Citation Nr: 0713881 Decision Date: 05/11/07 Archive Date: 05/25/07 DOCKET NO. 04-07 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for paranoid schizophrenia. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from January 1969 until December 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2002 Rating Decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDING OF FACT Paranoid schizophrenia was not manifested during service or within one year of separation from service, and is not causally or etiologically related to active service. CONCLUSION OF LAW Paranoid schizophrenia was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103A, 5107 (West 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in November 2001, October 2002, March 2004, and February and March of 2006. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and his representative have not made the RO or the Board aware of any supporting information not in the record of evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Through his representative, the veteran asserts that he was not assisted in the development of his claim in several particulars. See Written Brief Presentation, dated April 17, 2007. First, he argues that he was not informed of the "type of evidence" needed to support his claim. However, as stated, the veteran was advised in accordance with the VCAA in November 2001, October 2002, March 2004, and February and March of 2006. To the extent that the veteran is contending that there was a duty to "prove" the claim, his contention is without merit, as the requirements under the VCAA do not extend to a continuing duty on the part of VA to continuously readvise the veteran of substantiating evidence. Locklear v. Nicholson, 20 Vet. App. 410, 415 (2006); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd and remanded on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). 444 F.3d 1328 (Fed. Cir. 2006); affirmed 02-1077 (December 21, 2006). The veteran also argues that his transfer from one military field to another is suggestive of the onset of paranoid schizophrenia, which should be further examined. However, as noted below, there has been no evidence obtained to suggest that the veteran was so reassigned on the basis of any mental symptoms, and the veteran and his representative are not medically qualified to render any opinion in this regard. Instead, there is no duty on the part of VA to provide a medical examination, because as in Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003), the appellant has been advised of the need to submit competent medical evidence indicating that he has the disorders in question, and further substantiating evidence suggestive of a linkage between his active service and the current disorders, if shown. The appellant has not done so, and no evidence thus supportive has otherwise been obtained. Here, as in Wells, the record in its whole, after due notification, advisement, and assistance to the appellant under the VCAA, does not contain competent evidence to suggest that the disorders are related to the appellant's military service. Given these matters of record, there is no competent evidence that "the disability or symptoms may be associated with the claimant's active military . . . service." 38 U.S.C.A § 5103A(d); cf. Charles v. Principi, 16 Vet. App. 370 (2002) (Holding that under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence, [including statements of the claimant]," and where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the claimant with a medical "nexus" examination). Further, there is no evidence to suggest that the veteran's service medical records are incomplete. Both the service medical file, as well as a copy of his military personnel records, contain no reference to any psychiatric disorder and are indicative of a full two-year military service tenure after the veteran's induction. Merits of the Claim The veteran claims he has paranoid schizophrenia related to service. Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as a psychosis like schizophrenia, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That a disease was incurred in service alone is not enough. There must be chronic disability resulting from that disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony is some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal is denied. Specifically, although the veteran has schizophrenia, there is no competent evidence linking the disorder to any incident of his military service. The evidence indicates that the veteran is diagnosed with schizophrenia, as indicated in his VA records starting from March 2001. Therefore, the remaining question is if the evidence supports a finding that the veteran's disability was incurred coincident with his time in service, or if a nexus exists between the current disability and an in-service event. While the veteran clearly has schizophrenia, there is absolutely no evidence to supports his contention that his condition is service related. Except for a notation that the veteran frequently had trouble sleeping in his February 1970 medical history (a symptom described by the veteran as being present his entire life), the veteran's service medical records, including his August 1970 separation examination, contain no evidence of any psychiatric disorder. Furthermore, VA notes that the veteran's report of separation from the Armed Forces (DD-214) indicates that the veteran was released from service as an early release overseas returnee, and not because of medical reasons. Although the Board notes that the veteran has asserted that he was hospitalized for his psychiatric disorder while in service, the veteran's contention is not substantiated by the record and the service department hospital in question reported in July 2004 that no records pertaining to the veteran were located. The veteran was diagnosed with paranoid schizophrenia in March 2001. Otherwise, there is no medical evidence that offers an opinion that the veteran has a psychiatric disorder that is related to his time in service. Additionally, no continuity of symptomatology for schizophrenia is in evidence until 2001, and no competent medical evidence tends to show the required nexus between the veteran's current disability and a service-related incident. "Competent medical evidence" means that provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.259(a). The only evidence provided as to the veteran's claim, is his belief that his schizophrenia developed concurrent with his time in service. Although the veteran can provide testimony as to his own experiences and observations, whether schizophrenia can be attributed to his in-service experiences and injuries is a medical question, requiring a medical expert. The Board does not dispute the veteran's belief that his schizophrenia is connected to his time in service; however, the veteran's opinion cannot be used as competent medical evidence to support his claim. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). 38 C.F.R. § 3.159. The veteran does not have the requisite special medical knowledge necessary for such opinion evidence. The evidentiary gap between the veteran's service discharge and his first disability record, when considered in conjunction with the veteran's lack of any incident in service tends to disprove the veteran's claim that his disability was due to an inservice disease or injury and should thus be considered service connected. See Forshey v. West, 12 Vet. App. 71, 74 (1998); aff'd sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that evidence can be used to prove or disprove a disputed issue). As noted above, the Board presently denies the claim on the principal basis that there is no competent medical evidence of a nexus between the disorder and his service. There is no record that the veteran developed a psychiatric disorder while in service and nothing to indicate that one developed within one year of the veteran's separation from service to indicate chronicity or continuity of symptomatology in support of a service connection finding. When the weight of evidence supports a claim or an approximate balance between positive and negative evidence regarding a material issue, the veteran shall prevail or have the benefit of the doubt on that issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). 38 U.S.C. 5107(b). 38 C.F.R. § 3.102. As the evidence of record is against the veteran's claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet.App. 49, 58 (1991). ORDER Service connection for the veteran's paranoid schizophrenia is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs