Citation Nr: 0812384 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-25 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for depression. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from June 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa which denied service connection for depression. FINDING OF FACT The competent medical evidence of record does not indicate that a nexus exists between the veteran's currently diagnosed depression and his military service. CONCLUSION OF LAW Depression was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks entitlement to service connection for depression. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issue on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated October 27, 2003, including a request for evidence of "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced October 2003 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records to include "records from State or local government, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The October 2003 letter further emphasized: "You must give us enough information about your records so that we can request them from the person or agency that has them. If the holder of the records declines to give us the records or asks for a fee to provide them, we'll notify you of the problem. It's your responsibility to make sure that we receive all requested records that aren't in the possession of a Federal department or agency." [Emphasis as in the original] The Board notes that an April 13, 2006 letter from the RO specifically requested of the veteran: "If you have any information or evidence that you have not previously told us about or given to us . . . please tell us or give us that evidence now." This complies with the "give us everything you've got" provision contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (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. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, elements (1) and (2) are not in dispute. As explained above, the veteran received adequate notice as to element (3) in the October 2003 VCAA letter. The veteran was provided specific notice of the Dingess decision in the above-referenced April 2006 letter which detailed evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the April 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In any event, because this claim is being denied, elements (4) and (5) are moot. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's service medical records, VA medical records, private medical records, and records from the Social Security Administration. The Board observes that the veteran has not been accorded a VA compensation and pension examination with regard to his claim, and that medical opinions regarding the etiology of the claimed disability have not been obtained. However, for reasons explained immediately below, such an examination and medical opinion are not necessary. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in initial service connection claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service; and (4) insufficient competent medical evidence on file for VA to make a decision on the claim. As will be discussed below, there is already medical evidence that the veteran currently has depression. The record is missing critical evidence of that an event, injury, or disease occurred in service, McLendon element (2), and the veteran's claim is being denied on that basis. The outcome of this case thus hinges on matters other than those which are amenable to VA examination and medical opinion. Specifically, resolutions of the claims of entitlement to service connection hinge directly or indirectly upon whether the veteran suffered an in-service injury or disease. That question cannot be answered via medical examination or opinion, but rather on evidence already in the file, in particular the veteran's service medical records and his post-service treatment records. As explained in greater detail below, the outcome of the claim of service connection hinges on what occurred, or more precisely what did not occur, during service. In the absence of evidence of in-service disease or injury, referral of this case for an opinion as to etiology would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's claimed disability and his military service would necessarily be based solely on the veteran's uncorroborated assertions regarding what occurred in service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. The facts of this case are different than the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case there is no credible, probative evidence of in-service disease or injury. Under the circumstances presented in this case, a remand ordering a medical examination would serve no useful purpose. Accordingly, the Board has determined that a medical opinion is not necessary in the instant case. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has declined to exercise his option of a personal hearing. Accordingly, the Board will proceed to a decision. Relevant law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Analysis In order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to Hickson element (1), current disability, the medical evidence indicates that the veteran was diagnosed with major depression in November 2002. Hickson element (1) has been satisfied. With respect to Hickson element (2), the veteran's service medical records do not indicate the presence of any psychiatric disability. His May 1969 separation physical examination was pertinently negative. The veteran contends that his mental condition simply deteriorated while he was in the military to the point where he attempted suicide by alcohol poisoning. See August 2004 hearing transcript, page 2. For reasons stated immediately below, the Board finds the veteran's account of depression developing during military service to be unbelievable. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Despite the veteran's recent reports of experiencing depression to the point of suicide during service, in his report of May 1969 report of medical history the veteran specifically indicated that he did not suffer from depression and that he had never had such a condition. Furthermore, the veteran specifically denied ever attempting suicide. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. It could be argued hat the veteran may have been reluctant to admit to psychiatric problems while he was still in military service. However, a review of his medical records indicates that he did not complain of depression until many years after service, and even then he related his depression to post- service causes. The first medical record of depression comes from M.J.D., M.D., in October 1988, nearly 20 years after the veteran left military service. In his hospitalization discharge report, Dr. M.J.D stated that the veteran was admitted for despondency due to financial trouble, family difficulties and stress from work. There was no indication that the veteran was suffering depression from any military events, and the veteran evidently did not then allege that his military service was causing him to be depressed. In January 1989 the veteran attempted to commit suicide by drug overdose. Psychological treatment records indicate that the veteran was "despondent because of his inability to obtain employment." See a statement of Dr. M.D. dated in January 1989. Additional records indicate that marital problems played a contributing role in this attempt. See a St. Joseph Hospital treatment record dated in January 1989. Medical treatment records from December 1989 to April 1990 indicate that the veteran's depression revolved around his fathers health and criticism from his supervisor. The veteran did not mention his military service during treatment. In 1998 the veteran attempted to commit suicide by drug overdose. Treatment records indicate that he responding to financial difficulties from no longer receiving workers compensation and being unable to obtain assistance from social services. Additional treatment records from July 1998 indicate that the veteran was bothered by family and social problems. There was no indication that the veteran's depression or accompanying suicide attempt was related to his military service. In May 1999 the veteran was treated for possible suicidal gestures. Mental health treatment notes indicate that the veteran's stressors included a positive workup for colon cancer, re-injuring his shoulder and social stress involving his ex-wife. Again, there was no mention of his military service. More recent records indicate that the veteran had some stress surrounding his employment status. See February 2003 VA treatment records. As noted above, the medical evidence indicates that the veteran's depression is a result of various post-service personal and financial problems. Significantly, the veteran has never complained about his military service while seeking medical treatment. Nor has any medical provider noted that his military service has impacted his depression in any way. Of interest, the veteran appears to have initially broached the theory that his depression directly to the RO in connection with his claim for service connection in September 2002. At that time, he sated: "I have suffered from depression since and during service." The veteran's statement, and subsequent statements to the same effect, is utterly contradicted by the medical documents of record, which show no treatment in or for two decades after service. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider a veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Shaw v. Principi, 3 Vet. App. 365 (1992) [a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim]. Indeed, it appears that the veteran relates his depression to service only in connection with his claim for monetary benefits from VA. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In support of his claim, the veteran has submitted several lay statements from J.T., his ex-wife. J.T. stated that the veteran returned from military service with an altered personality. J.T. described a 1971 suicide attempt. [Both the veteran and J.T. acknowledge that there is no objective record of this event.] The Board places greater weight on the utterly negative service medical records and post-service records than it does on recent statements made by J.T. and the veteran. See Curry v. supra; see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence]. By far the greater weight of the evidence supports the conclusion that the veteran's depression began many years after service. In short, the Board concludes that the veteran did not develop depression during service. Consequently, Hickson element (2) has not been met, and the veteran's claim fails on this basis alone. With respect to Hickson element (3), in the absence of an in- service disease or injury, it follows that a medical nexus is necessarily lacking. The evidence of record does not in fact include any medical statement linking the veteran's currently diagnosed depression to his military service over forty years ago. Indeed, as discussed above treating health care providers have uniformly ascribed the veteran's depression to his post-service personal problems, not to military service. To the extent that the veteran or J.T. contends that a medical relationship exists between the currently diagnosed depression and his military service, any such statements offered in support of the veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-5 (1992) see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. These statements are not competent medical evidence and do not serve to establish the existence of a medical nexus to service. The heart of the veteran's presentation is the contention that his depression began in service and continued thereafter. See his September 2002 statement, quoted above. A claim can still be substantiated if continuity of symptomatology is demonstrated after service. See Savage v. Gober, 10 Vet. App. 488 (1997); 38 C.F.R. § 3.303(b). However, as has been discussed above in connection with element (2), there was no psychiatric disability diagnosed in service, and the objective evidence of record establishes the onset of psychiatric symptoms two decades after service. Supporting medical evidence is required. See Voerth v. West, 13 Vet. App. 117, 120-1 (1999) [there must be medical evidence on file demonstrating a relationship between the veteran's current disability and the claimed continuous symptomatology, unless such a relationship is one as to which a lay person's observation is competent]. Such evidence is lacking in this case. Continuity of symptomatology after service is therefore not demonstrated. Accordingly, Hickson element (3) has not been met, and the veteran's claim fails on this basis as well. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for depression, as Hickson elements (2) and (3) have not been met. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for depression is denied. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs