Citation Nr: 0813504 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-32 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for depression, claimed as secondary to service-connected disabilities. 2. Entitlement to service connection for depression, claimed as being directly due to service. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Air Force from August 1980 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which, in part, denied service connection for TDIU and depression on a direct and secondary basis. The veteran testified at a Travel Board hearing which was chaired by an Acting Veterans Law Judge at the Little Rock RO in September 2006. A transcript of the hearing has been associated with the veteran's VA claims folder. The Acting Veterans Law Judge who conducted the September 2006 hearing is deceased. Correspondence was sent to the veteran in February 2008 inquiring whether he desired a new Board hearing in conjunction with this appeal. In pertinent part, the correspondence stated that if the veteran did not respond within 30 days from the date of the letter, the Board would assume he did not want an additional hearing. As no response to this correspondence was forthcoming, the Board assumes he does not want an additional hearing. Clarification of issues The veteran is currently seeking entitlement to service connection for depression on both a direct and a secondary basis. While the RO adjudicated this as one issue, the Board is bifurcating the claim into two separate issues. As explained in detail below, additional evidentiary development is required prior to adjudication of the veteran's claim of entitlement to service connection on a direct basis. Remanded issues The issues of entitlement to service connection for depression on a direct basis and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. Issues not on appeal In the above-mentioned September 2006 rating decision, the RO denied increased disability ratings for the veteran's service-connected lichen nitidus, left knee injury residuals, right knee strain residuals and low back strain. The veteran has not, to the Board's knowledge, expressed dissatisfaction with those decisions. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. The veteran has been diagnosed as having major depressive disorder. 2. The veteran's service-connected disabilities include lichen nitidus, left knee injury residuals, right knee strain residuals and low back strain 2. The competent medical evidence of record does not indicate or suggest any nexus exists between the veteran's depression and his service-connected lichen nitidus, bilateral knee disabilities and/or low back strain. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for depression secondary to service-connected disabilities is not warranted. 38 C.F.R. § 3.310(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Entitlement to service connection for depression, claimed as secondary to service-connected disabilities. The veteran seeks entitlement to service connection for depression as secondary to his service-connected disabilities (lichen nitidus, bilateral knee disabilities and low back strain). As is discussed elsewhere in this decision, the issue of entitlement to service connection for depression on a direct basis and TDIU are being remanded for additional development 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 secondary service connection in a letter from the RO dated November 24, 2004. Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced November 2004 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 medical centers (including private facilities where VA authorized treatment), or 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 November 2004 letter further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original letter.] The Board notes that the November 2004 letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." 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. Finally, 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. The veteran was provided specific notice of the Dingess decision in a March 20, 2006 letter which detailed the 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 March 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 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. 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 outpatient medical records and provided the veteran with several VA examinations. 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 exercised the option of a personal hearing and was afforded one in September 2006 as detailed in the Introduction. Accordingly, the Board will proceed to a decision. Relevant law and regulations Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2007); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Analysis In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). With respect to Wallin element (1), the medical evidence establishes that the veteran has been diagnosed with major depressive disorder. See, e.g., a March 2002 VA treatment note. With respect to Wallin element (2), the veteran has been service-connected for lichen nitidus, bilateral knee disabilities and low back strain. With respect to crucial Wallin element (3), medical nexus, the only competent medical opinion of record is that of the January 2005 VA examiner, who reviewed the veteran's claims folder, interviewed the veteran and determined that the veteran's depression was not secondary to his service- connected disabilities. The veteran has not submitted any evidence to the contrary; the above mentioned VA examiner's opinion is the only medical opinion in the record that addresses the relationship between his service-connected disabilities and his depression. As was explained in the Board's VCAA discussion above, the veteran has been accorded ample opportunity to submit evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2002) [the claimant has a responsibility to support a claim for VA benefits.] To the extent that the veteran himself contends that a medical relationship exists between his depression and his service-connected disabilities, his lay opinion is entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-5 (1992) Any such statement offered in support of the veteran's claim by him does not constitute competent medical evidence and cannot be accepted by the Board. See also Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In short, the preponderance of the competent and probative evidence of record indicates that the veteran's depression is not related to his service-connected disabilities. Accordingly, Wallin element (3), medical nexus, has not been satisfied, and the claim fails on this basis. Conclusion In sum, 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 secondary to service-connected lichen nitidus, left knee injury residuals, right knee strain residuals or low back strain. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for depression, claimed as secondary to service-connected disabilities, is denied. REMAND After having carefully considered the matter, and for reasons expressed immediately below, the Board believes that the remaining two issues must be remanded for further evidentiary and procedural development. 2. Entitlement to service connection for depression, claimed as being directly due to service. In order to establish service connection for a lower back disability 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). In this case, the evidence of record contains a current diagnosis of depression. See, e.g., a January 2005 VA examination report. Further, the veteran's service medical records indicate that he was diagnosed with situational anxiety, depression and insomnia in March 1984. Under these circumstances, a medical nexus opinion must be obtained. See Charles v. Principi, 16 Vet. App. 370 (2002) [where there is evidence of record satisfying the first two requirements for service connection (current disability and in-service disease or injury), but no competent medical evidence addressing the third requirement (a nexus between the current disability and active service), VA must obtain a medical nexus opinion]; see also 38 C.F.R. § 3.159(c)(4) (2007) [a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim]. 3. Entitlement to TDIU. The veteran's claim of entitlement to service connection for depression is inextricably intertwined with his TDIU claim. In other words, if service connection for depression is granted, this may impact the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) [two or more issues are inextricably intertwined if one claim could have significant impact on the other]. Action on the veteran's TDIU claim is therefore deferred. Accordingly, the case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA should arrange for a physician with appropriate experience to review the veteran's VA claims folder and provide an opinion, with supporting rationale, as to whether the veteran's depression is related to his military service. If the reviewing physician finds that examination of the veteran and/or diagnostic testing is necessary, such should be accomplished. A report should be prepared and associated with the veteran's VA claims folder. 2. VBA should then readjudicate the veteran's claim of entitlement to service connection for depression on a direct basis as well as the TDIU claim. If the benefits sought on appeal remain denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs