Citation Nr: 1037262 Decision Date: 09/30/10 Archive Date: 10/05/10 DOCKET NO. 07-32 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a nervous disorder, including as secondary to psoriasis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran had active military service from July 1976 to August 1980. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the Veteran's March 2005 claim for service connection for a nervous disorder. In May 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge at the RO (Travel Board hearing). A copy of this transcript is associated with the record. In August 2009, the Board remanded this claim to the RO for additional development. The case has been returned to the Board for further appellate consideration. The Board considers the Veteran's claim for service connection for a nervous disorder as encompassing all psychiatric disorders with which the Veteran has been diagnosed, pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDING OF FACT An acquired psychiatric disorder, to include a nervous disorder, is not shown to be related to the Veteran's military service or to any incident therein, or to his service-connected psoriasis. CONCLUSION OF LAW The Veteran's claimed psychiatric disorder, to include a nervous disorder, is not due to or aggravated by his service-connected psoriasis; nor was it incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R.§ 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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. See 38 C.F.R. § 3.159(b)(1). Such 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). Letters dated August 2005 and October 2009, provided to the Veteran before the October 2005 rating decision and the July 2010 supplemental statement of the case, respectively, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since they informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide. The letters also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim. During the pendency of this appeal, the United States Court of Appeals for Veterans (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in July 2010. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board, in August 2009, instructed the AOJ to provide the Veteran with notice regarding the establishment of secondary service connection and notice consistent with Dingess, 19 Vet. App. 473 (2006); obtain any additional treatment records regarding his nervous disorder; provide the Veteran with a VA Compensation and Pension (C&P) examination; and, if its determination remained unfavorable to the Veteran, issue a new supplemental statement of the case. The Board finds that the AOJ has substantially complied with those instructions. It provided the Veteran with notice regarding establishing secondary service connection in October 2009; obtained the Veteran's additional VA treatment records; provided the Veteran with a VA C&P examination in January 2010; and issued a new supplemental statement of the case in July 2010. Additionally, in July 2010, the AOJ provided the Veteran with notice consistent with Dingess. The Board finds that the AOJ is in substantial compliance with the Board's August 2009 remand instructions. With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's service treatment records and VA treatment records have been obtained. Thus, the Board considers the VA's duty to assist satisfied. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to Service Connection, to Include on a Secondary Basis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.1(k), 3.303(a). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and a nexus between the in-service injury or disease and the current disability, established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, (or within a presumptive period per § 3.307), there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. A claim for secondary service connection requires competent medical evidence linking the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). See also Wallin v. West, 11 Vet. App. 509, 512 (1998) and McQueen v. West, 13 Vet. App. 237 (1999) (both indicating, like Velez, that competent medical nexus evidence is required to associate the claimed disability with the service- connected disability). In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the provisions of 38 C.F.R. § 3.310 have been amended. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection may be made. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which clearly favors the claimant. When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The threshold criterion for service connection, on either a direct or secondary basis, is the existence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Analysis: Service Connection for a Nervous Disorder, Including as Secondary to Psoriasis The Veteran contends in his March 2005 claim that "I have severe psoriasis [and]... my nerves are shot. I've lost jobs and people seem to stand clear of me." He attributed his claimed nervous disorder to asbestos exposure in service in his August 2006 notice of disagreement. In his September 2007 substantive appeal, the Veteran stated that "over the years I've learned I have...nervous disorders." At his May 2009 Board hearing, the Veteran asserted that "specialists and doctors...said that [his nervous disorder] could possibly be related to the asbestos removal" which occurred during the Veteran's service. Id. at p. 4. The Veteran also raised the theory of secondary service connection for his nervous disorder, stating that he had developed depression because people back away from him, refuse to shake his hand, and deny him employment as a result of his psoriasis. See pp. 8-9. The Veteran's service treatment records show no evidence of complaints, diagnoses, or treatment of any nervous disorder or depression during service. At his June 1980 separation examination, a clinician found that the Veteran's psychiatric condition was normal on clinical evaluation. Nearly 25 years after service, in March 2005, the Veteran sought VA treatment because he found himself "homeless, jobless, and depressed." He denied any psychiatric history or prior treatment. He reported that he had lost his job 3 weeks ago and had no income, his sister had recently died in a parachuting accident, and he had been held at gunpoint by a former co-worker who stole his van. VA provided the Veteran with a C&P examination in January 2010. The examiner, a psychiatrist, reviewed the claims file and noted that a VA clinician had diagnosed the Veteran with depressive disorder, not otherwise specified (NOS), in July 2006. She also noted that the Veteran had told a VA clinician that he was not depressed in April 2007. The Veteran reported that he has had no psychiatric hospitalizations, other than his residential treatments for substance abuse. He further reported that he studied depression and eventually got better without medication; he listed his sobriety as the biggest factor in getting better. The Veteran denied having any current problems with depressed mood, anxiety, or social phobia, and denied any psychiatric symptomatology since 2006. The VA examiner diagnosed the Veteran with no active psychiatric disorder, and with a history of adjustment disorder with depressed mood that resolved in 2006. The VA examiner opined that the Veteran "had an Adjustment Disorder with depressed mood in 2006 that has now resolved. This adjustment disorder was related to his homelessness, itself a con[s]equence of his marital break up in 1999. None of this was related to his time in service, nor to his psoriasis. He no longer is having any symptoms of any psychiatric syndrome whatsoever....It is NOT at least as likely as not that his claimed psychiatric condition was incurred or aggravated by his time in the service. It is NOT at least as likely as not that his claimed psychiatric condition was incurred or aggravated [at] any time during or after the service as a result of his SC [service- connected] psoriasis." (Emphasis in original.) Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because the VA examiner is so qualified, her medical findings constitute competent medical evidence. In order for a VA examination to be considered adequate in a case of service connection, the VA examiner must either provide an etiological opinion, or provide a rationale for why an etiological opinion cannot be rendered. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiner provided an etiological opinion that the Veteran's claimed psychiatric condition was not caused by or a result of the Veteran's service, or his service-connected psoriasis. The VA examiner based her medical opinion on a review of the Veteran's service and post- service treatment records, and on the Veteran's own attribution of his prior psychiatric condition to factors unrelated to service. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Consequently, her report is deemed adequate. The Board further finds that the VA examiner's medical opinion is credible, based on its internal consistency and the VA examiner's duty to offer truthful opinions. Consequently, the Board assigns considerable probative value to the VA examiner's January 2010 etiological opinion. The Veteran is competent to observe that he had feelings of nervousness and alienation because of his psoriasis. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.) See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (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). However, the Veteran is not competent to diagnose, or determine the etiology of, a nervous or psychiatric condition. The Board also ascribes greater probative weight to the VA examiner's etiological opinion than to the Veteran's contention that his nervous condition was caused by service (including asbestos exposure) or by his service-connected psoriasis, because the VA examiner's determinations are based on greater medical knowledge and experience. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). With respect to the Veteran's contention at his May 2009 Board hearing that "specialists and doctors...said that [his nervous disorder] could possibly be related to the asbestos removal," the Board finds that this assertion is an insufficient basis for a grant of service connection. First, a layperson's account of what a clinician purportedly said regarding the etiology of his claimed conditions is too attenuated to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Second, even if those specialists' and doctors' opinions were of record, opinions consisting of speculation or uncertainty-as here, by use of the words "could" and "possibly"-are inadequate for establishing service connection. Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); Bostain v. West, 11 Vet. App. 124 (1998) (a private physician's opinion that a Veteran's preexisting service-related condition "may have" contributed to his ultimate demise was too speculative, standing alone, to be deemed new and material evidence to reopen cause-of-death claim); Obert v. Brown, 5 Vet. App. 30 (1993) (a medical opinion expressed in terms of "may be related to service" necessarily implies "may or may not," and therefore is too speculative to establish a plausible claim); Tirpak v. Derwinski, 2 Vet. App. 609 (1992) (a medical professional's use of equivocal language such as "may or may not be related to service" was too speculative to constitute a definitive opinion on issue of causation). The Board notes that the analysis above is necessary notwithstanding the absence of a psychiatric disorder at the time of his January 2010 C&P examination, because the Veteran had a diagnosis of depressive disorder in 2006 during the pendency of his claim. The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran is not entitled to service connection based on the finding of a chronic disease, because he was not diagnosed with a nervous or psychiatric condition during service. Additionally, service connection cannot be granted on the basis of continuity of symptomatology, because the Veteran was not treated for a nervous or psychiatric condition for many years following service. 38 C.F.R. § 3.303(b). The preponderance of the evidence is against the award of service connection for an acquired psychiatric disorder, to include a nervous disorder; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the Veteran's claim is denied. ORDER Service connection for an acquired psychiatric disorder, to include a nervous disorder, including as secondary to psoriasis, is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs