Citation Nr: 1234968 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 03-00 436A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder and/or mood disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Shamil Patel, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for an anxiety disorder. The Veteran testified at an RO hearing in January 2004, and testified before the undersigned Veterans Law Judge at a Travel Board hearing in June 2006. Copies of the hearing transcripts have been associated with the claims file. This matter was previously remanded by the Board in February 2007. After that development was completed, the Board denied the Veteran's claim for service connection for an anxiety disorder in December 2008. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2011 decision, the Court set aside the Board's decision and remanded it back to the Board for additional development. The Board then remanded the claim in November 2011 for further development consistent with the Court's decision. The case now returns to the Board for further review. The Board notes that a portion of the record in this case is located in the Virtual VA paperless claims processing system. Instead of paper, a highly secured electronic repository is used to store and review documents involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was in part processed as part of the Virtual VA system, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT The Veteran's acquired psychiatric disorder is not etiologically related to service or a service-connected disability. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service, may not be presumed to have been so incurred or aggravated, and is not secondary to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Board notes that effective May 30, 2008, VA amended its regulations governing VA's duty to provide notice to a claimant regarding the information necessary to substantiate a claim. The new version of 38 C.F.R. § 3.159(b)(1), removes the portion of the regulation which states that VA will request that the claimant provide any evidence in his possession that pertains to the claim. See 73 Fed. Reg. 23353-54 (April 30, 2008). Prior to the initial adjudication of the Veteran's claims, a letter dated in September 2001 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and 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. B. Duty to Assist The Veteran's service treatment records, VA treatment records, VA authorized examination reports, lay statements, and hearing transcripts have been associated with the claims file. VA attempted to obtain the Veteran's Social Security Administration (SSA) records. However, inquiries dated December 2007 indicated that no such data was available. The Board specifically notes that the Veteran was afforded VA examinations with respect to his disability. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that the VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide an opinion as to the etiology of the Veteran's psychiatric disorder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). VA has provided the Veteran with the opportunity to submit evidence and arguments in support of his claims. The Veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may 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) (2011). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). For a 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 where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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) (2011). Service connection requires competent evidence showing: (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). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Subsequent to the filing of the Veteran's claim, the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). B. Evidence Service treatment records are negative for any complaints, treatment, or diagnoses related to a psychiatric disorder. Examinations conducted in November 1979, May 1982 and August 1994 recorded no relevant abnormalities. At the time of his August 1994 separation examination, the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Notably, service treatment records do contain a history of complaints and treatment for stomach and abdominal problems in October 1980, December 1980, March 1982, February 1983, June 1983, November 1987 and June 1994. VA treatment records dated October 2000 show findings of abdominal pain aggravated by stress. At the time, the Veteran reported multiple stressors, including his mother being ill and going through a divorce. He reported being told that he was an "anxious person." He had no symptoms of depression, hopelessness, nightmares, or avoidance. He denied any traumatic experience or combat associated with his Gulf War service. He was diagnosed with anxiety disorder, not otherwise specified. Additional records dated January 2001 show the Veteran experienced anxiety which caused abdominal pain. In January 2003, the Veteran reported having sleep problems. He snored a lot and woke up with fatigue. He reported feeling some anxiety secondary to filing his claim for service-connected benefits. In January 2004, the Veteran reported experiencing anxiety during his service in the Persian Gulf, due to fears of chemical warfare and SCUD missiles. The Veteran testified at a January 2004 RO hearing. He stated that after his discharge in 1994, he worked in Panama for 6 years. When he returned to the United States, he underwent a Gulf War examination and was diagnosed with an anxiety disorder. He reported serving as a supervisor of telecommunications equipment and personnel during the Gulf War. He was under a lot of pressure and experienced a great deal of stress as a result. However, he felt if he sought treatment for his condition, he would be removed from his senior position. He denied any anxiety problems prior to service in the Gulf War, and felt his current condition was the same as what he experienced during service. The Veteran underwent a VA examination in February 2004. The claims file was reviewed by the examiner, who noted the Veteran's treatment for anxiety beginning in 2000. The Veteran reported the onset of anxiety symptoms during the Gulf War. However, he did not know he had a problem until he was diagnosed with an anxiety disorder in 2000. Prior to being treated with medication, he experienced anger outbursts and difficulty getting along with co-workers. He attributed this to working in a small office with 10 people. He was also going through a divorce and had other problems at the time. His symptoms responded well to treatment with medication. The Veteran also described his experiences with gas mask practice sessions during the Gulf War, and how he once was told to sleep with his gas mask on. The examiner diagnosed anxiety disorder, not otherwise specified. The Veteran also testified at a Travel Board hearing in June 2006. His statements were consistent with his January 2004 RO hearing testimony. He also reported that during service, he experienced symptoms such as palpitations, sweaty hands, and headaches. At the time, he also had irritable bowel syndrome, which was aggravated by his stress. He felt that seeking mental health treatment during service was taboo. After service, he did not seek care because proper facilities were not available where he was in Panama. VA treatment records dated October 2006 reflect a diagnosis of major depressive disorder. An additional VA examination was conducted in November 2007. He reported service in Desert Storm from August 1990 to April 1991. He first began experiencing mood symptoms consisting of irritability, poor sleep, some concentration problems and feelings of helplessness during his military service. After obtaining a medical history from the Veteran and reviewing his claims file, the VA examiner ultimately diagnosed the appellant with a mood disorder that was being aggravated by obstructive sleep apnea. In doing so, the examiner reported that the Veteran found certain sedating agents and/or medications to be most beneficial towards (what the Veteran categorized as) his depression; and other medications he tried involving selective serotonin reuptake inhibitors (SSRIs) had not been beneficial. In addition, the examiner reported that it was likely that the Veteran was under-reporting his alcohol use as an AUDIT screen undertaken by the examiner indicated the potential for abuse. Based upon the above-referenced findings, the examiner opined that the Veteran's reported mood disorder symptoms were less likely than not due to any service stressor. The Veteran underwent a VA examination in January 2012. Based on a review of the claims file, a history provided by the Veteran, and an examination, the VA examiner diagnosed the Veteran with dysthymic disorder with mild anxiety symptoms. He further stated that this condition was less likely than not related to service. He based this conclusion on the fact that the Veteran did not report or receive any treatment during service or within 6 years following discharge for psychiatric symptoms. The Veteran denied such symptoms during examination and medical history reports in service, and he was able to continue to perform the duties of his civilian job for 6 years without any significant detriment due to mental health symptoms. While the Veteran had abdominal complaints in service, these alone do not indicate the presence of ongoing psychiatric symptoms or a mental disorder. The etiology of these complaints could not be solely attributed to a psychiatric disorder since there were other non-psychiatric explanations for the condition. In addition, the examiner stated that the Veteran's psychiatric disorder was less likely than not proximately due to or aggravated by his service-connected medical conditions. The examiner noted that the Veteran initially sought treatment for anxiety during a time of high stress associated with a pending divorce, his mother's ill health, and financial concerns. While he reported medical issues contributing to his anxiety, this was due to a variety of conditions not limited to abdominal pain. The Veteran's excessive weight gain and limited mobility most likely aggravated his dysphoria and anxiety. It was more plausible that his dysphoria and anxiety aggravated and contributed to his service-connected issues. VA treatment records dated January 2012 reflect diagnoses of a panic disorder without agoraphobia, dysthymic disorder, anxiety disorder, and depressive disorder. C. Analysis Based on the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Although the record reflects currently diagnosed psychiatric conditions, the overall weight of the evidence is against a finding that they were incurred in or otherwise related to service. Service treatment records are negative for any complaints, treatment, or diagnoses related to a psychiatric disorder. The Veteran was treated several times in service for abdominal problems, and VA treatment records dated October 2000 and January 2001 indicate a potential relationship between the Veteran's abdominal problems and anxiety. However, the January 2012 VA examiner stated that such complaints do not indicate the presence of ongoing psychiatric symptoms or a mental disorder, in light of the possible non-psychiatric causes and the fact that there were no documented complaints of other psychiatric symptoms in service. Moreover, the Veteran testified that his anxiety did not begin until he served in the Gulf War, whereas his abdominal problems began almost 10 years earlier. Collectively, these findings indicate that the Veteran's abdominal symptoms in service were not related to a psychiatric disorder. Moreover, there is no competent medical opinion linking the Veteran's currently diagnosed conditions to service. The Board notes that the Court found the November 2007 VA examination to be inadequate. However, the January 2012 VA examiner's opinion was based on a review of the claims file, a history provided by the Veteran, and an examination. The examiner's opinion is consistent with the other evidence of record, and he provided a clear rationale for his conclusion that the Veteran's condition was not related to service. While there also is evidence suggesting a relationship between the Veteran's psychiatric disorders and his service-connected irritable bowel syndrome, the January 2012 VA examiner concluded that the Veteran's psychiatric condition was not proximately due to or aggravated by his service-connected disabilities. Rather, it was the psychiatric condition which contributed to the Veteran's abdominal complaints. This conclusion is supported by the Veteran's early VA treatment records, which in October 2000 showed findings of abdominal pain aggravated by stress, and in January 2001 showed that the Veteran experienced anxiety which caused abdominal pain. The Board has considered the Veteran's own statements made in support of his claim. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example difficulty hearing, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr v. Nicholson, 21 Vet. App. 303 (2007). In Robinson v. Shinseki, the Federal Circuit held that, in some cases, lay evidence will be competent and credible evidence of etiology. Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance. The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence. The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence. If so, the Board must weigh that evidence against the other evidence of record-including, if the Board so chooses, the fact that the Veteran has not provided any in-service record documenting his claimed injury-to determine whether to grant service connection. See Robinson v. Shinseki, 312 Fed. Appx. 336 (2009) (confirming that, "in some cases, lay evidence will be competent and credible evidence of etiology"). The Board observes that this Federal Circuit decision is nonprecedential. See Bethea v. Derwinski, 252, 254 (1992) (a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains"). The Board believes that if Bethea applies to Court decisions, it surely applies to those of a superior tribunal, the Federal Circuit. Here, the Board finds that a specific psychiatric disorder is not the type of disability that the Veteran is competent to diagnose. See Jandreau, supra (noting in footnote 4 that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). The Veteran is certainly competent to report observable symptoms, and it is entirely consistent and logical that he would have experienced some moments of anxiety and stress associated with his tour of duty in the Persian Gulf. However, experiencing moments of stress and anxiety in certain situations is not analogous to being found to have developed an anxiety or mood disorder as a result of those experiences. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Therefore, although the statements of the Veteran offered in support of his claim have been given full consideration by the Board, they are not considered competent medical evidence and do not serve to establish a medical nexus between the claimed disorder and the Veteran's period of service. Further, to the extent that the Veteran's lay statements are offered as evidence of continuity of symptomatology, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, supra. As noted, in adjudicating his claims, the Board must evaluate the Veteran's credibility. See Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 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). As noted, competency of evidence differs from weight and credibility. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). While the Board acknowledges that the Veteran is competent to provide evidence of his own experiences, there are no documented complaints of psychiatric symptoms in service. While the Veteran claimed his symptoms had their onset during his time in the Persian Gulf, he underwent several examinations as part of his military service both before and after his service overseas, and no relevant abnormalities were recorded during those examinations. Indeed, the Veteran denied a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. Finally, at the time he sought treatment for his condition in 2000, he reported several stressors not related to service, including a pending divorce, an ill parent, and financial concerns. See Rucker at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value). These facts weigh against the claim he now makes that he has had problems ever since service. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric condition etiologically related to active service. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs