Citation Nr: 0814261 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-38 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for general anxiety disorder, not otherwise specified, to include as secondary to service-connected hemorrhoids with impairment of rectal sphincter control. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Fuller, Associate Counsel INTRODUCTION The veteran served on active duty from April 1958 to April 1960. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2005, the veteran cancelled a hearing at the San Juan RO scheduled for that month. The veteran has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702 (e) (2007). The veteran's appeal was previously before the Board in February 2007, at which time the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT General anxiety disorder is not etiologically related to service or service-connected disability. CONCLUSION OF LAW General anxiety disorder was not incurred in or aggravated by active military service and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2007). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Direct service connection may not be granted without 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. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non service-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). Analysis The veteran does not contend, nor does the evidence show, that his generalized anxiety disorder was incurred or aggravated during active military service. He contends that his generalized anxiety disorder is directly attributable to his service-connected disability of hemorrhoids with impairment of rectal sphincter control. Specifically, the veteran claims that since his unsuccessful hemorrhoid surgery in service, he has suffered from loss of sphincter control, which has caused him to experience insecurity, anxiety, depression and anger. See October 2004 statement. In this case, no competent evidence indicates that generalized anxiety disorder had its onset in service or was manifest to a compensable degree within one year of separation. Treatment records from the VA Medical Center in San Juan dating from 2001 show that the veteran had been diagnosed and treated for a generalized anxiety disorder, not otherwise specified. An October 2003 letter from the veteran's private physician, C. H. Torres, indicates that the veteran had been diagnosed with nervous conditions. A May 2004 opinion from H. L. Torres, MD contains a diagnosis of major depression generalized. The report of a February 2004 VA examination contains a diagnosis of anxiety disorder, not otherwise specified, and the April 2005 VA examination report contains a diagnosis of anxiety reaction. The competent evidence of record does not indicate that the veteran's generalized anxiety disorder was caused, in whole or in part, by the veteran's service-connected hemorrhoids with impaired rectal sphincter control. The February 2004 VA examiner opined that the veteran's anxiety disorder is not due to his service-connected condition and was not aggravated by his service-connected condition. In reaching this conclusion, the examiner noted that there is no evidence in the veteran's clinical history and mental status examination indicating that the veteran's anxiety disorder was precipitated or aggravated by his service-connected hemorrhoids with impairment of rectal sphincter control. The examiner also specifically noted that there is no evidence in the veteran's psychiatric treatment notes from August 1999 to October 2003 of any type of complaint regarding the veteran's gastrointestinal problems or hemorrhoids precipitating any type of psychiatric symptom. In a March 2005 VA opinion, a two-psychiatrist board, after reviewing the October 2003 statement from Dr. C.H. Torres, the May 2004 statement from Dr. H. Torres, VA treatment records dated from August 2002 to February 2005, and the February 2004 VA examination report, opined that there is no objective evidence to establish that the veteran's anxiety disorder is the direct physiological consequence of his service-connected medical condition. The opinion also noted that there is no objective evidence to establish that the veteran's anxiety disorder was precipitated by the medical condition acting as a psychosocial stressor and therefore, the veteran's anxiety disorder is not caused by or a result of his service-connected hemorrhoids with impairment of rectal sphincter control. In an August 2006 VA opinion, the examiner, after reviewing the veteran's entire C-file, opined that there is no basis to sustain any relationship/etiological, causal or otherwise, between the veteran's service-connected hemorrhoids as the cause for development of an anxiety disorder. The examiner noted that when making his initial claim for service connection for mental disorder and when evaluated during VA examinations subsequent to his initial claim, the veteran did not claim that his hemorrhoids were the origin or cause of his nervous condition. Instead, the examiner noted that the veteran reported different GI symptoms, including rectal bleeding as being increased when he was under stress or excessively anxious, and based on these symptoms, he was diagnosed as having a psychopysiological GI reaction. The examiner also noted that on different occasions, the veteran reported experiencing occasional nervousness since childhood and gastrointestinal problems before entering military service. See 1957 Quadrennial Examination, April 1958 Induction Examination and December 1962 GI Examination. In March 2007, the same physician who provided the August 2006 opinion opined that there is no evidence of aggravation of the veteran's mental disorder that is related to his present service-connected condition. The examiner again noted that the veteran's treatment records show that the complaints given by the veteran have been mostly of how his gastrointestinal system reacted when he became anxious, nervous or tense for any given reason, and that is why the diagnosis established in all of his initial psychiatric examinations was that of a psychophysiologic GI reaction, referred to in the currently used DSM IV Manual as psychological factors affecting medical condition. This means that the veteran's nueropsychiatric condition will affect/increase/aggravate his gastrointestinal symptoms. The examiner also noted that there is practically no mention in the progress notes of any complaints made by the veteran in relation to his service-connected condition of hemorrhoids, and even less mention of fecal incontinence which he has referred to in the VA examinations. Finally, the examiner noted that the VA outpatient psychiatric treatment records show that there has been no significant change or any evidence of aggravation of the veteran's condition of anxiety that is related to his hemorrhoids. Instead, the veteran's treatment has been maintained mostly unchanged and the notes reflect more on family-related issues and the veteran's loneliness because of his lack of a female companion or girlfriend. In support of his claim, the veteran has submitted the above- referenced October 2003 statement from C.H. Torres, MD, in which Dr. Torres states that the veteran has several gastrointestinal conditions that interfere with his daily life activities and aggravate his nervous conditions. In addition, he has submitted the afore-mentioned May 2004 opinion from Dr. H.L. Torres, in which Dr. Torres opines that the veteran's major depression is related and secondary to his anal condition. The Board also notes that the April 2005 VA examiner opined that the veteran's diagnosed anxiety reaction is secondary to his service-connected hemorrhoids with impaired rectal sphincter control. The Board finds that the medical opinions of C.H. Torres, MD and H.L. Torres, MD are of minimal probative value because the physicians did not provide a rationale for their opinions. Nor did they indicate what records, if any, they had reviewed. Because they did not include the basis for their opinions, the Board is unable to evaluate them and to assign it more than minimal probative weight. The Board also finds the April 2005 VA opinion to be of limited probative value because the examiner relied on the oral history reported by the veteran and did not provide a rationale for his opinion. The only other evidence of a nexus between the veteran's current anxiety disorder and his service-connected hemorrhoids with impairment of rectal sphincter control is the veteran's statements, but this is not competent evidence of the alleged nexus since he does not have the medical expertise to render an opinion concerning medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The preponderance of the evidence is against the claim. Accordingly, the claim should be denied. 38 U.S.C.A. § 5107 (West 2002). Duties to Notify and to Assist Claimants VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that in January 2004, prior to the initial adjudication of the claim, and in April 2006, the veteran was provided with the required notice, to include notice that he submit any pertinent evidence in his possession. The Board notes that, even though the letters requested a response within 60 days, they also expressly notified the veteran that he had one year to submit the requested information and/or evidence, in compliance with 38 U.S.C.A. § 5103(b) (evidence must be received by the Secretary within one year from the date notice is sent). The veteran was provided the specific notice required by Dingess v. Nicholson, 19 Vet. App. 473 (2006) (as the degree of disability and effective date of the disability are part of a claim for service connection, VA has a duty to notify claimants of the evidence needed to prove those parts of the claim) in the April 2006 letter, as well as subsequent documents. The Board acknowledges that this was after the unfavorable rating decision that is the subject of this appeal, but concludes that the timing of the notice does not prejudice the veteran in this instance, as service connection has been denied. Hence, matters concerning the disability evaluation and the effective date of an award do not arise here. Finally, the Board notes that veteran's service medical records and all other pertinent available records have been obtained in this case. In addition, the veteran has been given appropriate VA examinations, and VA medical opinions were obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the denied claim. The Board is also unaware of any such outstanding evidence. After providing the required notice and completing all indicated development of the record, the originating agency readjudicated the veteran's claim. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were not prejudicial to the veteran. ORDER Service connection for general anxiety disorder, not otherwise specified, to include as secondary to service- connected hemorrhoids with impairment of rectal sphincter control is denied. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs