Citation Nr: 0809772 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-22 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, dysthymia, and depressed mood. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to January 1946. He is the recipient of the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In May 2007, the veteran submitted a Motion to Advance on the Docket, and such motion was granted on May 17, 2007. In June 2007, the Board reopened a previously denied claim for service connection for depression and remanded the case to the agency of original jurisdiction (AOJ) for additional development prior to adjudicating the merits of the claim. It now returns to the Board for appellate review. The Board notes that the veteran has received multiple diagnoses that relate to his symptoms of depression, to include depression, dysthymia and adjustment disorder with depressed mood. Accordingly, the Board has recharacterized the issue as service connection for an acquired psychiatric disorder, to include depression, dysthymia, and depressed mood, as indicated on the title page. FINDINGS OF FACT 1. VA notified the veteran of the evidence needed to substantiate the claim decided herein, explained to him who was responsible for submitting such evidence, and developed all available evidence necessary for an equitable disposition of the claim. 2. An acquired psychiatric disorder, to include depression, dysthymia, and depressed mood, was not present in service, or shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW An acquired psychiatric disorder, to include depression, dysthymia, and depressed mood, was not incurred in or aggravated by the veteran's active duty military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007)), eliminated the concept of a well- grounded claim and redefined VA's obligations with respect to its duties to notify and assist a claimant. In August 2001, VA issued regulations to implement the VCAA. 66 Fed. Reg. 45,620 (August 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007)). The Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits. In this case, the veteran was provided with VCAA notification letters in January 2004 and April 2004, prior to the initial unfavorable AOJ decision issued in July 2004. An additional VCAA notice was sent in June 2007. Under Pelegrini, for a VCAA notice to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the notice must: (1) inform a claimant about the information and evidence not of record that is necessary to substantiate the claims; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claims. Pelegrini, 18 Vet. App. at 120-121. In reviewing the veteran's claim of entitlement to service connection, the Board observes that the VCAA notices issued in January 2004, April 2004, and June 2007 informed the veteran of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. The April 2004 and June 2007 letters also advised him of the type of evidence necessary to establish service connection and the April 2004 letter requested that he send any evidence in his possession to VA. Accordingly, as the veteran was fully informed as required under VCAA prior to the initial RO adjudication of his claim, there is no prejudice in the Board proceeding with a decision. Also pertinent to VA notice requirements is the Court's decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Dingess/Hartman held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must notify the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present case, the June 2007 VCAA letter informed the veteran of the evidence necessary to establish entitlement to a disability rating and effective date for the disability on appeal. Despite the inadequate timing of the notice provided to the veteran on these two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). As the Board concludes herein that the preponderance of the evidence is against the veteran's service connection claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. All that VCAA requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished all due process concerns have been satisfied. See Bernard; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). As indicated above, all content requirements of a VCAA notice have been fully satisfied in this case. Therefore, the Board finds that delaying appellate review by providing additional VCAA letters to the veteran would be of no benefit. VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing him with a VA examination. The veteran's service medical records, VA medical records, private treatment records, and the reports from September 2001, July 2006, and July 2007 VA examinations were reviewed by both the RO and the Board in connection with adjudication of his claim. The veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claim without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis The veteran contends that he suffers depression as a result of his combat experience, to include the injuries that led to the award of the Purple Heart. Therefore, he contends that service connection for depression is warranted. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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). A finding of direct service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Board notes that the veteran's service records indicate that he was awarded the Purple Heart, which denotes combat experience. Therefore, the veteran is entitled to the application of 38 U.S.C.A. § 1154(b). However, competent evidence of a current disability and of a link between the current disability and service is still required despite the evidentiary effect of 38 U.S.C.A. § 1154(b). See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995). The statute "does not create a statutory presumption that a combat veteran's alleged disease or injury is service- connected," but only "considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service- connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service." Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). In this case, the Board notes that the veteran is claiming that his combat experience resulted in his depression. As indicated, the Board does not dispute that the veteran engaged in combat, nor that he was injured in the line of duty. However, the evidence must still show that the veteran's current psychiatric disorder is a result of that combat experience or was otherwise incurred in service. See Shedden; Caluza. The veteran's service medical records are silent for complaint, diagnosis, or treatment for an acquired psychiatric disorder. The veteran has indicated that he has not sought psychiatric treatment post-service, but his prescription records reveal that he has been prescribed antidepressants (Zoloft and Sertaline) through a primary care physician. At the September 2001 VA examination, the veteran was diagnosed with dysthymia, late onset. A May 2003 private treatment record reports a diagnosis of major depression and that Zoloft was prescribed. April 2004 and May 2004 VA treatment records reveals that the veteran reported feeling down or hopeless in the prior month, and that he was taking Sertaline, but not on a regular basis. Dysthymic disorder was diagnosed at an April 2005 PTSD screening. A May 2006 VA treatment record reveals a diagnosis of depression and a positive PTSD screen, but also that the veteran declined a referral to mental health care. The July 2006 VA examiner indicated that the veteran was a reasonably well-adjusted person who did not suffer from a mental health disorder; however, in July 2007, the examiner reported that the veteran displayed adjustment disorder with depressed mood. Therefore, the Board determines that the veteran has a current diagnosis of an acquired psychiatric disorder. Thus, the analysis turns to whether there is a relationship between the veteran's current psychiatric disorder and his military service. On this point, the Board notes that there are conflicting medical opinions of record. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). In a January 2004 statement, Dr. K indicates that he has been treating the veteran for over 10 years and that it is his understanding that the veteran was awarded the Purple Heart for injuries sustained in battle in World War II, and that the events leading to those injuries have evidently haunted the veteran for many years. Dr. K. stated that the veteran seemed to be depressed and that there is no other reason that could logically be the cause of the depression. In Kowalski v. Nicholson, the Court, citing its earlier decisions in Swann v. Brown, 5 Vet. App. 229 (1993) and Reonal v. Brown, 5 Vet. App. 458 (1993), reaffirmed that in evaluating medical opinion evidence, the Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate or that have been contradicted by other facts in the record. 19 Vet. App. 171, 179 (2005). However, the Court declared that the Board may not disregard a medical opinion solely on the rationale that the medical opinion was based on a history provided by the veteran, and instead must evaluate the credibility and weight of the history upon which the opinion is predicated. Id; see also, Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006) (holding that the Board erred in failing to assess the veteran's credibility in reporting the statements to the medical examiner). Dr. K.'s use of the word "evidently" is indicative of reliance on the veteran's own account of his medical history with regard to an acquired psychiatric disorder. Further, even though Dr. K. has apparently diagnosed the veteran with depression and prescribed antidepressants, his comment that the veteran "seemed to be depressed" reflects that Dr. K. lacks in-depth knowledge of psychiatric disorders and their treatment. Finally, as the record reveals, contrary to Dr. K.'s statement, there are other reasons than the veteran's military service that could have logically resulted in his depression. Thus, Dr. K.'s statement appears to rely wholly on the veteran's account of his psychiatric disorder and opinion with regard to etiology. In this regard, the Board acknowledges that it may not discount the veteran's assertions merely because the veteran is an interested party. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). However, the Board does find records contemporaneous with the veteran's service more reliable than the veteran's unsupported statements decades after discharge. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Service medical records are negative for diagnosis or treatment of a psychiatric disorder and, post-service, the veteran has not sought either inpatient or outpatient psychiatric treatment. The absence of medical evidence until the veteran's original application for service connection for an acquired psychiatric disorder in May 2001, over 55 years after service discharge, constitutes negative evidence tending to disprove the claim that the veteran had an injury in service which resulted in chronic disability or persistent symptoms post-service. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd Forshey, 284 F3d. 1335, 1358 (Fed. Cir. 2002) (en banc). Thus, the Board finds the veteran's accounts of his history with regard to his psychiatric disorder are not credible in light of the lack of medical evidence of record. Therefore, any medical opinion based on such history is not competent. As such, the Board is not bound to accept Dr. K's opinion. Black v. Brown, 5 Vet. App. 177 (1993); Swann; Reonal; Guimond v. Brown, 6 Vet. App. 69 (1993); Pond v. West, 12 Vet. App. 341 (1999). Accordingly, the Board affords the opinion of Dr. K. no probative weight. In contrast, the July 2007 VA examiner opined that it is less likely than not that the veteran's current adjustment disorder was caused by any experiences while he was in the military. Further, the examiner indicated that the adjustment disorder more likely arose from the veteran's advancing age and the death of a close friend in approximately 2000. In reaching this conclusion, the VA examiner considered all relevant medical evidence, to include service medical records and post-service treatment records, as well as the results of a thorough psychiatric evaluation which revealed various life events that are affecting the veteran's mental health. Thus, the Board affords this opinion great probative weight. Therefore, there is no competent and probative medical opinion relating the veteran's current psychiatric disorder to his active duty military service. The Board has considered the veteran's own statements regarding his claimed in-service etiology of his psychiatric disorder. Laypersons are competent to speak to symptomology when the symptoms are readily observable. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Absent competent evidence of a causal nexus between the veteran's psychiatric disorder and service, he is not entitled to service connection on a direct basis. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, in the present case, the preponderance of the evidence is against the veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Therefore, his claim must be denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression, dysthymia, and depressed mood is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs