Citation Nr: 0810887 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 04-18 447 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder with depressed mood and depressive disorder, including on a secondary basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from April 1963 to April 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2003 and May 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York that denied the veteran's claims of entitlement to service connection for depressive disorder and chondromalacia patella of the left knee. The veteran perfected timely appeals of these determinations to the Board. In October 2005, the Board granted the veteran's motion to advance the appeal on the docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2005). The Board notes that the veteran was scheduled to present testimony before a traveling Veterans Law Judge (VLJ). However, the veteran, in a June 2006 correspondence, canceled his request for a hearing. The Board thus deems the veteran's request for an appeals hearing withdrawn. See 38 C.F.R. § 20.704 (2006). These matters were before the Board in August 2006 and were then remanded for further development. In a November 2006 decision, the Board granted the veteran's claim of service connection for chondromalacia patella of the left knee, but denied the veteran's claim for depressive disorder. The veteran appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). In July 2007, the veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion For to Vacate in Part and Remand. In a July 2007 Order, the Court granted the motion, vacated the November 2006 Board decision, and remanded the case to the Board for further appellate review. FINDING OF FACT An acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood and depressive disorder, is etiologically related to the veteran's service-connected left knee chondromalacia. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood and depressive disorder, is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was enacted. The VCAA has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. The Board has considered this legislation, but finds that, given the favorable action taken below, no discussion of the VCAA at this point is required. The veteran argues that he is entitled to service connection for an acquired psychiatric disorder, to include a depressive disorder, including on a secondary basis. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection 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). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may also be established for disability which is proximately due to or the result of a service- connected disability, or for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310 (a), (b) In the instant case, the veteran's service medical records are negative for complaints or treatment of depression or depressive disorder. The veteran's VA treatment records indicate that the veteran sought treatment in August 2001 for depressed mood, which the veteran claimed he had been experiencing since 1998. Noted to be the veteran's current stressors were his father's Alzheimer's, his elderly mother, and his claim for disability. The veteran was afforded a VA examination for mental disorders in February 2003. On examination, the veteran was assessed as having depressive disorder, not otherwise specified. The examiner opined that the veteran's depression was somewhat related, but not totally, to pain and functional impairment in his left knee. A January 2008 VA medical treatment note indicates a diagnosis of adjustment disorder with depressed mood secondary to knee pain. The veteran submitted an examination report from a private clinical psychologist, Dr. D., dated in March 2008. It was noted in the report that psychological assessment instruments were used including a diagnostic interview, a comprehensive life history questionnaire, a comprehensive mental status examination, a global assessment of functioning, and a Minnesota Multiphastic Personality Inventory, Second Edition. Dr. D. opined that it was more likely than not that the veteran's adjustment disorder with depressed mood was caused by the effects of his service-connected left knee injury. The examiner explained that the veteran's persistent escalating pain, discomfort, insomnia, decreased mobility, impaired concentration, and impact on quality of life had resulted in a chronic depressed mood. Dr. D. also noted that these conclusions were based on standardized personality testing, observations of the veteran, data gathered in the diagnostic intake, a comprehensive life history questionnaire, mental status examination, and review of relevant medical records. After reviewing the record, the Board finds the evidence to be at least in relative equipoise. The medical evidence reflects that an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood and depressive disorder, is etiologically related to the veteran's service- connected left knee chondromalacia. The February 2003 VA examiner opined that the veteran's depression was somewhat related, but not totally, to pain and functional impairment in his left knee. Also, on January 2008 VA medical treatment note, a VA physician indicated a diagnosis of adjustment disorder with depressed mood secondary to knee pain. Furthermore, Dr. D., on March 2008 psychological examination, opined that it was more likely than not that the veteran's adjustment disorder with depressed mood was caused by the effects of his service-connected left knee injury. In light of the medical evidence relating an acquired psychiatric disorder to the veteran's service-connected left knee chondromalacia, and resolving all reasonable doubt in favor of the veteran, the Board finds that an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood and depressive disorder, is etiologically related to the veteran's service-connected left knee chondromalacia. Accordingly, appeal is granted. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood and depressive disorder, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs