Citation Nr: 0845116 Decision Date: 12/31/08 Archive Date: 01/07/09 DOCKET NO. 04-24 594A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for depression, also claimed as secondary to a service-connected dental condition. 2. Entitlement to service connection for esophagitis, also claimed as secondary to a service-connected dental condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1945 to February 1947. This matter is before the Board of Veterans' Appeals (Board) following a July 2008 October decision from the United States Court of Appeals for Veterans Claims (CAVC) remanding the Board's February 2006 decision, denying the veteran's claims for service connection of esophagitis and depression, both claimed as secondary to a service-connected dental condition, on the merits. This matter was originally on appeal from March 2003 and December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran had a hearing before the Board in March 2005 and the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008) and 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2008). The esophagitis issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. FINDING OF FACT The most probative and competent evidence does not indicate a link through causation or aggravation between the veteran's current depression and his service-connected dental osteomyelitis nor is there competent evidence that shows his depression is directly related to any remote incident of service. CONCLUSION OF LAW The veteran's depression was not incurred in or aggravated by service and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101 and 5107 (West 2002 and Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 and 3.310 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). The notice requirements were met in this case by letters sent to the veteran in September 2003, February 2004 and April 2005. Those letters advised the veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b) (2008). Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Ideally, the notice required by 38 U.S.C.A. § 5103(a) 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). That was not done in this case. However, the veteran still has the right to VCAA content complying notice and proper subsequent VA process, and that has been done, as discussed above. Any defect with respect to the timing of the VCAA notice requirement was harmless error. See Mayfield, supra. Although the notice provided to the veteran in 2003 was not given prior to the first adjudication of the claim, the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the claim was readjudicated and a SOC was provided to the veteran in May 2004 and a SSOC in October 2005. Not only has he been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Board, in a February 2006 decision, previously found the duty to assist satisfied because the veteran was afforded a medical examination in May 2005 to ascertain the extent and likely etiology for any psychiatric diagnoses rendered, to include whether the veteran's depression is secondary to his dental disability. Cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The CAVC, in a July 2008 decision, remanded the claim back finding the Board inadequately addressed whether the May 2005 psychiatric VA examination is in compliance with the 2005 Board remand order. That is, the remand order requested that a medical examiner opine whether it was "at least as likely as not" that the veteran's depression was caused by his service-connected dental disability or by any other dental disability of service origin. The medical examiner, in turn, opined that it was "more likely than not" that the veteran's depression is secondary to his frustration with VA. The Board is under a concomitant duty to ensure compliance with the terms of its remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Board finds the examiner's phrasing of "more likely than not" is in substantial compliance with the terminology requested by the Board. The remand order did not mandate the use of the phrase "at least as likely as not", but rather asked an inquiry of causation, which the examiner competently and thoroughly answered. This is explained in more detail below. The Board concludes additional remand to mandate specific language in an examination would serve no useful purpose. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The examiner's opinion is not ambiguous and his rationale is thoroughly explained in the examination report. Further examination or opinion, moreover, is not needed because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the veteran's military service. This is discussed in more detail below. Thus, the Board finds that VA has satisfied the duty to assist the veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). VA has satisfied its duties to inform and assist the veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a presumption, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Here, the veteran alleges his depression is related to his dental disability. More specifically, his periodontal disease resulted in the loss of all his teeth allegedly causing the veteran mental anguish. Where a disability is claimed as proximately due to or the result of a service-connected disease or injury, as is the case here, service connection may also be established on a secondary basis by a showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 8 Vet. App. 374 (1995). Initially, the Board acknowledges that the veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The veteran is currently service-connected for a dental disability, namely osteomyelitis. His service medical records confirm extensive dental treatment, but are silent as to any complaints, treatment or diagnosis of depression or any other psychiatric illness. Even if chronic conditions were not shown during service, however, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The crucial inquiry here is whether the veteran's depression is proximately due to or the result of his service-connected dental disability or any other remote incident of service. The Board concludes it is not. In support of his claim, the veteran submitted a private psychiatric evaluation dated November 2002 diagnosing the veteran with major depression. The private psychiatrist, Dr. Lozano, indicated the veteran had no prior psychiatric history. Regarding etiology, Dr. Lozano opined as follows: He is a 74-year-old gentleman, who has no prior psychiatric history. He does have an unresolved issue for many, many years with the VA, which at this time, his depression has been more prevalent in his mind, almost obsessively thinking about it and experiencing classical symptoms of depression at this point. The examiner, in rendering his opinion relied mostly on the veteran's reported history, which included his military history. The veteran focused on "getting the run around for over 28 years, with the VA administration" as well as "having lost all his teeth by age 20...." Although his dental disability was noted, the examiner found the veteran's depression due to his frustrations with the VA. The examiner did not indicate a causal connection between any incident of service and the veteran's diagnosed depression. The veteran also identified a December 2002 private psychiatric examination conducted by Dr. Gutman, a private psychiatrist. Dr. Gutman diagnosed the veteran with generalized anxiety disorder; psychological factors effecting general medical condition (GI complaint and conditions); and atypical depressive disorder. The veteran, within the examination, focused on his gastroesophageal reflux disorder (GERD) and the anxiety he had over his gastrointestinal (GI) conditions. Specifically, Dr. Gutman noted as follows: [The veteran] reports he was diagnosed with Barrett's Esophagitis in 1987. He had another endoscopy, it showed some changes but cancer is not suspected at this time; however, he is very worried that it will turn into cancer. This worry is causing him to feel miserable all of the time. Dr. Gutman also noted the veteran's frustrations with the VA, specifically, with not recognizing esophagitis as service- connected. From the record, it is not apparent Dr. Gutman relied on anything other than the veteran's self-reported history and his own observation. Even so, the Board finds compelling the veteran did not mention his dental disability during his psychiatric evaluation as a possible reason for his depression. The veteran was afforded a VA psychiatric examination in May 2005 where the examiner diagnosed the veteran with depression. With regard to etiology, the examiner opined as follows, "it is more likely than not that his depression is secondary to the ongoing and continuing frustration with the VA." The opinion is compelling because it is based on a complete psychiatric evaluation and a complete review of the claims folder. Also compelling, the evaluation indicates the veteran mentioned his dental disability and esophagitis, but overall focused on his anger at the VA "...because of all the lies that have been put in his record." The veteran was also afforded a VA dental examination in May 2005 regarding a different claim. Within the dental examination report, the examiner indicated the veteran's dental disability resulted in the loss of all his teeth, which "...caused psychiatric problems due to being young and edentulous." The Board in its prior February 2006 opinion discounted the dental opinion based on the fact that the examiner is a dentist and, therefore, had less qualified credentials to render an opinion regarding his psychiatric condition then the other medical opinions found in the record. The CAVC, in a July 2008 decision, remanded the Board's decision in part finding the Board did not adequately explain its basis for assigning limited probative value to the VA dentist's opinion and finding that the dentist was incompetent to render such an opinion. The May 2005 dental examiner is a medical doctor and thus is competent to render a medical opinion. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). The Board finds that the other medical evidence is far more probative for the following reasons. Initially, the dental examiner did not diagnose the veteran with a specific psychiatric disability. Rather, he merely opined that the veteran's "psychiatric problems" in general were caused by the veteran's dental disability. The May 2005 dental examination report, moreover, does not indicate the dental examiner reviewed the claims folder in rendering his opinion. Indeed, he later submitted a June 2005 addendum after reviewing the claims folder finding no causal connection between the veteran's dental disability and his chronic GI and cardiovascular problems. At that time, the dental examiner did not address the veteran's psychiatric diagnosis, but it is clear his prior May 2005 opinion was rendered without a review of the veteran's claims folder. Medical opinions based on incorrect or incomplete factual premise are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Additionally, although a dental medical doctor is competent to render a medical opinion, it is clear psychiatrists have far more work history and expertise in assessing psychiatric disabilities, to include causation. In this case, three psychiatrists attributed the veteran's depression to things other than his dental disability, to include his frustrations with the VA adjudication process and his GI conditions. The three opinions, moreover, were rendered after a complete psychiatric evaluation. The May 2005 dental opinion, on the other hand, was rendered after a dental examination. Indeed, the dental examiner does not indicate any rationale for his opinion. All clinical tests done in conjunction with the May 2005 dental opinion were dental in nature. The examination report does not indicate any psychiatric evaluation or other basis behind the examiner's opinion. In contrast, the three psychiatric opinions detail the rationale of their opinions. Their evaluation reports include psychiatric diagnostic testing. The opinions rendered by the VA psychiatrist, Dr. Lozano and Dr. Gutman are supported by a thorough psychiatric evaluation reports. The VA psychiatrist, moreover, indicated reviewing the claims folder in rendering his opinion and the opinion is consistent with the evidence in the claims folder. For these reasons, the Board finds the 2005 VA psychiatric examiner's opinion, coupled with Dr. Lozano and Dr. Gutman's opinions are far more probative than the 2005 VA dental examiner's opinion. In summary, the Board finds that the most probative and competent evidence of record does not show that the veteran's service-connected dental disability is responsible for his current depression. Indeed, the Board finds the most competent and probative evidence does not link the veteran's depression to any remote incident of service. The veteran's first psychiatric treatment is in 2002, over five decades after service. The treatment was done at the urging of his wife due to his frustrations and obsession with the VA adjudication process. Since that time, the most probative medical evidence attributes the veteran's psychiatric disability to issues unrelated to his active service or service-connected disability. Service connection, to include secondary service connection, requires competent medical evidence indicating that the condition is proximately due to or the result of active duty, to include a service-connected disease or injury. See 38 C.F.R. §§ 3.303, 3.304 and 3.310. The most probative evidence of record is against such a finding in this case. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claims, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for depression, also claimed as secondary to a service-connected dental condition, is denied. REMAND In a February 2006 decision the Board, in pertinent part, reopened the veteran's claim of entitlement to service connection for esophagitis, also claimed as secondary to a service-connected dental disability, and denied the claim on the merits. The RO, in its denial, declined reopening the claim finding no new and material evidence. In its July 2008 decision, the CAVC, citing Hyatt v. Nicholson, 21 Vet. App. 390, 396 (2007), remanded the claim back to the Board finding the Board's statement of reasons and bases with regard to the duty to assist inadequate because it failed to discuss how the duty to assist could have been fulfilled when it was never undertaken by the RO - since the RO had not reopened the claim. When the Board addresses an issue that was not addressed by the RO, consideration must be given to whether the veteran will be prejudiced by the Board's consideration of the issue in the first instance. In this case, the RO declined reopening the claim in a March 2003 rating decision where it clearly considered all new evidence and deemed it not material because it did not substantially raise the possibility of supporting his claim. The RO did not merely indicate a cursory explanation, but rather detailed the veteran's newly submitted evidence and explained why his claim would still not prevail. The claim was reviewed again and again in subsequent statements of the case. Under these circumstances, although characterized differently, the Board essentially reviewed the same evidence as the RO, but denied the claim on the merits. After the February 2006 decision, the veteran's representative presented argument before the CAVC essentially requesting AOJ review of the claim on the merits. Accordingly, whether there is prejudice, the claim must be remanded. The veteran alleges his esophagitis is either directly related to service or, in the alternative, is secondary to his service-connected dental disability. The Board denied the claim on the merits finding the most probative medical evidence indicated the veteran's esophagitis was not likely caused by any dental disease. Specifically, the veteran was afforded a dental examination in May 2005. The examiner, in a June 2005 addendum, indicated the veteran's dental disability (osteomyelitis and pyorrhea alveolaris) did not cause chronic gastrointestinal problems. The veteran, in support of his claim submitted private opinions from his private gastroenterologist, Dr. Styne, and his private neuro-radiologist, Dr. Bash. Dr. Styne in September and November 2002 statements indicated the veteran's reflux esophagitis with Barrett's esophagitis "is more likely than not to be connected with his pyorrhea." Dr. Styne also linked his esophagitis with gum disease in general. Dr. Bash, in November and December 2003 statements indicated he felt the veteran's "service reflux disease likely caused his current Barrett esophagus." The veteran is only currently service-connected for osteomyelitis (a dental disability). Dr. Styne's opinion linking the veteran's esophagitis to pyorrhea, therefore, is not determinative because the veteran is not service- connected for pyorrhea. Similarly, Dr. Bash's opinion linking the veteran's Barrett esophagus to reflux disease is not determinative because the veteran is not service- connected for reflux disease. On the other hand, Dr. Styne indicates in a September 2002 statement that the veteran's esophagitis is related to gum disease in general. Dr. Bash, similarly, does not show a causal connection between a dental disability and esophagitis, but does indicate there is evidence the veteran's reflux disease and Barrett esophagus were directly incurred in the military. The Board notes, the private statements alone are not dispositive because they are based on incomplete or inaccurate information. It is unclear what, if any, service medical records or other pertinent medical history Dr. Styne reviewed in proffering his opinion. Dr. Bash reviewed scarce service medical records, but for the most part, relied on the veteran's reported history in indicating the veteran's reflux began while in service. Medical opinions based on incomplete or incorrect factual premise are not probative. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Board notes, however, that the May 2005 dental examiner did not consider whether the veteran's esophagitis could directly be related to his military service. The medical evidence, in short, indicates contrasting opinions of whether the veteran's esophagitis may causally be related to a dental disability. There also exists some medical evidence of a direct relation to military service. Accordingly, the Board concludes the medical evidence is insufficient to reach a decision on this claim here and a new VA examination is indicated. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO should also take this opportunity to obtain recent VA outpatient treatment records from October 2005 to the present. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. Obtain the veteran's medical records from the VA Medical Center in Orlando, Florida from October 2005 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. After the above records are obtained, to the extent available, schedule the veteran for a gastrointestinal VA examination for the claimed esophagitis condition, also claimed as secondary to his service-connected dental osteomyelitis, to determine the extent and likely etiology of any gastrointestinal condition found, specifically commenting on whether the veteran's GI conditions have been caused or aggravated by his dental osteomyelitis. The examiner must also specifically render an opinion as to whether the veteran's esophagitis is a direct result of any incident of his military service. Pertinent documents in the claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation resolving any conflicting medical opinions rendered, significantly those of Dr. Styne, Dr. Bash and the May 2005 VA dental examiner. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. The RO should then readjudicate the veteran's claim on the merits. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The purposes of this remand are to complete the record, and to ensure due process. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The claims must be afforded expeditious treatment. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs