Citation Nr: 0801682 Decision Date: 01/16/08 Archive Date: 01/29/08 DOCKET NO. 04-36 448 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for generalized anxiety disorder, claimed as depression, to include as secondary to his service-connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The veteran served on active duty from April 1951 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, which denied the veteran's claim for entitlement to service connection for generalized anxiety disorder, claimed as depression In December 2007, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge (Videoconference hearing); a copy of this transcript is associated with the record. FINDINGS OF FACT There is no competent medical evidence showing the veteran's generalized anxiety disorder, claimed as depression, is related to service or is a result of, or proximately due to, his service-connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis. CONCLUSION OF LAW Generalized anxiety disorder, claimed as depression, was not incurred in, or aggravated by, active military service, and is not proximately due to, or aggravated by, service- connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the V A duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter(s) sent to the appellant in January 2005 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. The appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. In response to the January 2005 letter, the veteran submitted a signed Expedited Action Attachment which stated that he had no additional relevant medical evidence to submit. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although this notice was not provided until September 2007, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA medical records and examination reports, non-VA medical records and private physician's statements and lay statements have been associated with the record. The veteran contends that his service medical records from his time in Korea while he was with the 226th Signal Service Corps are not part of the record; however, these medical records have been associated with the record along with the rest of the veteran's service medical records, and have been considered as part of the evidence. The veteran also contends that he sought treatment immediately after leaving service at a VA hospital in New York. The RO has attempted to obtain these records and has been informed that there are no records available. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In addition, the appellant was afforded a VA medical examination in April 2003. Significantly, neither the appellant nor his or her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also may 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 may also be awarded for certain disabilities, such as arthritis, which manifest to a compensable degree within a statutorily-prescribed period of time. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service- connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Generally, when a veteran contends that a service-connected disability has caused a new disorder, there must be competent medical evidence that the secondary disorder was caused or chronically worsened by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has also 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. Brown, 3 Vet. App. 223, 225 (1992). At his December 2007 videoconference hearing, the veteran contended that symptoms of his generalized anxiety disorder, claimed as depression, began during service and should therefore be service-connected. In the alternative, he contends that his generalized anxiety disorder has been cause by his service-connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis. The veteran's service medical records do not reflect any treatment for or diagnosis of a mental disorder. Private medical records from the University of Medicine and Dentistry of New Jersey (UMD) from April 1989 through December 1991 reflect a diagnosis of dysthymia and alcohol abuse by history. An August 1992 statement from a private physician at UMD reflects that the veteran complained of depressed mood and insomnia. The physician noted that the veteran's stressors were termination of employment because of disabilities, the death of close friends, severe financial problems, difficulty in dealing with his son's alcoholism, and multiple medical problems. He was not able to be treated with many antidepressant medications due to his cardiac and respiratory illnesses; however, he did appear to benefit from a low dose of prozac. The final diagnosis was depression not otherwise specified and alcohol abuse (in remission). Private treatment records from the Somerset Health Center from February to June 1992 show that the veteran was treated for insomnia and restless legs, along with other medical issues including a history of diverticular disease. He was diagnosed with alcohol abuse, in remission, but there was no treatment for or diagnosis of any other mental disorder. A statement received by the RO in December 2002 from Dr. J.C.G., a private physician, indicates that he treated the veteran from April 1994 to April 1996, in approximately 20 sessions. The private examiner diagnosed the veteran with excessive rigidity with compulsive and self-destructive behaviors, accompanied by guilt, some depression and alcohol abuse, with the latter problems eventually resolved. The examiner observed that the veteran appeared to make considerable progress. Also in December 2002, the RO received a list of dates of treatment from Dr. D.M.L., a private physician who treated the veteran from April 2001 to January 2004. The physician noted his diagnosis of depressive disorder not otherwise specified and that the veteran was placed on antidepressant medication. A February 2003 statement from Dr. A.K., a private physician who treated the veteran from November 1999 to December 2000, shows that the veteran complained of a depressed mood, feelings of hopelessness, helplessness, and that he worried a lot. He had been abstinent from alcohol for seven years. The examiner noted that the veteran's medical history was positive for high blood pressure, diabetes, chronic pulmonary artery disease and insomnia. She noted that in November 1999, she diagnosed him with recurrent major depression and placed him on antidepressant medications. He continued to remain depression free while on the medications. In February 2003, the RO received records from Dr. D.B., a private physician who had treated the veteran for adjustment disorder and mixed emotions from February 2001 to June 2001. An April 2003 VA examination for mental disorders reflects the veteran's complaints that he had problems sleeping, was tired throughout the day, worried a lot, was irritated easily and was occasionally forgetful. Upon examination, the veteran was alert and oriented times three, was well nourished, well developed and neatly and casually dressed. He made good eye contact, was cooperative and was in no acute distress. His affect was blunted, his mood was anxious and his speech was clear, concise and goal directed. There were no flights of idea, looseness of association, suicidal or homicidal ideations, delusions or auditory or visual hallucinations. His insight and judgment were good. The relevant diagnosis was generalized anxiety disorder. The examiner opined that the veteran's symptoms of anxiety began while he was serving in the Army, and that these symptoms included much worry, difficulty sleeping, daytime fatigue, irritability, difficulty relaxing, and tenseness in his shoulder and neck muscles. The examiner opined that the veteran's anxiety symptoms are more predominant than his depressive symptoms and that these anxiety symptoms had their beginnings while in the service during Korea. The examiner went on to state that he believed that the veteran's hepatitis problems would only have exacerbated his anxiety symptoms, but it appeared that his hepatitis only flared up during the several years he was in Korea and shortly thereafter. June and September 2003 statements from Dr. M.D., a private physician, reflect his opinion that the veteran has depressive disorder and requires ongoing treatment, including antidepressant medication. Finally, in an April 2006 letter from Dr. R.S.F., a private physician, noted he was currently treating the veteran and reflects his diagnosis of dysthymic disorder and anxiety disorder not otherwise specified, and that he is on antidepressant medication. After review of the entire record, the Board finds the preponderance of the evidence to be against the award of service connection for generalized anxiety disorder, claimed as depression. The veteran's service medical records are void of any report of treatment for or diagnosis of a mental disorder. The first post-service treatment record that indicates a mental problem is in 1989, over 35 years after leaving service. The record reflects that the veteran has been diagnosed with generalized anxiety disorder and has been receiving ongoing treatment. However, with the exception of the April 2003 VA examiner, none of his treating physicians has linked this disorder to service or to his service- connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis. In terms of the April 2003 VA medical examination report, while the examiner stated that he reviewed the veteran's claims file, it appears that he based his nexus opinion on the veteran's self reported history, as the veteran's contentions that his anxiety symptoms began in service are not corroborated by his service medical records. The veteran's service medical records do not show any treatment for or diagnosis of a mental disorder. The Board acknowledges the veteran has submitted statements indicating that his anxiety symptoms began while he was in service and that he made these same statements to the April 2003 VA examiner. In addition, the veteran submitted statements from a fellow soldier and from family members indicating that his symptoms of anxiety and depression began during service. These statements are considered lay evidence, which is defined as any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In this regard, the Board notes that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent evidence as to the occurrence of these symptoms, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006). In adjudicating his claim, the Board must evaluate the veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In the present case, although the veteran has reported that problems with anxiety and depression began during service and continued symptomatology following service and has submitted lay statements to that effect, his service medical records and his separation examination report do not reflect a diagnosis of or treatment for a mental disorder and post- service treatment is not indicated until 1989. The Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Overall, the Board finds the lack of evidence of treatment for or a diagnosis of a mental disorder in service or on his separation examination report to be more persuasive than the recollection of symptoms in the distant past. As such, although sincere in his beliefs, the veteran is not found to be credible in relating a history of the manifestation of anxiety or depression while in service. In addition, the statements from his friends and family members, while genuine in their beliefs, are not verified by the evidence of record and are not considered credible. There is simply no medical evidence to support these contentions; in fact, the results of the veteran's separation examination indicated there was no mental disorder upon his discharge from service. Competent medical evidence is defined as evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). In Kowalski v. Nicholson, 19 Vet. App. 171 (2005), the Court found that a medical opinion cannot be disregarded solely because it is based upon history provided by the veteran without also evaluating the credibility and weight of the history upon which the opinion is predicated. The April 2003 VA examiner did opine that the veteran's anxiety symptoms had their beginnings while in the service during Korea. However, this is based entirely on the veteran's self-reported medical history, which, for the reasons cited above, is not considered to be credible based on the evidence of record. The record itself does not reflect any mental disorder during military service. The April 2003 examiner also indicated that the veteran's hepatitis problems would only have exacerbated his anxiety symptoms, but noted that it appeared that his hepatitis only flared up during the several years he was in Korea and shortly thereafter. However, as noted above, there is no competent medical evidence in the claims file of a mental disorder until 1989 and the lay evidence supporting an earlier manifestation of anxiety and depression is not considered credible. In addition, medical possibilities and unsupported medical opinions carry negligible probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty for medical nexus evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999). Without competent medical evidence linking the veteran's generalized anxiety disorder, claimed as depression, to active duty or to his service-connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis, there is no basis upon which to grant service connection. Overall, the preponderance of the evidence is against the veteran's claim, and service connection for generalized anxiety disorder, claimed as depression must be denied. As noted, in support of his claim the veteran has submitted several statements from relatives and a fellow serviceman which assert a connection between the veteran's current mental disorder and his time in service. The veteran has also submitted his own contentions. However, even if these statements were considered credible, they are not competent to render an opinion regarding medical diagnosis or medical opinion on etiology. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for generalized anxiety disorder, claimed as depression, to include as secondary to his service- connected infectious hepatitis with irritable bowel syndrome and severe diverticulosis, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs