Citation Nr: 1300567 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-23 941 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for anxiety disorder, claimed as secondary to various service-connected genitourinary disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McPhaull, Counsel INTRODUCTION The Veteran served on active duty from September 1982 to October 1994. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2007 rating decision in which the RO awarded service connection for depression as secondary to service-connected genitourinary disabilities, but denied service connection for anxiety disorder as secondary to service-connected genitourinary disabilities. The Veteran filed a notice of disagreement (NOD) with the denial in February 2008, and the RO issued a statement of the case (SOC) in April 2009. The Veteran filed a substantive appeal (via VA Form 9, Appeal to the Board of Veterans' Appeals) in May 2009. In April 2011, the Veteran requested and had an informal hearing in-lieu of a formal RO hearing. The issues discussed at the informal hearing were the pending appeal per NOD received on May 13, 2010 regarding a total disability rating based on individual unemployability due to service-connected disabilities (TDIU); and pending VA Form 9 received May 22, 2009 regarding entitlement to service connection for anxiety disorder (on a secondary basis). The Board notes that the Veteran has not perfected his appeal with respect to the TDIU issue by filing a timely VA Form 9, and the RO has closed the appeal. See 38 C.F.R. §§ 20.202, 20.302(b) (2012). In July 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. During the hearing, the undersigned clarified that the single issue before the Board is that set forth on the title page: service connection for an anxiety disorder claimed as secondary to various service-connected genitourinary disabilities. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. There is no competent evidence or opinion to even suggest that an anxiety disorder diagnosed many years post service is in any way medically-related to the Veteran's service-connected genitourinary disabilities. CONCLUSION OF LAW The criteria for service connection for anxiety disorder, claimed as secondary to service-connected genitourinary disabilities, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) ). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a September 2007 pre-rating letter provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for service connection on a secondary basis, as well as what information and evidence must be submitted by the appellant, and what information would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The December 2007 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the September 2007 letter-which meets the content of notice requirements of Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the claims file, to include the Veteran's paperless, electronic (Virtual VA) file, consists of the Veteran's service treatment records, VA treatment records, the reports of VA examinations in October 2007 and September 2009; and treatment records (which are duplicates of VA treatment records) associated with a Social Security Administration (SSA) determination. Also of record and considered in connection with the appeal is the transcript of the June 2012 Board hearing, along with various statements submitted by the Veteran and his representative, on his behalf. The Board finds that no further RO action on this matter, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). As a final preliminary matter, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Effective August 23, 2011, VA amended its regulations governing hearings. See 76 Fed. Reg. 52572 (Aug. 23, 2011). The rule clarifies that the hearing provisions in 38 C.F.R. § 3.103 only apply to hearings before the agency of original jurisdiction and do not apply to hearings before the Board. Notably, the hearing in this case took place after August 23, 2011. In any event, at the hearing in this case, the undersigned Veterans Law Judge discussed the issue and any outstanding evidence regarding the Veteran's claim. It was pointed out that the Veteran was already service-connected for a psychiatric disability, namely depression, as secondary to his service-connected genitourinary disabilities, and in order for the Veteran to claim additional psychiatric disability, he had to show he had the current anxiety and that such was related to his service-connected genitourinary disabilities. Additionally, information was elicited as to whether or not there were any additional treatment records that showed anxiety diagnosis and its relationship to his service-connected disabilities. The Board notes, the Bryant duties were thereby met. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). At the outset, the Board notes that the Veteran does not contend, and the evidence does not indicate, that his anxiety disorder had its onset during, or as a result of, service. In this regard, service treatment records reflect no complaint, finding, or diagnosis of anxiety disorder. Rather, in various written statements, the Veteran has expressed his belief that his anxiety is due to his service-connected genitourinary disabilities. Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation to a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2012). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the denial, as noted below, discussion of the amendment is unnecessary. In his August 2007 claim for service connection for depression and anxiety secondary to service-connected genitourinary disabilities, the Veteran asserted experiencing depression and anxiety because of pain and the fear of losing his remaining testicle. Pertinent post-service treatment records include the report of an October 2007 VA mental disorders examination. During that examination, the Veteran reported that he has not received any mental health treatment regarding his depression and anxiety. He reported that he is depressed over the removal of one of his testicles; however he reported anxiety and worry in relation to personal family matters. The examiner noted that the Veteran did not endorse anxiety symptoms with regards to losing the remaining testicle, but noted the statement in the file from the Veteran regarding his depression and anxiety with regards to losing the remaining testicle. Mental status examination was essentially unremarkable. Depressive disorder not otherwise specified (NOS); and anxiety disorder NOS were diagnosed. The examiner's impression was that the Veteran was experiencing mild, transient depression, related to his service-connected genitourinary disabilities; and anxiety symptoms mainly related to family issues. On November 2008 VA psychological assessment, the examiner noted that the Veteran was not a reliable historian. She noted that the Veteran exhibited moderate major depression; and had significant anxiety. On September 2009 VA mental health examination for evaluation of depression, the Veteran denied currently suffering from symptoms of anxiety. Axis I diagnoses included anxiety disorder NOS, in remission. The examiner documented that the Veteran did not currently suffer from an anxiety disorder. During the June 2012 Board hearing, the Veteran reiterated in testimony that he is not currently receiving any treatment for his psychiatric disability. He was notably vague regarding whether or not any current anxiety was related to the removal of his testicle. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the claim for secondary service connection for anxiety disorder must be denied. At the outset, the Board notes that under current case law, the requirement that a claimant have a current disability before service connection may be awarded for that disability 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 if no disability is present at the time of the claim's adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, while the most recent examiner noted that the Veteran does not currently exhibit an anxiety disorder, the prior medical evidence of record-i.e., the report of the October 2007 VA mental health examination reflecting a diagnosis of anxiety disorder-is sufficient to establish the presence of the currently-claimed disability within the meaning of McClain. The Board notes, however, the only medical opinion to address the etiology of the anxiety disorder first diagnosed many years post-service-that of the October 2007 VA examiner-does not support the claim. As indicated, the October 2007 VA examiner attributed the anxiety disorder to the Veteran's personal family matters. Significantly, neither the Veteran nor his representative has presented or identified any medical evidence or opinion that actually supports the claim-i.e., one that even suggests that there exists a medical relationship between an anxiety disorder and service-connected genitourinary disabilities, as alleged. Furthermore, as regards to any direct assertions by the Veteran and/or his representative as to the etiology of an anxiety disorder, the Board finds that such assertions provide no basis for allowance of the claim. Matters of diagnosis and medical etiology of the disability at issue are ones within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without appropriate training and expertise, neither is competent to render a probative opinion on the medical matter on which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for anxiety disorder, claimed as secondary to service-connected genitourinary disabilities, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for anxiety disorder, claimed as secondary to various service-connected genitourinary disabilities, is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs