Citation Nr: 1033673	
Decision Date: 09/08/10    Archive Date: 09/15/10

DOCKET NO.  00-00 230A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center 
in Wichita, Kansas


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric 
disability, claimed as depression.

2.  Entitlement to service connection for diabetes mellitus, to 
include as secondary to his service connected disabilities of the 
lower extremities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. G. Alderman


INTRODUCTION

The Veteran served on active duty from November 1981 to November 
1991.

This case comes before the Board of Veterans' Appeals (Board) on 
appeal from a May 2002 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho.

The Veteran appeared and provided testimony before the 
undersigned Veterans Law Judge (VLJ) in February 2009.  A 
transcript of the hearing has been associated with the claims 
file.

This matter was remanded by the Board in August 2009 for 
additional development.  All development has been completed in 
relation to the claim for service connection for depression.  Per 
the remand below, all development has not been adequately 
completed for the service connection claim for diabetes mellitus.

Additional information was submitted by the Veteran's 
representative in July 2010 with a waiver of RO review.  

This evidence indicates that the Veteran has a diagnosis of 
depression and PTSD.  PTSD is not currently before the Board on 
appeal is REFERRED to the RO for appropriate action.

The issue of service connection for diabetes mellitus, to include 
as secondary to service connected disabilities of the lower 
extremities, 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.

FINDING OF FACT

The Veteran's acquired psychiatric disability, claimed as 
depression, did not have onset during active service and is not 
otherwise related to active service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric 
disability, claimed as depression, have not been met.  38 
U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 
3.303, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from 
a disease or injury incurred in or aggravated by service.  See 38 
U.S.C.A. §§ 1110, 113; 38 C.F.R.        § 3.303(a) (2009).  In 
general, service connection requires (1) the existence of a 
present disability; (2) in-service incurrence or aggravation of a 
disease or injury; and (3) a causal relationship between the 
present disability and the disease or injury incurred or 
aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 
1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 
110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 
(1995).

A disorder may also be service connected if the evidence of 
record reveals that the Veteran currently has a disorder that was 
chronic in service or, if not chronic, that was seen in service 
with continuity of symptomatology demonstrated thereafter.  38 
C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 
(1997).  A demonstration of continuity of symptomatology is an 
alternative method of demonstrating the second and/or third 
Caluza elements discussed above.  Savage, 10 Vet. App. at 495-
496.  Disorders diagnosed after discharge may still be service 
connected if all the evidence, including pertinent service 
records, establishes that the disorder was incurred in service.  
38 C.F.R. § 3.303(d); Combee, 34 F.3d at 1043 (Fed. Cir. 1994).

The Veteran seeks service connection for an acquired psychiatric 
disability, claimed as depression.  Service treatment records 
(STRs) fail to show a diagnosis or treatment of an acquired 
psychiatric disability, to include depression, during service or 
within one year of service.  The STRs include an entrance 
examination, dated July 1981, and a reenlistment examination, 
dated March 1988, which show no indication of psychiatric 
disabilities.  Report of Medical History, dated March 1988, shows 
that the Veteran did not self-diagnose depression or excessive 
worry.  The form also states that the Veteran has never been 
treated for a mental condition.  

More importantly, the STRs include the September 1991 separation 
examination which indicates no psychiatric disabilities.  
Further, the Report of Medical History, also dated September 
1991, shows no indication of depression or excessive worry and 
states that the Veteran has never been treated for a mental 
condition.  

A May 1999 VA outpatient treatment record shows a diagnosis of 
depression and states that the condition was treated with Prozac 
for the past year.  A relationship to service was not indicated.

VA outpatient treatment records show that the Veteran had a 
diagnostic assessment for depression in April 2005.  It does not 
appear that the staff psychiatrist reviewed the Veteran's claims 
file or STRs.  During the assessment the Veteran reported that 
his problems began in 1989 when he and his first wife divorced, 
and escalated in 1991 when he was discharged from service as a 
result of his inability to pass a physical examination.  He 
reported that he was diagnosed with major depression five years 
ago after an incident at work triggered an anxiety attack.

The staff psychiatrist noted the Veteran's five year history of 
major depressive disorder and treatment with Prozac.  He 
diagnosed the Veteran as having major depressive disorder and 
anxiety.  The psychiatrist stated that the Veteran suffers 
anxiety about social and job related issues and has suffered, and 
currently suffers, a great deal of stress, most of which appears 
to have started in 1989 and 1991 when he divorced his first wife 
and was discharged from service.  Unfortunately, the staff 
psychiatrist indicates only that the Veteran suffered stress from 
his divorce and separation from service.  He did not state that 
the Veteran's major depressive disorder or anxiety had onset 
during service, thus, the assessment does not support a finding 
of service connection for the acquired psychiatric disabilities 
and the Board must find that, overall, the medical report 
provides strong evidence against this claim, indicating a problem 
that began after service caused by his discharge and divorce.  

Even if the Board assumes that the staff psychiatrist meant to 
indicate a relationship between service and the acquired 
psychiatric disabilities, the psychiatrist did not indicate 
whether or not he reviewed the Veteran's STRs or claims file in 
conjunction with the assessment.  It appears that the staff 
psychiatrist's opinion is based solely upon the Veteran's report 
of symptomatology and medical history which is inconsistent with 
the STRs which were silent for complaint, treatment, or diagnosis 
of any acquired psychiatric disability during service.

During his February 2009 Board hearing, the Veteran testified 
that he did not suffer depression prior to service.  He related 
his current depression to incidents that occurred during service, 
such as his divorce, incidents with superiors during service, and 
his discharge from service.  Specifically, he stated that during 
service, right before the Gulf War, he and his wife divorced.  He 
described the circumstances surrounding the divorce, including 
his wife's infidelity with his best friend.  He also stated that 
he lost his house to foreclosure while deployed because his ex-
wife failed to make the mortgage payments.  The Veteran also 
described problems that he was having with a superior and a 
situation that involved a fellow serviceman and the serviceman's 
eventual death.  Finally, the Veteran discussed his reenlistment 
process and indicated that he was forced out of service.  He said 
that comments written on his re-enlistment paperwork did not 
match the numerical score assigned for certain categories.

After separation from service, the Veteran said he got a job but 
still had to see the same people that caused his problems during 
service, including his ex-wife and former best friend.  He moved 
and in 2000, he started having complications with his new job 
after reporting questionable activity of a co-worker to 
superiors.  He said that he was eventually diagnosed with 
depression and that a VA provider said that the depression was, 
in part, related to his time in service.

The Veteran had a VA examination in September 2009.  The examiner 
reviewed the claims file and performed the mental health 
evaluation.  During the examination, the Veteran reported that 
his depression started in 1987 after divorcing his wife.  He said 
that he was stationed on an aircraft carrier when he found out 
that his wife was having an affair with his best friend.  He said 
that this event, as well as not getting along with some of his 
supervisors in service, led to his depression.

The examiner diagnosed the Veteran with major depressive disorder 
and stated that the depression has persisted for many years.  He 
stated that given the Veteran's record and report that it is 
within the "realm of possibility" that the depression began and 
was exacerbated by events as reported by the Veteran while 
serving in the military.  

Despite the examiner's opinion, service connection is granted 
when the evidence shows that it is "at least as likely as not", 
or a 50 percent or greater degree of probability, that there is a 
connection between the claimed disability and service.  
Unfortunately, the law provides that service connection may not 
be based on resort to speculation or remote possibility.  38 
C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); 
Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992).  It has been 
observed that statements from doctors which are inconclusive as 
to the origin of a disease cannot be employed as suggestive of a 
linkage between the current disorder and the claimed incident of 
service.  Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. 
Brown, 5 Vet. App. 104, 145-6 (1993).  In this case, the 
examiner's finding that "it is within the realm of possibility" 
that the Veteran's depression is related to service is 
speculative and cannot be used as the basis for a finding of 
service connection.

In this decision, the Board has considered all lay and medical 
evidence as it pertains to the issue of service connection for 
depression.  38 U.S.C.A. § 7104(a) ("decisions of the Board 
shall be based on the entire record in the proceeding and upon 
consideration of all evidence and material of record"); 38 
U.S.C.A. § 5107(b) (VA "shall consider all information and lay 
and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) 
(service connection claims "must be considered on the basis of 
the places, types and circumstances of his service as shown by 
service records, the official history of each organization in 
which he served, his medical records and all pertinent medical 
and lay evidence").

In rendering a decision on appeal, the Board must analyze the 
credibility and probative value of the evidence, account for the 
evidence which it finds to be persuasive or unpersuasive, and 
provide the reasons for its rejection of any material evidence 
favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 
36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 
(1990).

Competency of evidence differs from weight and credibility.  
Competency is a legal concept determining whether testimony may 
be heard and considered by the trier of fact, while credibility 
is a factual determination going to the probative value of the 
evidence to be made after the evidence has been admitted.  Rucker 
v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 
465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 
25 (1991) ("although interest may affect the credibility of 
testimony, it does not affect competency to testify").

A veteran is competent to report symptoms that he experiences at 
any time because this requires only personal knowledge as it 
comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr 
v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may 
be diagnosed by its unique and readily identifiable features, the 
presence of the disorder is not a determination "medical in 
nature" and is capable of lay observation).

The absence of contemporaneous medical evidence is a factor in 
determining credibility of lay evidence, but lay evidence does 
not lack credibility merely because it is unaccompanied by 
contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 
F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical 
records does not serve as an "absolute bar" to the service 
connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) 
("Board may not reject as not credible any uncorroborated 
statements merely because the contemporaneous medical evidence is 
silent as to complaints or treatment for the relevant condition 
or symptoms").

In determining whether statements submitted by a veteran are 
credible, the Board may consider internal consistency, facial 
plausibility, consistency with other evidence, and statements 
made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  
The Board is not required to accept an appellant's uncorroborated 
account of his active service experiences.  Wood v. Derwinski, 1 
Vet. App. 190 (1991).
 
In this case, the Veteran is competent to report symptoms because 
this requires only personal knowledge as it comes to him through 
his senses.  Layno, 6 Vet. App. at 470.  As part of the current 
VA disability compensation claim, in recent statements and sworn 
testimony, the Veteran has asserted that his symptoms of 
depression started during service and have been continuous since 
service.  In this case, after a review of all the lay and medical 
evidence, the Board finds that the weight of the evidence 
demonstrates that the Veteran did not experience continuous 
symptoms of depression during and after separation from service.  
The Board finds that the Veteran's reported history of continued 
depression since active service is inconsistent with the other 
evidence of record.  Indeed, while he stated that his disorder 
began in service, the separation examination was absent of any 
complaints of depression.  Neither the examining physician nor 
the Veteran indicated symptoms, treatment or diagnosis of 
depression.  Moreover, the post-service evidence does not reflect 
treatment related to depression until seven years after 
separation from active service.  This finding is supported by the 
April 2005 VA assessment which indicates that the Veteran's 
depression was diagnosed around 1999 or 2000 after an incident at 
work (post-service) triggered an anxiety attack and by the May 
1999 VA outpatient treatment record, which indicates that the 
Veteran had been treated for a year for depression.  Therefore, 
the medical evidence does not reflect continuity of 
symptomatology and, in fact, provides factual evidence against 
such a finding.  

The Board has also considered the Veteran's statements and sworn 
testimony asserting a nexus between his currently-diagnosed 
acquired psychiatric disability and service.  While the Board 
reiterates that he is competent to report symptoms as they come 
to him through his senses, acquired psychiatric disabilities, 
such as depression, are not the types of disorders that a lay 
person can provide competent evidence on questions of etiology or 
diagnosis, including the issue of when his depression began and 
what caused it.  Such competent evidence has been provided by the 
medical personnel who have examined the Veteran during the 
current appeal and by service records obtained and associated 
with the claims file.  Here, the Board attaches greater probative 
weight to the clinical findings than to his statements.  See 
Cartright, 2 Vet. App. at 25.  The Board finds that the most 
probative evidence in this case provides evidence against this 
claim. 

Based upon the evidence the Board finds that service connection 
is not warranted for the Veteran's depression.  Although he 
stated that the condition began and persisted since service, the 
STRs and separation examination fail to show any indication of 
depression during service.  Medical records do not suggest a 
diagnosis or treatment of depression for several years after 
service.  Further, regarding the April 2005 assessment, the 
examining psychiatrist did not indicate a nexus between service 
and depression; he indicated only that the Veteran suffered 
stress during service.  Even if the Board assumes that the 
psychiatrist intended to link the depression to the Veteran's 
service, the psychiatrist did not review the Veteran's claims 
file and STRs in conjunction with rendering an opinion and 
further, did not provide a rationale to support such an opinion.  
Finally, the opinion from the September 2009 VA examination used 
the phrase "within the realm of possibility" when trying to 
link the Veteran's depression to his service.  Unfortunately, the 
phrase "within the realm of possibility" is speculative and the 
law provides that service connection may not be based on resort 
to speculation or remote possibility.  38 C.F.R. § 3.102; Obert, 
5 Vet. App. at 33; Stegman, 3 Vet. App. at 230.  

For the reasons stated above, the Veteran's claim for service 
connection for depression must be denied.  The evidence is not so 
evenly balanced so as to allow application of the benefit-of- 
the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009).



The Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) has 
a duty 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2009).  

Upon receipt of a complete or substantially complete application 
for benefits, VA is required to notify the claimant and his 
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); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 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 
in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be 
provided prior to an initial unfavorable decision on a claim by 
the agency of original jurisdiction, or regional office (RO).  
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); 
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court 
of Appeals for Veterans Claims held that, upon receipt of an 
application for a service-connection claim, 38 U.S.C.A. § 5103(a) 
and 38 C.F.R. § 3.159(b) require VA to provide the claimant with 
notice that a disability rating and an effective date for the 
award of benefits will be assigned if service connection is 
awarded.  In this case, although the notice provided did not 
address either the rating criteria or effective date provisions 
that are pertinent to the Veteran's claim, such error was 
harmless given that service connection is being denied, and hence 
no rating or effective date will be assigned with respect to this 
claimed condition.

Here, the VCAA duty to notify was satisfied by way of a letter 
sent to the Veteran in November 2001 that fully addressed all 
three notice elements and was sent prior to the initial RO 
decision in this matter.  The letter informed the Veteran of what 
evidence was required to substantiate the claim and of the 
Veteran's and VA's respective duties for obtaining evidence.

The Board has considered the issue of whether another VA 
examination is warranted.  However, there is nothing in the 
record that would support a finding that a second attempt to 
obtain a medical opinion would be more successful than the first 
attempt.  There are certain situations in which a medical opinion 
regarding etiology is not possible, and in such situations one 
must look to the facts of the case to consider whether the 
Veteran must be given the benefit of the doubt.  In this case, 
there is significant factual evidence against this claim, 
including the service and post-service treatment records, which 
clearly indicate to the Board that this problem began well after 
service.  

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed without 
prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 
(1993).  The RO has obtained VA outpatient treatment records and 
private treatment records.  The Veteran submitted statements and 
private medical records and was provided an opportunity to set 
forth his contentions during the hearing before the undersigned 
Veterans Law Judge.  The Veteran was afforded a VA medical 
examination in September 2009.  Significantly, neither the 
Veteran nor his representative has identified, and the record 
does not otherwise indicate, any additional existing evidence 
that is necessary for a fair adjudication of the claim that has 
not been obtained.  Hence, no further notice or assistance to the 
Veteran is required to fulfill VA's duty to assist in the 
development of the claim.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).


ORDER

Service connection for an acquired psychiatric disorder, claimed 
as depression, is denied.

REMAND

In August 2009, the Board remanded the Veteran's claim for 
service connection for diabetes mellitus, to include as secondary 
to service connected disabilities of the lower extremities, for a 
VA examination to determine the nature and etiology of his 
diabetes mellitus and its relationship, if any, between service 
and service connected disabilities.  The Veteran argues that the 
September 2009 VA examination is not adequate as the examiner 
failed to answer the correct questions.

A review of the September VA examination shows that the examiner 
did not have the correct information about the Veteran's service 
connected disabilities when he rendered an opinion regarding the 
etiology of the Veteran's diabetes mellitus.  Specifically, the 
examiner states that the claims file showed that the Veteran was 
service connected only for right knee arthritis, when in fact, 
the Veteran is service connected for limitation of extension of 
both knees; residuals of bilateral knee injuries; a low back 
disability associated with the service connected right knee 
injury; right ankle pain with synovitis and arthritis associated 
with right knee injury residuals; and left knee arthritis.  
Accordingly, the Board finds that a remand is necessary so that 
the examiner can provide an opinion with rational as to whether 
any of the service connected disabilities, to include limitation 
of extension of both knees, residuals of bilateral knee injuries, 
a low back disability associated with the service connected right 
knee injury, right ankle pain with synovitis and arthritis 
associated with right knee injury residuals, and left knee 
arthritis caused or aggravated the Veteran's diabetes mellitus.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran's claims file to a VA 
examiner to determine the nature and etiology 
of his diabetes mellitus.

The examiner is asked to furnish an opinion, 
with rationale, as to whether it is at least 
as likely as not (50 percent or greater 
likelihood) that the currently diagnosed 
diabetes mellitus (a) had its onset during 
the Veteran's period of service from November 
1981 to November 1991, (b) is proximately due 
to or the result of his service-connected 
disabilities, or (c) is aggravated or 
underwent a permanent increase in severity 
beyond the natural progression of the disease 
by his service-connected disabilities (that 
is, a worsening of the underlying condition 
as contrasted to a worsening of symptoms).

The examiner must be notified that the 
Veteran's service connected disabilities 
include limitation of extension of both 
knees, residuals of bilateral knee injuries, 
a low back disability associated with the 
service connected right knee injury, right 
ankle pain with synovitis and arthritis 
associated with right knee injury residuals, 
and left knee arthritis.  Each of the service 
connected disabilities must be considered 
when rendering the opinion and all opinions 
must be supported by rationale.

The examiner is asked (but not required) to 
comment on the clinical significance of the 
following: service treatment records dated in 
September 1988 and September 1991, which 
appear to show laboratory findings of normal 
glucose levels; private records dated in 
October 1997 showing a diagnosis of adult 
onset diabetes mellitus; VA records dated in 
March 1999 indicating a medical history of 
Type 2 diabetes reportedly having been 
diagnosed in 1993; and a January 2007 
statement of a VA physician, opining on the 
likelihood that the Veteran's in-service high 
glucose readings were the beginning of his 
diabetic condition, and opining that his 
service-connected orthopedic disabilities 
would have directly caused and aggravated his 
current diabetic condition.

In formulating the opinion, the examiner is 
asked to consider that the term "at least as 
likely as not" does not mean "within the 
realm of possibility."  Rather, it means 
that the weight of the medical evidence both 
for and against the conclusion is so evenly 
divided that it is as medically sound to find 
in favor of causation as it is to find 
against causation.

If the examiner unable to provide the 
requested opinions without examining the 
Veteran, a VA examination should be 

2.  Upon completion of the foregoing, the 
claim should be adjudicated.  If the decision 
remains adverse to the Veteran, then provide 
him with a supplemental statement of the case 
and return the case to the Board.


The Veteran has the right to submit additional evidence and 
argument on the matter or 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 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. 2009).


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs