07-16 179

CourtBoard of Veterans' Appeals
DecidedMay 31, 2017
Docket07-16 179
StatusUnpublished

This text of 07-16 179 (07-16 179) is published on Counsel Stack Legal Research, covering Board of Veterans' Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
07-16 179, (bva 2017).

Opinion

Citation Nr: 1719237 Decision Date: 05/31/17 Archive Date: 06/06/17

DOCKET NO. 07-16 179 ) DATE ) )

On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama

THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and depression.

REPRESENTATION

Veteran represented by: The American Legion

ATTORNEY FOR THE BOARD

Jane R. Lee, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1999 to September 2001.

This appeal is before the Board of Veterans' Appeals (Board) from a March 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in part, denied service connection for depression with psychotic features.

The scope of the Veteran's claim for a psychiatric disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).

In January 2011 and March 2013, the Board remanded the issue for further evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

In this case, the Agency of Original Jurisdiction substantially complied with the Board's March 2013 remand instructions by associating updated VA treatment records, obtaining a July 2016 VA addendum opinion, and readjudicating the issue in a January 2017 Supplemental Statement of the Case.

FINDINGS OF FACT

1. The evidence does not demonstrate that the Veteran's schizophrenia had an onset during or is etiologically related to his active duty service.

2. The Veteran reported having had depression at service separation, and resolving any doubt in his favor, his current depression had its onset during service.

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016).

2. The criteria for service connection for depression have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA's duty to notify was satisfied by letters on November 4, 2005, and March 20, 2006. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records, VA medical records, identified private treatment records, and Social Security Administration records have been obtained.

Also, the Veteran was provided a VA examination in March 2011, and an addendum was obtained in July 2016. Taken as a whole, this examination, its associated report, and the addendum opinion are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).

Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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).

Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Additionally, where a veteran served 90 days or more of active service, and certain chronic disease, such as psychosis, become manifest to a degree of 10 percent or more within one year after the date of separation from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. If the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a), 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic disease" in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes.

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Clarence W. Kowalski v. R. James Nicholson
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James P. Barr v. R. James Nicholson
21 Vet. App. 303 (Veterans Claims, 2007)
Woehlaert v. Nicholson
21 Vet. App. 456 (Veterans Claims, 2007)
Frances D'Aries v. James B. Peake
22 Vet. App. 97 (Veterans Claims, 2008)
Regis M. Quirin v. Eric K. Shinseki
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