Citation Nr: 1038068 Decision Date: 10/08/10 Archive Date: 10/15/10 DOCKET NO. 06-38 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a stomach condition, claimed as secondary to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder (claimed as a nervous condition and depression), other than service-connected PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran had active service from September 1967 to August 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Nashville, Tennessee. In part, the August 2005 rating decision awarded service connection for PTSD but denied service connection for a acquired psychiatric disorder (claimed as a nervous condition depression). In view of these circumstances, the Board has characterized the issues as set forth on the title page. In addition, pursuant to this decision, service connection for an acquired psychiatric disorder is being denied. However, service connection for PTSD is currently in effect. As such, the Veteran's service connection claim for a stomach disorder is viable on a secondary basis, as reflected and characterized on the title page of this decision. The service connection claim for a stomach condition 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. FINDINGS OF FACT 1. The Veteran is already service-connected for PTSD and the evaluation of this disability reflects that manifestations including major depression have been attributed to this disability and are specifically enumerated in the rating criteria used for the evaluation of PTSD. 2. There is no independent basis upon which to grant service connection for an acquired psychiatric disorder, to include a nervous condition or major depression, as this condition was not shown in service or during the first post-service year, and there has been no competent and credible nexus evidence presented etiologically linking a claimed nervous/psychiatric disorder to the Veteran's period of service. CONCLUSION OF LAW An acquired psychiatric disorder, other than PTSD, was not incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.14, 4.130 (2010); Esteban v. Brown, 6 Vet. App. 259 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claims in a letter dated in August 2004, wherein the Veteran was advised of the provisions relating to the VCAA. The Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include an explanation relating to the assignment of a disability rating and an effective date for the award of benefits should service connection be awarded. Id. at 486. The Veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in a July 2006 letter and in November 2006, when the Statement of the Case (SOC) was issued. Adjudication of the claims on appeal was undertaken in the SOC issued in November 2006. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). As a practical matter, inasmuch as the service connection claim for a nervous/psychiatric being adjudicated on the merits herein is being denied, the matter relating to Dingess notice is moot and the Board finds no prejudice to the Veteran in proceeding with this decision. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the claim on appeal has been obtained (aside from that claim being remanded). The Veteran's service treatment records (STRs) have been obtained. Also on file are the Veteran's post service private and VA medical records, as well as statements and contentions provided by the Veteran and his representative. In addition, two VA examinations relating to the claim for a nervous/psychiatric condition have been conducted in this case (2004 and 2006). Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the Veteran's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). The Board finds that as to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, the Veteran has not 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 appellant is required to fulfill VA's duty to assist the appellant 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). Factual Background In May 2004, the Veteran filed a service connection claim for a psychiatric disorder to include PTSD and depression. The Veteran's STRs include a September 1967 enlistment examination report reflecting that a psychiatric evaluation was normal and that the Veteran denied having depression or excessive worry. An August 1969 separation examination report also reflects that psychiatric evaluation was normal and that the Veteran denied having depression or excessive worry. Private medical records dated in 1984 reflect that anxiety neurosis was diagnosed and that the Veteran reported having problems with his nerves since 1969 when he came back from Vietnam. In May 2004, the Veteran underwent a VA psychiatric evaluation. The Veteran's symptoms and manifestations included nightmares, flashbacks, anxiety and severe depression. Severe, chronic PTSD; and recurrent major depression, in partial remission, was diagnosed. The examiner indicated that the depression was undoubtedly directly related to the PTSD. By rating action of August 2005, service connection was established for PTSD, for which a 10 percent evaluation was assigned effective from May 2004. Service connection for an acquired psychiatric disorder ("nervous condition") was denied. VA records dated in 2005 and 2006 reflect that the Veteran continued to be treated for PTSD, and that he had begun a trial of the medication Celexa, to address depression and anxiety. In May 2006, the Veteran underwent a VA evaluation conducted by the same board certified psychiatrist who had evaluated him in 2004. Severe, chronic PTSD; and recurrent, recently severe, major depression were diagnosed. The examiner indicated that the Veteran continued to present serious symptoms and signs of PTSD and that associated with that diagnosis were a severe level of major depression. In an August 2006 rating action, an increased evaluation of 30 percent was granted for PTSD effective from August 2006. Analysis The Veteran maintains that service connection is warranted for an acquired psychiatric disorder. Generally, in order to prevail on the issue of service connection, there must be 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 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2010). Service connection shall be granted to a veteran if the veteran served 90 days or more during a war period or after December 31, 1946 or had peacetime service on or after January 1, 1947, and conditions including psychoses, although not otherwise established as incurred in or aggravated by service, are manifested to a compensable degree within one year following the requisite service. 38 C.F.R. §§ 3.307, 3.309 (2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board acknowledges that the record, to include VA evaluations conducted in May 2004 and May 2006, reflects that the Veteran has co-existing diagnoses of PTSD and major depression. Service connection is in effect for PTSD, which has been assigned a 10 percent evaluation effective from May 2004, and a 30 percent evaluation effective from May 2006, under the General Formula for rating mental disorders found at 38 C.F.R. § 4.130, Codes 9201- 9435, which includes code 9411 used for the evaluation of PTSD. Significantly, the VA examiner in both 2004 and 2006, indicated that depression was directly related to the Veteran's PTSD. In the regard, the Board notes that under the General Formula for rating mental disorders found at 38 C.F.R. § 4.130, Codes 9201- 9435, which as previously mentioned includes code 9411 used for the evaluation of PTSD, depressed mood and near-continuous depression are manifestations which are specifically included in the enumerated criteria supporting the assignment of 30 and 70 percent ratings for PTSD, respectively, under that rating criteria. The Court has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. Essentially, under the anti-pyramiding provision of 38 C.F.R. § 4.14, (2008), the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The United States Court of Veterans Appeals (Court) held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Here, depression is already being compensated as part of the symptomatology which supports the current assignment of a 30 percent evaluation for PTSD. In this case, as detailed above, the Veteran is already service- connected for PTSD to include manifestations of depression. Therefore, a grant of service connection for another psychiatric disorder, such as a nervous condition or depression, would not result in any additional benefit to the Veteran and would, in fact, be in violation of the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown. Consequently, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). For the sake of completeness, the Board further notes that, even if the Veteran were not already service-connected for PTSD, the file does not contain nexus evidence linking depression, diagnosed many years after the Veteran's discharge from service, to the Veteran's period of service. The requirement of an evidentiary showing of an etiological relationship has been repeatedly reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability claimed. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). As a related matter, there was no indication of any diagnosed nervous/psychiatric disorder in service or within the first post service year and chronicity of symptomatology since service is not established by the clinical records. To the extent that the Veteran has complained of nervous trouble since service (March 1984 record), an account that is considered both credible and competent, this history is consistent with and already contemplated in conjunction with the grant of service connection for PTSD. Therefore, this claim would still be denied. See Holbrook v. Brown, 8 Vet. App. 91 (1995) (The Board has the fundamental authority to decide a claim in the alternative.). ORDER Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. REMAND The Veteran contends that service connection is warranted for a stomach condition. He maintains that he had stomach problems in 1969 and was treated for stomach problems within the first post- service year. In the alternative, he maintains that the claimed stomach condition is secondary to a nervous disorder. Although service connection for a nervous/psychiatric disorder has been denied by the Board, service connection is in effect for PTSD, representing a viable theory of entitlement to service connection for a stomach condition on a secondary basis. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (2010); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). A summary of the evidence on file reflects that the STRs are negative for any stomach-related complaints or diagnosis, as was the August 1969 separation examination report. Private medical evidence reflects that between July 1970 and August 1972, the Veteran was treated for GI distress and abdominal cramping, assessed as possible peptic ulcer. Service connection for certain chronic diseases, including peptic ulcer disease, may be warranted on a presumptive basis if manifest to a compensable degree within one year after separation from active service. 38 C.F.R. §§ 3.307, 3.309. Subsequent private medical records document stomach pain in 1986; irritable bowel syndrome; and GI distress in 1992. VA records dated in 2005 and 2006 reflect that the Veteran's diagnosed medical conditions include gastroesophageal reflux disease (GERD). The Board points out that a VA examination has not yet been furnished in conjunction with the Veteran's claimed stomach condition, but is warranted in this case. Fulfillment of VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2009). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability/death may be associated with in-service injuries for purposes of a VA examination). Given the evidence on file, the Veteran should be afforded a VA examination which addresses the claimed stomach condition in relation to the potential theories of entitlement for service connection. See McLendon v. Nicholson, 20 Vet. App. 79, 81( 2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran shall be afforded an opportunity to submit or identify any additional evidence (not already on file) relevant to his service connection claim for a stomach disorder. 2. Any available VA medical records dated from April 2006 forward relating to the Veteran's claimed stomach condition should be obtained and associated with the claims folder. 3. The RO/AMC shall arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset, and etiology of his claimed stomach disorder. The claims file, to include a complete copy of this remand, should be made available to the examiner in conjunction with conducting the examination of the Veteran. The examiner should annotate the report to reflect that review of the claims file was undertaken. A discussion of the Veteran's lay history and symptomatology as well as the documented pertinent medical history should also be included. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner's report shall also address the following matters: a) The examiner shall identify the manifestations and diagnosis relating to the claimed stomach disorder, to verify the presence of this claimed disorder. b) The examiner shall express an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed stomach disorder is causally or etiologically related to the Veteran's period of active service extending from September 1967 to August 1969, or manifested during the first post- service year (should peptic ulcer be shown). c) The examiner is also requested to address whether any currently manifested stomach disorder is at least as likely as not (at least a 50 percent probability) caused by service-connected PTSD; or in the alternative whether it is at least as likely as not (at least a 50 percent probability) that service-connected PTSD aggravated (i.e., permanently worsened) any stomach disorder found on examination. If aggravation is found, the degree of aggravation must be specifically identified. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for correction. 5. Then readjudicate the Veteran's service connection claim for a stomach disorder, with application of all appropriate laws and regulations and consideration of any additional information obtained, to include consideration of service connection on a direct, presumptive and secondary basis. If the decision with respect to this claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. The supplemental statement of the case must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations pertinent to the issue currently on appeal. The appellant 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 that are 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs