Citation Nr: 1007430 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 07-26 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a psychiatric disorder, to include anxiety and depression, and to include as secondary to the Veteran's service-connected right knee and right hip conditions. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 2000 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Togus, Maine, Regional Office (RO) of the Department of Veterans Affairs (VA). The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) was considered in a March 2006 rating decision and, as the Veteran failed to appeal the decision within a year, the decision is final. Therefore, the Board will not include PTSD in its evaluation for this claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). FINDINGS OF FACT 1. The Veteran is service-connected for a right knee and right hip conditions. 2. The probative evidence of record shows that the Veteran's psychiatric disorders are not due to any event or incident of the Veteran's period of active service, and were not caused or aggravated by his service-connected right knee and right hip condition. CONCLUSION OF LAW The Veteran is not shown to have a psychiatric disorder due to disease or injury that was incurred in or aggravated by service; nor are they shown to be proximately due to or the result of service-connected right knee and right hip condition. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353- 23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). 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 evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), 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; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in September 2006, prior to the date of the issuance of the appealed November 2006 rating decision. VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claim adjudicated in this decision. The RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment for the claimed disorders described by the Veteran. At the hearing, the record was held open for 30 days to allow the Veteran the opportunity to submit additional evidence. The Veteran's representative submitted additional VA treatment records with a waiver of initial RO consideration of that evidence. Review of the record shows that it contains numerous VA treatment records from the Togus VA Medical Center dated from 2006 to 2009. In additional there are of record private treatment records and the records of the Social Security Administration. It appears therefore, all available pertinent medical evidence has been obtained and added to the record. Additionally, the Veteran was afforded a VA examinations in October 2006 and January 2008 that were fully adequate for the purposes of determining whether the Veteran's psychiatric disorders were related to his service-connected right hip and right knee conditions. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required 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, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service- connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (2005); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). (The Board notes the changes to 38 C.F.R. § 3.310 effective in October 10, 2006, but finds the previous version of 38 C.F.R. § 3.310 potentially more favorable to the Veteran). In order to establish a service connection for the claimed disorder, there must be (1) a current disability; (2) medical or, in certain circumstances, lay evidence of the 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 relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007) In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background The Veteran asserts that his psychiatric disorders are secondary to or aggravated by his service-connected right knee and right hip conditions. The Veteran's service medical records show no diagnoses of, or treatment for, mental or psychiatric disabilities. The Veteran's examination upon induction, dated in September 2000, revealed no psychiatric abnormalities. Subsequent in- service treatment notes similarly showed no psychiatric abnormalities. Post-service medical records reflect treatment for various psychiatric disorders since at least July 2002 when the Veteran was admitted to Queen's Medical Center. Treatment notes from Castle Medical Center dated in December 2002 noted a diagnosis of psychotic disorder, not otherwise specified (NOS) and noted that the Veteran experienced auditory hallucinations and suicidal ideation. Treatment notes also reported that the Veteran had used crystal methamphetamines daily until a week prior to admission. In October 2006, the Veteran was afforded a VA examination, it was noted that the Veteran's claims file was reviewed. The examiner stated that the Veteran had a long psychiatric history going back to his childhood. The examiner reported that the Veteran had problems with methamphetamines and marijuana but had stopped using such substances. The Veteran stated that he had been out of work for three years and attributed his inability to work to his mental health problems and his injured leg. Mental status examination revealed that the Veteran's behavior was often inappropriate in that he became angry with others on a chronic basis. The Veteran denied suicidal or homicidal thoughts on the day of examination, but stated that he had had these thoughts in the past. The examiner provided a diagnosis of psychotic disorder NOS and cognitive disorder NOS. The examiner stated that it did not appear that the Veteran's service-connected right knee and hip conditions caused the Veteran's psychotic or cognitive disorders. The examiner further stated that it was probable that the Veteran's chronic pain in the leg and hip aggravated the Veteran's depressive symptoms, but due to the complexity of the Veteran's history and presentation, it was not possible to quantify the extent of that aggravation. The record contains VA treatment records dated from 2006 t0 2009. In October 2006 treatment notes from the VA medical center in Augusta, Maine (Augusta VAMC), the Veteran stated that his painful hip affected his mood and that he felt depressed about various issues including chronic right knee pain and his concern for family members in Hawaii after an earthquake. Treatment notes from the VA medical center in Togus, Maine (Togus VAMC), noted that the Veteran walked into the mental health clinic with complaints of thoughts of killing his community-based psychiatrist and cutting himself. It was noted that the Veteran had run out of his medication five days prior and that he had had trouble sleeping. The Veteran was hospitalized at the time for stabilization of mood and thought. A diagnosis of psychosis NOS was provided and it was stated that this was most likely secondary to past methamphetamine and cannabis use. January 2007 treatment notes from the Augusta VAMC noted that the Veteran had had suicidal ideation but that he was unable to identify a precipitant other than running out of medications. Additional January 2007 VAMC treatment notes stated that the among the Veteran's main recent stressors were increased attempts by his father to control his affairs and having run out of medication. Treatment notes from the Togus VAMC dated in December 2007 noted that the Veteran reported having been "depressed since birth" and had had multiple hospitalizations for suicide attempts between 1996 and 2007. A diagnosis of depressive disorder NOS and polysubstance dependence was provided. The Veteran had a second VA examination in January 2008. It was noted that the Veteran's claims file was reviewed prior to the examination. The Veteran reported having erratic sleep and reported problems with his right knee and hip. The Veteran stated that at times he felt depressed but that he believed that this was situational due to him not having his own place to live. The Veteran additionally stated that he received monthly testosterone which caused him to feel better and have more energy after his injection but he stated that he felt down and lost energy towards the end of the month. The examiner provided diagnoses of schizoaffective disorder, depressed type, and opiate abuse. The examiner further stated that the Veteran's service-connected right knee and hip condition had not permanently aggravated his psychiatric condition. He stated that the Veteran's psychiatric conditions were life- long and that the Veteran's service-connected condition had minimal impact on his day-to-day functioning. The examiner stated that the Veteran's physical limitations and pain were minimal, and further stated that the Veteran could walk miles at a time and go to the gym. The examiner opined that the Veteran's service-connected conditions did not affect the Veteran's social or vocational functioning or his mood. Treatment notes dated in August 2008 show that the Veteran reported that he had been anxious and had had panic attacks due to the anniversary of his mother's death. It was noted that the Veteran felt more comfortable than in the past as he had his own apartment. VA mental health treatment records dated from August to November 2009 include entries by a VA Mental Health Clinical Social Worker who noted that the Veteran presented with a history of depression and anxiety which are directly related to his ongoing medical issues. Records of the Social Security Administration show that it was determined that the Veteran had severe impairments which included depression, anxiety, a knee disorder and obesity. A December 2005 Disability Determination noted a primary diagnosis of mood disorders and a secondary diagnosis of migraine. A March 2008 letter from the Veteran's attorney regarding his Social Security disability claim indicated that his disabilities included Kliefelter's syndrome, migraine headaches, a left knee disorder, sciatica, right hip bursitis, post-traumatic stress disorder, depressive disorder and asthma. Analysis The Board does not find the Veteran's psychiatric disorders to be related to the Veteran's service, or proximately due to or aggravated by his service-connected right hip and right knee conditions. As stated above, in order to establish a service connection for the claimed disorder, there must be (1) a current disability; (2) medical or, in certain circumstances, lay evidence of the 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, 12 Vet. App. at 253. In this case, while the Veteran clearly has a current diagnosis for a number of psychiatric disorders, to include anxiety and depression, the evidence of record has failed to show either an in-service incurrence or aggravation of a psychiatric disorder or a medical opinion which links the psychiatric disorders in question to service. The Veteran's service treatment records are silent as to any psychiatric disorders and the claims file contains no opinion which relates the psychiatric disorders in question to service. The Veteran's claim for entitlement to service connection for anxiety or depression on a direct basis must therefore be denied. Regarding the Veteran's claim for psychiatric disorders on a secondary basis as due to or aggravated by the Veteran's service-connected right hip and right knee conditions, the Board finds the Veteran's claim must de denied.. According to 38 C.F.R. § 3.310, a disability which is proximately due to or aggravated by a service-connected disease shall be service connected. In this case, the Veteran's treatment records reported that the Veteran had stated that he had been depressed "since birth" and that he had been treated for psychiatric symptoms before service. The origin of the Veteran's psychiatric disorders cannot, therefore, be the Veteran's service-connected right hip and right knee conditions, and thus, the evidence has shown that the Veteran's psychiatric disorders are not proximately due these service-connected conditions. In order to establish service connection on a secondary basis, the evidence must therefore show that the Veteran's service-connected right hip and right knee conditions aggravated his psychiatric disorders. In October 2006, the Veteran's VA examiner stated that it was probable that the Veteran's chronic pain in the leg and hip aggravated his depressive symptoms, but due to the complexity of the Veteran's history and presentation, it was not possible to quantify the extent of that aggravation. In contrast, the Veteran's January 2008 VA examiner stated that the Veteran's service-connected right knee and hip conditions had not permanently aggravated his psychiatric conditions. He stated that the Veteran's psychiatric conditions were life-long and that the Veteran's service-connected condition had minimal impact on his day-to-day functioning and did not affect his social or vocational functioning or his mood. In this case, the Board finds the opinion of the Veteran's January 2008 VA examiner to be more probative than that of the October 2006 VA examiner as the January 2008 VA examiner's opinion specifically states the reasons for his opinion. Specifically, the examiner noted the few limitations the Veteran's service-connected right hip and right knee conditions actually created and noted that neither the Veteran's functioning, nor his mood are affected by his right hip and right knee condition. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the Board may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided). Further, the October 2006 VA opinion is too speculative to establish a plausible claim because that the examiner indicated only that it was probable that his leg and hip disorder aggravated his depressive symptoms and it was not possible to quantify the extent of any aggravation. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds that to the extent the 2009 VA treatment records noted the opinion of the Clinical Social Worker that depression and anxiety are related to his ongoing medical issues, this opinion of no probative value. The Social Worker did not specify that any medical records, either service or postservice, were reviewed to reach that conclusion and did not provide any rationale for that conclusion. In any event, the Board finds that this opinion is too speculative in nature to support a grant of service connection because it did not specify the medical conditions. See Obert v. Brown, 5 Vet. App. 30 (1993). Accordingly, that opinion is not accorded any great probative weight. The probative value of that opinion is further diminished by the fact that the conclusion is not supported by any medical rationale. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (medical possibilities and unsupported medical opinions carry negligible probative weight). The Board notes the Veteran's assertions, both in statements and in his treatment records that his service-connected condition aggravated his psychiatric disorder. Initially, the Board notes that the Veteran's extensive treatment records seldom reported that the Veteran attributed his psychiatric disorders to his service-connected right hip and right knee conditions and thus it would appear even by his own account that any change in the Veteran's mood due to his service-connected conditions was fleeting. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002) (temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened). More importantly, however, the Court has consistently held that service connection may not be predicated on lay assertions of medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). Here, the Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render either a diagnosis or a competent opinion as to medical causation. Accordingly, the Veteran's lay opinion does not constitute competent medical evidence and lacks probative value as to the matter of medical diagnoses and causation. See also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report that on which he or she has personal knowledge); Espiritu v. Derwinski, 2 Vet. App. 482 (1992) (a Veteran is not competent to offer opinions on medical diagnosis or causation). Therefore, service connection for a psychiatric disorder, to include anxiety and depression, is not warranted. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder, to include as secondary to the service-connected right hip and right knee disorder, thus this appeal must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. See Gilbert v. Derwinski, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a psychiatric disorder to include anxiety and depression and to include as secondary to the Veteran's service-connected right knee and right hip conditions is denied. ____________________________________________ K.J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs