Citation Nr: 0814163 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-33 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a final disallowed claim for service connection for major depression and if so whether service connection is warranted. 3. Entitlement to an increased rating greater than 10 percent for residuals of head trauma including recurrent headaches. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant; Appellant's Mother ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from March 1980 to June 1987. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a right knee disorder and for major depression; and that denied an increased rating greater than 10 percent for residuals of head trauma including recurrent headaches. The veteran testified before the Board by videoconference from the RO in October 2007. A transcript of the hearing is associated with the claims file. In correspondence in December 2004, the veteran stated that he desired to submit a claim for compensation under 38 U.S.C.A. § 1151 for injuries to his right knee as a result of VA surgical procedures and post-surgical examinations. The claim is referred to the RO for further development and adjudication as appropriate. The issue of service connection for a right knee disorder and for an increased rating for residuals of head trauma is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. FINDINGS OF FACT 1. In November 1997, the RO denied service connection for a nervous disorder, claimed as depression and memory loss, because service and post-service medical records showed no competent medical diagnosis of any chronic neuropsychiatric disorder. In October 1998, the RO denied a petition to reopen the claim because no new and material evidence had been received to show a diagnosis of any chronic disorder. The veteran did not perfect a timely appeal and the decision became final. 2. Since October 1998, new and material evidence has been received that was not previously considered by adjudicators, is not cumulative, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The veteran's major depression first manifested many years after service, and is not related to any aspect of service including to residuals of a head injury. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a final disallowed claim for service connection for major depression. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(a), 20.302 (2007). 2. The criteria for service connection for major depression have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence 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 claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). With respect to a petition to reopen a claim, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006) Here, the RO sent correspondence in July 2003, which informed the veteran of the information and evidence required to substantiate the claim and which also informed him of the information and evidence VA was to provide and which the veteran was to provide. While the letter did not explicitly ask that the appellant provide any evidence in his possession that pertains to the claim, he was advised of the types of evidence that could substantiate his claim and to ensure that VA receive any evidence that would support the claim. Logically, this would include any evidence in his possession. The veteran was not advised of the bases for the previous denial. However, as the Board will grant the petition to reopen the claim, any notice deficiency in this regard is not prejudicial. The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to the following five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA is to 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 appeal, the veteran was provided with this notice in April 2007. While the RO's letter was issued after the rating decision, the Board finds that any defect with respect to the timing of the VCAA notice requirement is harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board notes that the Court specifically stated in Pelegrini that it was not requiring the voiding or nullification of any action or decision, only finding that appellants are entitled to a content-complying notice. Thus, the timing of the notice does not nullify the rating action upon which this appeal is based and the Board specifically finds that the veteran was not prejudiced by the post-decision notice because he was given sufficient time to submit and/or identify any and all evidence necessary to substantiate the claims. Furthermore, as the Board concludes that the preponderance of the evidence is against the appellant's claim for service connection for major depression, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. Accordingly, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran served in the U.S. Navy as an aviation electrician's mate. He contends that his major depressive disorder is secondary to service-connected residuals of head trauma sustained in service. In November 1997, the RO denied service connection for a nervous disorder, claimed as depression and memory loss because service and post-service medical records showed no competent medical diagnosis of any chronic neuropsychiatric disorder. In October 1998, the RO denied a petition to reopen the claim because no new and material evidence had been received to show a diagnosis of any chronic disorder. The veteran expressed timely disagreement in November 1998, and the RO provided a statement of the case in December 1999. The veteran did not perfect a timely appeal and the decision became final. 38 U.S.C.A. § 7105 (b)(1). The veteran submitted a petition to reopen the claim in July 2003. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is existing evidence not previously submitted to agency decision makers. Material evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In evaluating an application to reopen a claim for service connection, the Board examines the evidence submitted since the last final disallowance of the claim. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of the new and material evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Since October 1998, the RO received written statements from the veteran, hearing testimony by the veteran and his mother, and VA mental health treatment records. This evidence is discussed in detail below. In September 2003, the RO reopened the claim for service connection for major depression but denied the claim on the merits. The Board concludes that the evidence was new as it had not been previously considered by VA adjudicators. The evidence is material because it contains competent medical diagnosis of a chronic psychiatric disorder and lay evidence that indicates a possible relationship to events in service and raises a reasonable possibility of substantiating the claim. Therefore, and to this extent only, the Board grants the petition to reopen a final disallowed claim for service connection for major depression. The Board will proceed to adjudicate the appeal on the merits. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) Service medical records are silent for any psychiatric symptoms, examination, or treatment in service. However, an examiner noted on one occasion in August 1984 that the veteran was experiencing emotional stress related to domestic issues and a positive serum virus test. In September 1994, the veteran sought treatment for nervousness and a depressed mood from a VA clinic in Texas. An examiner noted the veteran's reports of marital and financial distress. He reported having worked as an avionics technician since service but had recently lost his job when his employer went out of business. He also reported difficulty sleeping for the previous three years with some suicidal thoughts. The examiner diagnosed depressed mood and possible alcohol withdrawal symptoms. The examiner prescribed medication. In several follow-up appointments through November 1994, the veteran reported that his marital problems were resolving and that he had avoided alcohol use. However, in May 1995, the examiner noted that the veteran had returned and reported that his wife had left the marriage, that he had custody of his small child, and that he experienced depression again and needed stronger medication. The veteran did not report chronic headaches or make any reference to events in service. In June 1997, a VA mental health examiner at a facility in Puerto Rico noted the veteran' reports of a head injury in service and a history of irregular employment. The examiner noted that the veteran was not receiving on-going psychiatric treatment, that he had recently experienced a divorce and separation from his child, and that he was living with his mother. The examiner diagnosed no mental disorder. In July 1998, a VA examiner noted the veteran's reports of a head injury in service in 1982 and that he currently experienced severe headaches four to five times per week, lasting several hours and interfering with sleep. The examiner found no neurological deficits and diagnosed post- traumatic headaches. He did not note any mental health symptoms or recommend any mental health examination. However, in September 1998, the veteran again sought treatment for sleeplessness, anxiety, and depression. A VA examiner noted the veteran's reports of recurrent headaches following a head injury in service. The veteran also reported sadness related to divorce and child custody legal actions. The veteran was prescribed anti-depression medication, but there is no record of follow-up counseling or mental health care. In a July 2003 VA primary care new patient screening at a facility in Florida, a psychiatrist noted the veteran's reports of head trauma in service, recurrent headaches, and difficulty sleeping. The veteran also reported experiencing helplessness and depression for the previous few years. The veteran screened positive for recurrent, moderate, major depression and post-traumatic stress disorder. The veteran reported non-military sexual trauma after service. Upon being seen in a psychiatry consult the same day, the staff psychiatrist diagnosed him as having major depression, recurrent. In August 2003, a VA mental health examiner noted a review of the claims file and the history of a head laceration in service and the veteran's marital, financial, and employment difficulties, including multiple short term jobs since discharge from service. The veteran was currently unemployed, living with his mother, and caring for his small child. The examiner did not comment on any specific physical disability that prevented employment and noted that the veteran also could not explain why he was unable to hold a job. The examiner did note that the veteran experienced sleeplessness, feelings of helplessness, and depressed mood. The examiner diagnosed major depression and prescribed anti- depression medication. There is no record of subsequent regular counseling or mental health treatment. In a February 2006 letter, the veteran stated that he was using several medications for pain associated with disorders of the knee, back, and recurrent headaches. He also stated that he was under emotional strain from caring for a teenage daughter and elderly mother. In an October 2007 hearing, the veteran stated that he started experiencing mental health difficulties about two years after discharge from service. He reported that a private physician in Texas may have known about his depression but that he primarily received psychiatric care from a VA clinic. The veteran also reported that he had received treatment with medication but no counseling from clinics in Puerto Rico and Florida. He further stated that he experienced some short term memory loss, that the prescribed medication was not effective, and that he intended to seek another appointment for mental health treatment. The veteran's mother stated that her son experienced chronic sleeplessness, crying spells, and pain from physical disabilities, and that the family was in significant financial distress. Regrettably, the Board concludes that service connection for major depression is not warranted because psychiatric symptoms first manifested not earlier than 1994, many years after service, and is not related to any aspect of service or to the service-connected residuals of head trauma. There is no evidence of any mental health symptoms or treatment in service. Examiners in 1994 and in 1997 attributed the veteran's depression to marital and financial difficulties. All mental health examiners since 1998 acknowledged awareness of the veteran's head injury in service and his recurrent headaches. However, these examiners also directly related the veteran's depressive symptoms to domestic and financial stress. The Board acknowledges that the veteran and his mother have a sincere belief that the veteran's depression is related to his service and nonservice-connected physical disorders, but the Board places greater probative value on the reports of mental health practitioners. As laypersons, the veteran and his mother do not possess the necessary knowledge of medical principles, and their assertions, standing alone, are not probative as to the etiology of his current mental health symptoms. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The weight of the credible evidence demonstrates that the veteran's current major depression first manifested many years after service and is not related to his active service or to residuals of a head injury. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The petition to reopen a final disallowed claim for service connection for major depression is granted. Service connection for major depression is denied. REMAND In the opinion of the Board, additional development of the claim for service connection for a right knee disorder and for an increased rating for residuals of head trauma is necessary. In October 1982, the veteran sought treatment in service for trauma to the right lower leg. An examiner noted the veteran's report of having fallen off an aircraft [while performing maintenance]. The examiner noted that there was edema, a normal range of motion, and that the leg bore weight without difficulty. The examiner noted a superficial abrasion of two centimeters on the shin with a contusion and cleaned the affected area. A series of leg X-ray views of the tibia and fibula showed no fractures or osseous abnormalities. The veteran was returned to duty with instructions to apply ice and watch for signs of infection. In November 1985, the veteran sought treatment for multiple contusions and abrasions sustained in a motorcycle accident in which he reported being thrown chest first into a chain link fence. An examiner noted the veteran's reports of pain in the ribs, right ankle, and left flank, leg, and elbow. There was no complaint or examination of the right knee and no X-rays of any joint. The veteran was prescribed bed rest for 18 hours and analgesic medication and was then returned to duty. In March 1983 and March 1984 reenlistment examinations and in a June 1987 discharge examination, the veteran reported that he continued to experience a "trick" or locked knee. He noted that he sustained a knee injury (side not specified) in a motorcycle accident in 1971. The examiner noted an occasional dislocated patella in childhood without problems in the previous eight years. None of the examiners noted a right knee deficiency. In April 2003, the veteran sought treatment at a VA clinic for increasing pain in the right knee over the previous several years. The examiner noted the veteran's reports of an injury in a motorcycle accident over thirty years earlier. An X-ray showed no fractures or dislocations and well preserved joint spacing but there was a calcific density indicating a possible free body in the knee. The same finding was noted on a magnetic resonance image in July 2003. In a July 2003 letter, the veteran stated that he injured his right leg in 1982 when he fell from an aircraft canopy rail. He stated that after the fall he was unable to walk and that his leg remained stiff for several days and painful for several weeks. He further stated that he had occasional problems with his knee since that time and that the pain had recently become more severe. In August 2003, a VA examiner noted a review of the claims file and the veteran's report that he fell and hurt his right knee in service in 1982. The examiner made no comment on any specific service medical record of treatment or examination. In a December 2004 letter, the veteran stated that he received primary and surgical care from VA earlier that year. Records of this treatment are not in the claims file and are necessary to decide the claim. Records of follow-up examination and surgery from a private orthopedic physician are in the file. Although the physician noted the veteran's report of a 1982 injury, he did not review the service medical records or provide an opinion whether the fall in 1982 was the origin of the veteran's current knee disorder. In an October 2007 Board hearing, the veteran stated that he continued to experience pain, swelling, and instability of his right knee. The veteran has a currently diagnosed knee disorder and there is medical evidence that he injured his right leg in a fall in service in 1982. Even though service medical records do not show a specific injury to the knee in 1982 or in a motorcycle accident in 1985, the veteran's lay statement that he experienced knee discomfort following the fall is competent evidence of observable symptoms and suggests a relationship between the current disorder and an event in service. Therefore, a medical opinion of the etiology of the disorder is necessary to decide the claim. 38 C.F.R. § 3.159 (c) (4). The veteran received a one and one-half inch laceration of the scalp in April 1983. The injury required several sutures but there was no record of loss of consciousness or neurological deficit. In November 1997, the RO granted service connection and a 10 percent rating for post-injury complaints of headache and insomnia and resultant mild impairment of occupational and social function under 38 C.F.R. § 4.124a, Diagnostic Code 8024 and 38 C.F.R. § 4.129, Diagnostic Code 9304. In the most recent examination in August 2003 for residuals of a head injury, a VA examiner noted that the veteran reported experiencing headaches about four to five times per week. The examiner noted that the symptoms did not appear on a primary care problem list and that no testing for or diagnosis of migraine headaches had been made. In an October 2007 Board hearing, the veteran stated that his severe headaches induced dizziness, vomiting, short term memory loss, insomnia, and unsteadiness of his hands. He stated that he experienced severe headaches up to once or twice per day, lasting up to one and one-half hours, and that he had been prescribed morphine for the disorder. The Board concludes that a current examination is necessary to decide the claim. The last examination is over four years old and did not include testing or examination for migraine headaches or neurological deficits. Furthermore, the veteran has provided competent lay evidence that his current observable symptoms and medications are significantly more severe than were noted by the last examiner in 2003. Accordingly, the case is REMANDED for the following action: 1. Schedule the veteran for an examination of his right knee. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner specifically note the occurrence and subsequent treatment for injuries in October 1982 and in November 1985 as well as the results of physical examinations in 1983, 1984 and 1987. Request that the examiner provide an evaluation of the veteran's current right knee disorder and provide an opinion whether any disability of the right knee is at least as likely as not (50 percent or greater possibility) related to exposure to any injury in service or any other aspect of service. 2. Schedule the veteran for an examination of the residuals of a head injury including recurrent severe headaches. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner report in detail all residuals of the head injury and the severity of all residuals found. The examiner should specifically comment on whether the veteran has migraine headaches and, if so, whether they are related to or aggravated by the service-connected head injury. 3. Then, readjudicate the claim for service connection for a right knee disorder and an increased rating for residuals of a head injury. If the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs