Citation Nr: 0733282 Decision Date: 10/23/07 Archive Date: 11/02/07 DOCKET NO. 06-03 161 ) 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 generalized anxiety disorder, claimed as a nervous condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from February 1953 to December 1954 The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, that denied the benefit sought on appeal. The veteran's case is currently advanced on the docket. In November 2006 the Board remanded the matter for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. FINDING OF FACT The veteran's generalized anxiety disorder is not shown to be causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for generalized anxiety disorder have not been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for generalized anxiety disorder. He contends his anxiety was incurred in service, and his representative has contended the anxiety is specifically related to combat. To establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. For combat veterans, 38 U.S.C.A. § 1154(b) (West 2002) provides that "[t]he Secretary shall accept as sufficient proof of service-connection . . . satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service . . . Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary." See also 38 C.F.R. § 3.304(d) (2007). However, the United States Court of Appeals for Veterans Claims (the Court) has further held that 38 U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. A veteran must still generally establish his claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). In Kessel v. West, 13 Vet. App. 9 (1999), the Court affirmed that the 38 U.S.C.A. § 1154(b) presumption only relates to the question of service incurrence, it does not relate to questions of whether the veteran has a current disability or whether there was a nexus between the in-service event and the current disability. With regard to a current diagnosis, the veteran was most recently diagnosed with generalized anxiety disorder in a May 2007 VA examination. As to the second element of service connection, it is unknown whether the veteran is entitled to a relaxed evidentiary requirement for determining what happened in service due to any combat status. The veteran's Form DD214 does not reflect the receipt of any medals indicative of combat. The only service record contained in the file is the veteran's separation examination. A response from the National Personnel Records Center indicated that the veteran's records may have been burned in a fire at that facility. Given the absence of such records, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)(the BVA has a heightened duty in a case where the service medical records are presumed destroyed). Despite the heightened duty required for fire-related service records, and the possibility of a relaxed evidentiary standard for combat status, the Board cannot find that service connection has been established. The veteran's separation examination was normal. Records from the Office of the Army Surgeon General do not reflect treatment for, complaints of, or diagnoses related to any psychiatric condition. Moreover, even assuming, arguendo, that the veteran's destroyed service records supported either the in- service incurrence of a psychiatric condition or combat status, a nexus is still required linking the veteran's current condition to service. In this regard, the May 2007 VA examiner found it is "unlikely" that the veteran's current diagnosis is related to his active duty, noting that since discharge, the veteran "was able to get married, raise a family, and work for over 40 years." The only other nexus opinion associated with the file is that of a November 1998 VA examiner who found that the veteran's symptoms of anxiety were not incurred prior to or in service. There are no other nexus opinions in the claims file. The Board has considered the veteran's arguments in support of his assertion that he has generalized anxiety disorder related to service, but the veteran, as a lay person untrained in the field of medicine, is not competent to offer an opinion as to the etiology of his disorder. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). His argument cannot provide a factual predicate upon which compensation may be granted. While he reported to examiners that he experienced anxiety and nervousness in service and received treatment for these problems after service, the written record does not support his claim. In his applications for service connection for anxiety disorder, the veteran stated that it began in 1995. He provided the names of a physician who had first treated him in 1980. Those records were obtained and showed treatment from 1995 to 1998 with no reference to anxiety disorder. Alternatively, the nexus to a service injury or event may be satisfied by evidence that a chronic disease manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Psychoses have been identified as such a chronic disease subject to presumptive service connection. 38 C.F.R. § 3.309 (2007). However, the earliest medical evidence associated with the claims file is dated from 1995, nearly 40 years after discharge. Because no diagnosis of any psychiatric condition was made within one year of the veteran's service separation, the presumption for service connection for chronic diseases does not apply. For all of these reasons, the veteran's claim for service connection for generalized anxiety disorder must be denied. Notice and Assistance The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in March 2005 and December 2006 provided the veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. In addition, the letter of March 2005 specifically informed the veteran that he should submit any additional evidence that he had in his possession, and the letter of December 2006 provided the appellant with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VA has no outstanding duty to inform the veteran that any additional information or evidence is needed. The veteran's initial duty-to-assist letter was not provided before the adjudication of his claim. However, after he was provided the letters he was given a full opportunity to submit evidence, and his claim was subsequently readjudicated. He has not claimed any prejudice as a result of the timing of the letters, and the Board finds no basis to conclude that any prejudice occurred. Any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). After VA provided this notice, the veteran communicated on multiple occasions with VA, without informing it of pertinent evidence. The veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. As such, the Board concludes that the appeal may be adjudicated without a remand for further notification. Moreover, the Board finds that a remand is not required due to the development completed in response to the Board's November 2006 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The intentions and directives of the November 2006 remand were accomplished. The veteran was afforded a complaint VA examination in May 2007 and all current VA treatment records were obtained. The veteran was provided notice pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006), as discussed above, was afforded the opportunity to submit additional evidence, and was also advised to submit a variety of the alternative types of evidence available to support his claim. The Board further finds despite an inadequacy, the December 2006 letter advised the veteran that evidence soon after service would be the most persuasive evidence available, and was given the opportunity to submit or identify any earlier psychiatric treatment received prior to the records from 2001, which are already in the claims file. The December 2006 letter erroneously informed the veteran that new and material evidence was required to reopen his claim, but the Board finds this was not prejudicial to the veteran because in so informing him, the veteran was specifically directed to submit or identify any records of psychiatric treatment received prior to 2001, which exactly complies with the intent of the Board's remand. In addition, the letter informed the veteran that evidence was needed showing that his anxiety disorder existed from military service, and that such evidence could include details about medical treatment received during service, lay statements from people who knew that the condition existed during service, records and statements from service medical personnel, to include nurses, corpsmen, and medics, and any medical evidence from hospitals, clinics, and private physicians of treatment received since military service. As such, the development directed by the Board in its last remand was accomplished and the intent of the remand was achieved. The Board further finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The veteran's available service medical records and all post service treatment records have been obtained. He was afforded VA examinations in November 1998, June 2000, January 2004, and May 2007. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of evidence is required. ORDER Service connection for generalized anxiety disorder, claimed as a nervous condition, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs