Citation Nr: 0029759 Decision Date: 11/13/00 Archive Date: 11/16/00 DOCKET NO. 96-09 617 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a psychiatric disorder, as secondary to service-connected disabilities of postoperative sinusitis with headaches, allergic rhinitis with nasal polyps, benign tumors/polyps of the frontal sinuses, and eyebrow scars. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The veteran served on active duty from July 1974 to July 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1995 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, denied reopening the claim of entitlement to service connection for depression. The Board notes that the RO subsequently adjudicated the veteran's claim of entitlement to service connection for a psychiatric disorder as a new claim (as opposed to a previously denied claim). This was proper in that when service connection for depression was denied in a March 1993 rating decision, the RO denied service connection only as to direct service connection (incurred or aggravated in service). The veteran now seeks service connection for a psychiatric disorder as being secondary to his service- connected disabilities. Thus, this is a new claim and must be adjudicated on a de novo basis. In August 2000, the veteran had a Board hearing via a videoconference with the RO. A transcript of the hearing is of record. This case was previously before the Board in December 1998, at which time the issue of whether new and material evidence was submitted to reopen the claim of entitlement to service connection for osteomyelitis was denied; the issue of entitlement to service connection for sinus polyps was allowed; and the issues of increased ratings for sinusitis with headaches and allergic rhinitis were also allowed. That decision also remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In the remand portion of that decision, it was noted that the veteran had filed a notice of disagreement pertinent to the June 1995 denial of service connection for asthma and depression; the RO was directed to provide a statement of the case on these matters. Subsequently, the RO provided a statement of the case regarding the issues of depression and asthma in December 1998. In his February 1999 substantive appeal, the veteran chose only to respond to the issue for service connection for depression. Thus, the Board only has jurisdiction of that matter. 38 C.F.R. § 20.200 (2000). In a March 2000 rating decision, the RO granted the veteran's appeal for a TDIU. Consequently, this matter is no longer before the Board. Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if the benefit sought on appeal is granted by the RO). FINDING OF FACT A psychiatric disorder is not causally related to or worsened by the service-connected disabilities of postoperative sinusitis with headaches, allergic rhinitis with nasal polyps, benign tumors/polyps of the frontal sinuses, and eyebrow scars. CONCLUSION OF LAW A psychiatric disorder is not proximately due to or the result of the service-connected postoperative sinusitis with headaches, allergic rhinitis with nasal polyps, benign tumors/polyps of the frontal sinuses, and eyebrow scars. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310(a) (2000); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background An October 1987 letter from a VA physician states he had seen the veteran in July 1987, at which time, he was very nervous and not sleeping well. The VA physician stated it was his impression that the veteran was an anxious and depressed man with psychomotor retardation and that his initial impression was to rule out major depression. The VA physician stated that once he began treating the veteran, he realized the veteran's symptoms were related to the stress of work environment both physically and psychologically. A February 1988 VA examination report shows the veteran reported feeling uptight most of the time. The examiner interviewed the veteran and entered a diagnosis of psychoneurotic reaction, mixed, with depressive and anxiety features. He concluded the following, in part: I do not feel that this veteran has a "major depressive reaction" but he does show evidence of depression, increased emotional tension and anxiety that is related primarily to his intense feeling that he has not received adequate consideration of his physical disability and the degree of impairment they have made in his personal and employment life to date. . . . A March 1988 private psychiatric consultation shows the examiner noted that in May 1987, the veteran had had an acute onset of depression while at work. She stated it had become chronic and had been diagnosed as job-related stress. The examiner determined that the veteran had developed depression and feelings of paranoia, citing neglect of his disease by the military and VA, unfair treatment by the Postal Service, and failure to recognize his disability. A September 1991 VA hospitalization summary report indicates the veteran was admitted with suicidal ideation. The examiner noted the veteran tended to blame the military, the United States government, and VA for all of his troubles and accepted no personal responsibility. The examiner noted the veteran was "clearly searching for increased disability income and [was] cooperating w[ith] staff [and the] program to facilitate that goal." The discharge diagnosis was adjustment disorder with depressed mood under Axis I and sinusitis under Axis III. An October 1992 private psychological evaluation shows the veteran underwent psychological testing. The examiner stated the veteran presented with depression, guardedness, and resistance to the interview. He reported his symptoms were an aggravation of psychological issues with the military as "emotional anguish." The clinical impression was major depression, alcohol and substance dependence, and generalized anxiety disorder. A March 1995 VA hospitalization summary report shows the veteran reported to the hospital implying he might attempt suicide and "take out others with me." The veteran stated he had difficulty trusting people because he suspected people were trying to hurt him or take advantage of him. The discharge diagnoses were polysubstance abuse with preference for cocaine and alcohol and dysthymic disorder under Axis I and chronic sinusitis under Axis III. Another March 1995 VA hospitalization summary report shows the veteran was admitted because he found himself ruminating about his problems again, including perceived unfair treatment and failure to recognize his disability by VA. He became increasingly depressed and relapsed into alcohol and cocaine abuse. The discharge diagnoses were polysubstance abuse with preference for cocaine and alcohol and dysthymic disorder under Axis I and chronic sinusitis under Axis III. A June 1995 VA hospitalization summary report shows the veteran was hospitalized for two months. The veteran reported a long history dating back to 1975 of medical problems developed while in the military service (asthma, allergies, headaches, sinus conditions, infections, and osteomyelitis), which had all led to high stress and a "nervous breakdown" in 1986. The veteran attributed his problems to medical condition, social/VA institutions, and racial discrimination. The discharge diagnoses were cocaine dependency; rule out alcohol abuse, dysthymic disorder versus substance induced disorder; and psychological symptoms, coping style affecting medical conditions under Axis I and chronic sinusitis and headaches under Axis III. April 1998 and January 1999 letters from a VA psychiatric technician state that the veteran was being treated under the Dual Diagnosis Aftercare Program for chronic sinusitis and allergic rhinitis and dysthymic depression and psychological factors affecting medical conditions. A March 1999 VA psychiatric evaluation report shows the examiner had an opportunity to review the claims files. He reported the pertinent evidence in each claims file. The examiner interviewed the veteran and entered diagnoses of personality traits or coping style affecting allergic rhinitis and sinusitis; depressive disorder, not otherwise specified; and cocaine abuse, in sustained full remission. The examiner concluded the following: The claims folder was reviewed, [and] the veteran was examined. In my opinion, [the veteran's] depression is due to his feeling that he is inadequately compensated for his service-connected disabilities and that he has been maltreated by the military, the VA, and the [P]ostal [S]ervice and has not been adequately recognized for the degree of disability which he has. I believe that this depression is due to his feeling of victimization and focus on the impact on his life of his "disease" rather than being directly the result (for example) of his chronic pain. . . . In my opinion, his depression is related to his feeling that he is victimized and not recognized for the conditions which he has rather than being directly a result of the conditions in and of themselves. In August 2000, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. The veteran stated he had had allergic rhinitis, headaches, and asthma in service. He noted he was service connected for sinusitis, rhinitis, and headaches. The veteran stated that due to these disabilities, he was depressed. He stated when he would have headaches and get into bouts of pain, he would become depressed. The veteran noted he had first sought treatment in 1987 for depression. He stated when he was hospitalized for depression, he would explain the pain he had and the exacerbations of his headaches and rhinitis. The veteran stated that the more pain he was in, the more depressed he would become, and it would worsen his physical symptoms. Criteria The law provides that "[t]he Secretary shall assist a claimant in developing all facts pertinent to a claim for benefits under this title. Such assistance shall include requesting information as described in section 5106 of this title. The Secretary shall provide a medical examination when such examination may substantiate entitlement to the benefits sought. The Secretary may decide a claim without providing assistance under this subsection when no reasonable possibility exists that such assistance will aid in the establishment of entitlement. Floyd D. Spence National Defense Authorization Act for FY 2001, Pub. L. No. 106-398, § 1611 (2000) (to be codified at 38 U.S.C.A. § 5107(a)). A disability which is proximately due to or the result of a service-connected disease or injury shall be service- connected. 38 C.F.R. § 3.310(a) (2000). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. In Allen v. Brown, 7 Vet. App. 439, 448 (1995), the United States Court of Appeals for Veterans Claims (Court) held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The veteran is seeking service connection for a psychiatric disorder, asserting that he developed the psychiatric disorder as a result of his service-connected disabilities. The Board finds that VA has met its duty to assist in that it has given the veteran a recent VA examination in March 1999. Additionally, the RO obtained the veteran's VA medical records related to his treatment at the VA facility. The Board is unaware of any additional evidence relative to the etiology of the veteran's psychiatric disorder, VA or non-VA, which has not already been requested and/or obtained in connection with the current appeal. Accordingly, the Board may proceed with adjudicating his claim. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the veteran's current psychiatric disorder is proximately due to or the result of his service-connected disabilities. The evidence that supports the veteran's claim consists of the VA hospitalization summary reports, which show a diagnosis of sinusitis under Axis III. Axis III is for reporting current general medical conditions that are potentially relevant to the understanding or management of the individual's mental disorder. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 39 (4th ed. 1994). Therefore, the diagnosis of sinusitis under Axis III could be perceived as a positive nexus between the psychiatric diagnosis under Axis I and the veteran's service-connected sinusitis, to include headaches. The Board finds, however, that the preponderance of the evidence is otherwise against a relationship between the veteran's psychiatric disorder, which has been variously diagnosed, and his service-connected disabilities, to include sinusitis. When seen in October 1987, the examiner stated the veteran's depression was due to the stresses of work. In the February 1988 VA examiner's report, the examiner stated the veteran's emotional tension and anxiety were related to his feeling that he had not received adequate consideration of his physical disability. In the March 1998 private psychiatric consultation, the examiner stated the veteran's depression was due to job-related stress. These pieces of evidence are against the veteran's assertions that he has a psychiatric disorder due to his service-connected disabilities. The examiners here attributed the veteran's psychiatric disorder to situations and conditions other than his service-connected disabilities. Finally, in the March 1999 VA psychiatric evaluation report, the examiner concluded that the veteran's depression was due to his feeling that he was inadequately compensated for his service-connected disabilities and that he had been maltreated by the military, the VA, and the postal service, and had not been adequately recognized for the degree of disability which he has, as opposed to being directly related to the conditions "in and of themselves." He specifically refuted the veteran's assertion that his service-connected disabilities had caused his depression. The Board finds that this psychiatric evaluation report is the most probative evidence in the claims file. The examiner had an opportunity to review the veteran's entire claims files and interview the veteran. It is apparent in the evaluation report that the examiner thoroughly reviewed the evidence of record, as he addressed each claims file and the evidence contained in it. The examiner made a final determination, after having reviewed the evidence of record, that the veteran's psychiatric disorder did not have a relationship with the veteran's service-connected disabilities. The Board finds that the March 1999 evaluation report the October 1987, February 1988, and March 1988 medical records outweigh the VA hospitalization summary reports, which show diagnoses of sinusitis and sinusitis with headaches under Axis III. As stated above, a diagnosis under Axis III does not affirmatively mean that such diagnosis has a relationship to the primary psychiatric diagnosis under Axis I. There is only a possibility. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 39-40. 38 C.F.R. § 4.130 (2000). An affirmative finding that the veteran's psychiatric disorder is not related to his service-connected disabilities is more probative than a possibility that sinusitis is related to the psychiatric diagnosis entered in Axis I. No medical professional has stated affirmatively that the veteran's psychiatric disorder is proximately due to, the result of, or worsened by the service-connected disability of sinusitis with headaches or any of the service-connected disabilities. Without an affirmative finding to refute the VA examiner's definitive determination that there is no relationship in the March 1999 examination report, the Board finds that the preponderance of the evidence is against the veteran's claim that there is a relationship between his psychiatric disorder and his service-connected disabilities. Although the veteran has alleged and testified that his psychiatric disorder is due to his service-connected disabilities, he is not competent to state the etiology of his psychiatric disorder, as that requires a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of evidence is against the veteran's claim for service connection for a psychiatric disorder, as being secondary to his service-connected disabilities of postoperative sinusitis with headaches, allergic rhinitis with nasal polyps, benign tumors/polyps of the frontal sinuses, and eyebrow scars, and thus there is no doubt to be resolved. Gilbert, 1 Vet. App. at 53; 38 U.S.C.A. § 5107(b). The Board acknowledges that it has denied this appeal on grounds different from the RO. In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that before the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument, an opportunity to submit such evidence or argument, an opportunity to address the question at a hearing, and whether or not the claimant has been prejudiced by being denied those opportunities. In the instant case, the appellant has not been prejudiced by this decision because the RO afforded the veteran the principles pertinent to service connection within the various statement and supplemental statements of the case. Additionally, the veteran was afforded a hearing in which he focused his testimony on the matter of service connection based on secondary considerations, as opposed to what constituted a well-grounded claim. As such, the record substantiates that the veteran had every opportunity to submit relevant evidence and argument that pertained to the basis on which the Board has denied the appeal. Therefore, no due process problem has resulted. Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to service connection for a psychiatric disorder, as secondary to the service-connected disabilities of postoperative sinusitis with headaches, allergic rhinitis with nasal polyps, benign tumors/polyps of the frontal sinuses, and eyebrow scars, is denied. M. Sabulsky Veterans Law Judge Board of Veterans' Appeals - 2 - - 1 -