidence needed to support the veteran's claim for service connection. This was after the initial denial which found that no new and material evidence had been received to reopen the claim for service connection from which the claim regarding service connection stems. This notice informed the veteran of what the evidence must show to establish entitlement to service connection, what had been done on his claim, what information or evidence VA needed, what the veteran could do to help with his claim, when and where to send information or evidence, and VA's duty to assist him. While he was not specifically told to send evidence he had in his possession, he was informed that he could submit any additional evidence not previously considered by the RO as well as where and when to send the evidence. The Court acknowledged in Pelegrini at 120 that where, as here, the section 5103(a) notice was not mandated at the time of the initial RO decision, the RO did not err in not providing such notice. The 1992 claim was eventually reopened. Thereafter, the appellant received content- complying notice and proper subsequent VA process. The requisite notice was ultimately provided to the appellant before the final transfer and certification of the case to the Board, and he had ample time in which to respond to the notice letter. Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). The appellant has had a "meaningful opportunity to participate effectively" in the processing of his claim. Mayfield, Id. The Board finds that the present adjudication of the issue on appeal will not result in any prejudice to the appellant. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Any deficiencies in VA's duties to notify or to assist in this regard are harmless, as service connection has been denied. In addition, the duty to assist the veteran has also been satisfied in this case. There were two hearings before a hearing officer at the RO. The appellant has been examined, an opinion has been rendered, and records have been obtained. He has not identified any records which could be pertinent to his claim that have not been secured. There is no indication that there are any outstanding records that are pertinent to this claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs