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    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

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