Citation Nr: 1402431 Decision Date: 01/16/14 Archive Date: 01/31/14 DOCKET NO. 10-41 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for depression, claimed as secondary to service-connected residuals of prostate cancer to include incontinence and erectile dysfunction. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1969 to June 1971, with additional active service of one year, two months, and eight days. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2010, a hearing was held before a Decision Review Officer at the RO; a transcript of the hearing is associated with the Veteran's claims file. In June 2012, the Board remanded the case to the RO for additional development. In September 2012, the Veteran and his representative submitted additional evidence in the form of a statement from the Veteran's wife. This evidence was not accompanied by a waiver of initial consideration by the RO, in accordance with 38 C.F.R. § 20.1304. However, the lay evidence is essentially cumulative of the statements previously presented by the Veteran to the effect that his impotence and incontinence, as residuals of prostate cancer treatment, have contributed to his depression and put a severe strain on their marriage. For this reason, the additional evidence need not be referred to the RO for initial consideration under 38 C.F.R. § 20.1304(c). The issue of entitlement to a higher rating for residuals of prostate cancer was raised by the Veteran in a March 2010 statement and at a June 2010 DRO hearing but has not been adjudicated by the RO. Therefore, the Board does not have jurisdiction over it; it is referred to the RO for appropriate action. FINDING OF FACT Depression is not shown to have had onset during service; and depression is not shown to be related to an injury, disease, or event in service, or to have been caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for depression, claimed as secondary to service-connected prostate cancer, is not warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letters dated in March and April 2009. The Veteran was notified of the evidence needed to substantiate claim of service connection for depression; that VA would obtain service records, VA records and records of other Federal agencies; and that he could submit records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the elements of a service connection claim regarding the effective date of an award and the degree of disability. Furthermore, under 38 U.S.C.A. § 5103A, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. As is noted above, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in June 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the DRO who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the DRO hearing, the DRO indicated that the hearing would focus on the issue of service connection for depression, and discussed the elements of the claim that was lacking to substantiate the claim. The Veteran was assisted at the hearing by an accredited representative from the Military Order of the Purple Heart, which has since been replaced as his current representative. The representative and the DRO asked questions to ascertain the nature and etiology of the depression. There was no pertinent evidence identified by the Veteran or his representative that might have been overlooked and that might substantiate the claim. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The RO has also obtained the Veteran's service treatment records, VA treatment records, and private medical records identified by the Veteran, such as those from Dr. Armel and Dr. Snyder. He has not identified any additional available evidence that remains outstanding. The RO arranged for the Veteran to be examined in July 2010 specifically to determine whether or not his depression was secondary to prostate cancer residuals. The opinion received is adequate for rating purposes, as it reflects familiarity with the record and included a detailed explanation of rationale. Barr v. Nicholson, 21 Vet. App. 303 (2007). Although additional VA outpatient records were subsequently added to the claims file, such records continue to support the conclusions drawn by the VA examiner in July 2010 and do not suggest the need for a re-examination to re-visit the matter of whether the Veteran's depression is secondary to prostate cancer residuals to include erectile dysfunction and incontinence. The Veteran has not identified any pertinent evidence in this matter that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Further, 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. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. The Veteran claims that his mental disorder is attributable to his service-connected residuals of prostate cancer to include incontinence and erectile dysfunction. The Board will address both this and direct service connection theories of entitlement. The Veteran's service treatment records are silent for any complaints, findings, treatment, or diagnoses relating to depression. Thus, on the basis of the service treatment records alone, depression is not shown to have had onset during service, and service connection under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) is not established. Moreover, there is no continuity of symptomatology after service to support the Veteran's claim under 38 C.F.R. § 3.303(b). The Veteran is competent to describe symptoms of depression, even though the symptoms were not recorded during service. However, the service treatment records lack the documentation of the combination of manifestations sufficient to identify depression and establish chronicity in service and continuing since. Notably, the Veteran does not claim to have experienced depression or symptoms thereof during service or for many years thereafter. The onset of depression was documented many years later; the initial diagnosis (as shown in private treatment records) was in 2002. Accordingly, the preponderance of the evidence is against the claim of service connection for depression based on continuity of symptomatology under 38 C.F.R. § 3.303(b). The Board next turns to the question of whether service connection for depression may be granted on the basis that although the disability was first diagnosed after service, considering all the evidence including that pertinent to service, it is shown to be related to service under 38 C.F.R. § 3.303(d) (direct service connection) or under 38 C.F.R. § 3.310 (secondary service connection). The pertinent evidence regarding these theories of entitlement is as follows. In a March 2010 statement, the Veteran asserted that impotence or incontinence, which resulted from his treatment of prostate cancer, contributed towards his depression. He indicated that he was no longer intimate with his wife, and that this "severely strained" their marriage. He also stated that incontinence has affected his ability to concentrate, which in turn affected his job performance. He noted he was taking medication daily to treat his depression. Private medical records from C. Snyder, M.D., indicate that in March 2000, the Veteran was seen for a full physical examination. In a review of systems, it was noted that he had some partial erectile dysfunction over the past year, possibly with some decreased libido. The diagnoses included erectile dysfunction, maybe partly psychogenic. In May 2002, it was noted that the Veteran's wife wanted him to start Paxil; he had been feeling mildly depressed with some agitation, mostly related to problems with his business and finances. The assessment was depression/situational reaction, and he was started on Paxil. In February 2003, it was noted that Paxil was helping his aggression but maybe adding to erectile dysfunction. He had intermittent erectile dysfunction symptoms and borderline libido. The doctor diagnosed depression and mild erectile dysfunction in November 2003. In January 2004, the Veteran was noted to have occasional prostatism and his PSA was found to be elevated. Eventually, in April 2004 the Veteran had a prostate biopsy, which showed cancer that was low grade, and he opted for watchful waiting. Dr. Snyder referred the Veteran for a consultation regarding his prostate cancer in March 2005. At that time, his history included an elevated PSA in January 2004. The Veteran denied any difficulties with erectile dysfunction but did indicate some difficulty with depression a year earlier, which was treated with Wellbutrin. After such consultation, the Veteran decided to proceed with prostate seed implantation, which was performed in April 2005. Additional records from Dr. Snyder show that according to a January 2006 record, the Veteran eventually opted for prostate seeds for the cancer and his PSA was declining without any significant side effects; he was noted to still have erectile dysfunction but no specific decrease in libido or tiredness. The assessment included some worsening erectile dysfunction. In a general physical examination in February 2007, he still had chronically low-grade depression although no major symptoms. His business was not going well, and he had a lot of debt on his house and was afraid of losing it. Also noted was the death of two children who died in a motor vehicle accident many years ago, which was "still" with him "somewhat." The assessment included chronic depression and persistent erectile dysfunction. In a September 2006 letter, H. Armel, M.D., indicated that after undergoing seed implantation the Veteran had done quite well but presented that day complaining of erectile dysfunction (which he had had for more than two years). He also had occasional nocturia but was satisfied with his voiding pattern. On April 2009 VA genitourinary examination it was noted that the Veteran was being treated for urgency and leakage. He also reported erectile dysfunction since seed implantation, which was treated with Viagra with an approximate 20 percent effective rate. He stated he had no problems with his performance prior to the seed implants. The impression included residual erectile dysfunction and incontinence with mild residual functional impairments. On July 2010 VA psychiatric examination to address the impact and relationship of the Veteran's prostate cancer residuals on his depression, it was noted that the claims file was reviewed and a clinical interview of the Veteran was conducted. The examiner found the Veteran's clinical impression of depression to be consistent with the diagnoses given in the medical record. The examiner discussed at length two significant psychological themes that emerged, which he found to be major determinants of the Veteran's dysphoria, namely, his sense of not being financially successful in his work and his sense of having a marriage that was devoid of passion/romance. The examiner found there to be a notable lack in the progress notes/medical record of a specific linkage between the Veteran's dysphoria and his residuals and sequelae of prostate cancer and its treatment, particularly leakage and erectile dysfunction. The examiner discussed the Veteran's function status and his mental status. The examiner diagnosed dysthymia, and concluded that while the Veteran was clearly frustrated about erectile dysfunction and leakage resulting from his prostate cancer treatment, these matters did not seem to represent a significant part of his ongoing dysphoria. In fact, the examiner again noted the absence of clinical evidence of a link between the dysphoria and the Veteran's concerns about prostate cancer residuals. Subsequently, additional VA outpatient records were obtained for the record. Such records are dated from December 2009 to June 2012 and show continuing treatment for depression and erectile dysfunction. Some of the records were reviewed by the VA examiner, and the remaining records dated after the VA examination report of July 2010 appear consistent with the significant facts that supported the conclusions drawn by the VA examiner. For example, in December 2009 it was noted that the Veteran sought treatment for depression which dated from the 1980s when his two children died; the record mentioned financial problems experienced by the Veteran, but there was no mention of any problems caused by prostate cancer residuals. In January 2010, the Veteran's mood was subdued on account of the loss of his business and his children. In March 2010, it was noted that the loss of his two children triggered the onset of depression; that Cialis had helped with his erectile dysfunction; and that the Veteran felt shame relative to his job loss and his erectile dysfunction. March 2010 records indicate the Veteran was most troubled by (and wanted to work on) his finances, sexual relationship with his wife, poor interpersonal relationships, and general malaise. It was noted that he was uncertain if his erectile dysfunction was related to physical/medical difficulties or the lack of physical attraction to his wife. The lack of intimacy and romance with his wife was a topic for discussion in April 2010, but it was not noted in the context of erectile dysfunction problems. In May 2010, it was noted that the trouble with his marital intimacy was due to problems committing to his wife all these years; there was no mention of prostate cancer residuals in such discussion. In June 2010, it was noted that Cialis was helping with erectile dysfunction but that the Veteran was still not motivated to be romantic with his wife (although he still felt attraction to other women). In August 2010, the Veteran was noted to be feeling more down, bad, guilty, and worthless for not having a job and for being more of a taker than a giver; there was no mention of prostate cancer residuals in such discussion. In November 2010, there was a discussion of the longstanding sexual distance between the Veteran and his wife and of his intermittent erectile dysfunction; he noted there had never been much passion with his wife. In December 2010, the Veteran indicated his respect for his wife but noted a lack of physical desire for her; he felt bad about this lack of affection. He continued to take Cialis for erectile dysfunction. In December 2010, the Veteran's wife attended a therapy session, and she discussed and presented complaints about the Veteran's behavior; there was no mention at that session of prostate cancer residuals or the affect of the residuals on the Veteran and their marriage. Additional VA outpatient records show that in February 2011, the Veteran felt worthless and the weather was getting him down; also noted was the Veteran's continuing difficulty with erectile dysfunction (his wife was supportive). In May 2011, the Veteran's Cialis was noted to be working well. Also there was a discussion on the depressive effects of alcohol and marijuana on the Veteran, as well as a discussion of an extramarital affair. In August 2011, there was a summation given regarding the Veteran's ongoing issues, including financial hardship, struggle against foreclosure on his home, alcohol abuse, marital dissatisfaction (exacerbated by low libido and erectile dysfunction), and loss of children. Also in that month, it was discussed how past extramarital affairs had been good for his ego (but also left him with guilt); notably, neither marriage troubles nor depression symptoms were specifically tied to prostate cancer residuals. In December 2011, the Veteran's mood was down due to the increased stress from trying to prevent foreclosure on his house. In January 2012, home and financial issues continued to be the source of the Veteran's frustration; there was no mention of prostate cancer residuals. The Veteran agreed there was a connection between physical and mental health, and ways were identified in which to improve his health, such as ceasing a smoking habit and reducing alcohol intake; there was no mention of prostate cancer residuals. In February 2012, the Veteran noted he was not as depressed as 4-5 years ago; in the session, his alcohol intake was explored. In April 2012, the grief over the loss of his children was explored. In May 2012, he was evaluated for depression, and the Veteran reported ongoing stress related to financial limitations. Having considered the foregoing medical evidence, and particularly the statements of the Veteran, the Board finds that the record clearly does not show, nor has it been alleged, that the Veteran's depression is directly related to his period of active service. There is no evidence to show that the onset of depression or any symptoms thereof was during the Veteran's active duty, or for many years thereafter. It appears that the Veteran's depression may have had its beginnings in the 1980s, with the traumatic experience of having lost two children in an accident. The initial documentation of a diagnosis of depression was in 2002. Hence, service connection for depression on the theory of direct service connection is not established under 38 C.F.R. § 3.303(d). The Board now considers the merits of the Veteran's primary claim, which is based on a secondary service connection theory of entitlement under 38 C.F.R. § 3.310. As was noted previously, he contends that his depression is secondary to his service-connected prostate cancer residuals to include incontinence and erectile dysfunction. The record is devoid of any mention of incontinence in the context of depression or treatment thereof. The only prostate cancer residual that is noted within the mental health record is erectile dysfunction. The Veteran believes this condition resulted in or aggravated his depression. Clearly, his erectile dysfunction has frustrated him, but there is no competent evidence to show that clinically it has led to or increased the severity of his depression. As recounted above, the Veteran has been seen frequently at the VA for mental health therapy, and while erectile dysfunction has been noted as an ongoing problem, it has not been linked specifically to the Veteran's diagnosis of depression, either on a causal or aggravation basis. On the other hand, the treatment records show that the Veteran's depression was rooted mainly in financial difficulties brought on by the loss of a business and by the potential loss of his house to foreclosure, in the difficulties inherent in coping with tragedy in the loss of two children, and in marital difficulties. As to the marital difficulties, factors other than erectile dysfunction played a prominent role, as will be discussed. The medical record shows that clearly the Veteran's depression was diagnosed prior to the diagnosis of his prostate cancer. In fact, he was also noted to have mild erectile dysfunction prior to the discovery of prostate cancer. In any event, it appears the erectile dysfunction worsened after the implantation of seeds to treat the cancer. As noted by Dr. Snyder in 2007, the Veteran's depression was chronic by that point and coincident with a failing business and a fear of losing a house to foreclosure. The loss of his children was also somewhat "with" the Veteran. VA outpatient records show, over and over, that upon discussing the Veteran's symptoms of depression, any problems caused by prostate cancer residuals were not even mentioned. Once, when it was noted the Veteran felt shame relative to his erectile dysfunction, his treatment for the disorder was also noted to be helping him. Numerous entries in the record relate to the Veteran's troubled marital relationship, but the underlying factors for it are not shown to specifically include erectile dysfunction. Rather, during the many occasions the Veteran discussed his lack of intimacy and romance with his wife, it was not in the context of problems with erectile dysfunction but in relation to a lack of commitment, passion, and sexual/physical attraction to her. Such lack had an effect on him (making him feel bad). Even when the Veteran's wife participated in a therapy session, she presented complaints about the Veteran's behavior but did not assign any blame for his depression to prostate cancer residuals, as she does in connection to the current appeal. Through the years, the Veteran continued to take medication (Cialis) for his erectile dysfunction, and it was documented as helping him. In fact, it was noted to be working well in May 2011. Such a finding would seemingly favor the conclusion that the Veteran's difficulty with impotence had no mental health consequences. In contrast, the Veteran's alcohol abuse and marijuana use was specifically discussed with him during therapy, and he was informed of the depressive effects of such substances on him. In sum, examination of the treatment reports, both private and VA, did not find overall support for the Veteran's claim that his depression is secondary to prostate cancer residuals, particularly erectile dysfunction. The medical record demonstrates that the Veteran's depression was multi-factorial, none of which specifically consist of prostate cancer residuals. Moreover, the VA examiner's July 2010 medical opinion, which is the sole opinion of record to address the issue of secondary service connection for depression, is unfavorable to the Veteran's claim. The examiner determined that the major determinants of the Veteran's depression, cited as a dysphoria, did not include prostate cancer sequelae. He acknowledged the Veteran's frustration with erectile dysfunction and urinary leakage, but indicated that such residuals were not shown by the evidence to constitute a part of the Veteran's dysphoria. The examiner's conclusion that there was no link between the Veteran's depression and his prostate cancer residuals is against the Veteran's claim. There are no other medical opinions of record to contradict the conclusions of the July 2010 VA examiner. To the extent the Veteran asserts that there is an association between his depression and service-connected prostate cancer residuals, his opinion as a layperson is limited to inferences that are rationally based on his perception and does not require specialized education, training, or experience. See 38 C.F.R. § 3.159(a) (defining competent lay and medical evidence). Although he is competent to describe symptoms of depression, see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of personal knowledge), the determination as to which of various possible factors is/are the underlying factor(s) responsible for the depression is a medical question that requires medical knowledge/training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to offer a competent opinion on this question. He does not cite to supporting medical opinion or medical literature. Therefore his statements concerning the etiology of his depression are not competent evidence, and must be excluded. That is, they cannot to be considered competent evidence favorable to his claim. The medical opinion provided by the VA examiner is based on a review of the onset, clinical course, and status of the Veteran's depression. That examiner is qualified by education and training to offer a medical opinion on the etiology of the Veteran's depression (diagnosed as dysthymia), and he concluded that there was no evidence to support a link between the Veteran's mental disorder and his prostate cancer residuals, as claimed. This evidence opposes rather than supports the claim. As the preponderance of the evidence is against the secondary service connection theory of entitlement (under 38 C.F.R. § 3.310), the preponderance of the evidence is against the claim; therefore, and the benefit of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b). For the above reasons, considering all applicable theories of entitlement, service connection for depression is not warranted. ORDER The appeal seeking service connection for depression, claimed as secondary to service-connected residuals of prostate cancer to include incontinence and erectile dysfunction, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs