12-33 877
12-33 877
| Board of Vet. App. | Oct 31, 2017Background
- Veteran served on active duty Sept 1961–Aug 1963; claim for service connection for an acquired psychiatric disorder (PTSD, adjustment disorder, depression).
- Initial RO denial in Sept 2012; Board remanded in March 2017 for development and scheduled a VA examination for June 5, 2017.
- Veteran failed to attend the June 2017 VA examination and neither he nor his representative contested that notice was not provided or requested rescheduling.
- Service treatment records contain no psychiatric complaints; first VA mental-health screening/diagnoses appear in April 2012 and thereafter.
- No medical nexus opinion in the record linking current psychiatric diagnoses to in-service events; Veteran’s lay assertions as to etiology deemed not competent medical evidence.
- Board applied 38 C.F.R. § 3.655 to decide the claim on the existing record and denied service connection, finding the preponderance of evidence against the claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran's psychiatric disorder is service-connected | Disorder caused by service in Laos (unclean water, disease, insects) | No competent medical nexus or in-service psychiatric evidence; missed exam prevents obtaining nexus opinion | Denied — no adequate nexus evidence; preponderance against claim |
| Effect of Veteran failing to attend VA exam | (Implicit) may not have received notice or needs another exam | VA presumed proper notice absent allegation; decide on record per 38 C.F.R. § 3.655 | Denied — Board found adequate notice and proceeded on record |
| Competency of lay statements to establish etiology | Veteran reports symptoms and links them to service | Lay testimony insufficient to establish medical diagnosis/causation for psychiatric conditions | Held — lay assertions have no probative value on etiology without medical support |
| Application of benefit-of-the-doubt rule | Rule should favor Veteran when in equipoise | Preponderance of evidence against claim, so rule inapplicable | Held — benefit-of-the-doubt not applicable; denial affirmed |
Key Cases Cited
- Horn v. Shinseki, 25 Vet. App. 231 (establishing elements required for service connection)
- Davidson v. Shinseki, 581 F.3d 1313 (discussing standards for service connection proof)
- Jandreau v. Nicholson, 492 F.3d 1372 (lay testimony competent for observable symptoms but not medical etiology)
- Kyhn v. Shinseki, 716 F.3d 572 (limiting reliance on presumption of regularity when claimant alleges lack of notice)
- Baxter v. Principi, 17 Vet. App. 407 (Board need not rebut presumption of regularity absent an allegation of nondelivery)
- Ortiz v. Principi, 274 F.3d 1361 (benefit-of-the-doubt doctrine application)
- Gilbert v. Derwinski, 1 Vet. App. 49 (use of benefit-of-the-doubt doctrine)