Citation Nr: 1301327 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-34 887 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence to reopen a claim of entitlement to service connection for major depressive disorder has been received. 2. Entitlement to service connection for major depressive disorder. 3. Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1972 to May 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by which the RO, in pertinent part, declined to reopen a finally decided claim of entitlement to service connection for major depressive disorder and denied the claim of entitlement to service connection for a right shoulder disability. FINDINGS OF FACT 1. In an August 2007 rating decision, RO denied the Veteran's claims of entitlement to service connection for major depressive disorder, as new and material evidence sufficient to reopen it had not been received; the Veteran received notice of that decision but he neither appealed this decision nor submitted new and material evidence within the one year appeal period. 2. Evidence received since the August 2007 rating decision relates to the bases for the prior denial of the claim of entitlement to service connection for a depressive disorder. 3. The Veteran's major depressive disorder is proximately due to his service-connected low back disability. 4. A right shoulder disability is not causally related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. The August 2007 rating decision, by which the RO denied entitlement to service connection for major depressive disorder, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the August 2007 rating decision is new and material, and the claim of entitlement to service connection for a depressive disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. Major depressive disorder is causally related to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). 4. A right shoulder disability was not incurred in or a result of active duty service. 38 C.F.R. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303(2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by VCAA, 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Regarding the claim to reopen service connection for a depressive disorder, the Board is granting in full the benefit sought on appeal. Namely, the Board has reopened the claim and granted service connection for major depressive disorder. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The discussion that follows pertains only to the claim of entitlement to service connection for a right shoulder disability. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 (AOJ), in this case the 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 (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. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2008 that fully addressed all three notice elements (what evidence was required to substantiate the claim and the Veteran's and VA's respective duties for obtaining evidence) as well as information regarding disability ratings and effective dates as mandated by the Court in Dingess. This notice was sent prior to the initial AOJ decision in this matter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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 the service treatment records, VA clinical records, and private medical records. The Veteran was afforded a VA medical examination in furtherance of the claim. To that end, 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). The Board finds that the VA opinion and findings obtained in this case are adequate. The VA nexus opinion provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of a right shoulder disability has been met. 38 C.F.R. § 3.159(c)(4). 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 the Veteran 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). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. New and Material Evidence Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) (2012) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him."). To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In an August 1976 rating decision, the RO denied the Veteran's claim of entitlement to service connection for depressive neurosis. The Veteran was notified of this denial that very month, but he did not initiate an appeal, and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In an August 2007 rating decision, the RO declined to reopen the claim of entitlement to service connection for major depressive disorder, as sufficient new and material evidence to reopen the claim had not been received. The Veteran received notice of the decision but did not initiate as appeal and did not submit new and material evidence within the one year appeal period. Therefore, this denial became final. Id.; 38 C.F.R. § 3.156(b). The Board notes that the RO received the Veteran's current claim before the expiration of the appeal period following the August 2007 denial; nonetheless, no evidence related to the claim was received within that one-year period. In August 2007, the RO declined to reopen the claim because, in essence, the newly submitted evidence did not establish that the currently diagnosed major depressive disorder was related to service and that it appeared that such disorder was related to the Veteran's low back disability. Prior to the August 2007 rating decision, the evidence of record consisted of the Veteran's service treatment records indicating no diagnoses of a psychiatric nature. The Veteran, however, complained of such symptoms as frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort in his report of medical history completed in March 1975, shortly before separation. In the corresponding medical examination, no psychiatric disability was noted, and the Veteran was assessed as psychiatrically normal. In the year following service, the Veteran voiced complaints of difficulty concentrating and anxiety. Poor concentration and "apparent psychological problems" were diagnosed, and depression was observed. On VA examination in January 1976, the examiner diagnosed depressive neurosis after the Veteran complained of difficulty concentrating and an inability to complete college requirements. The examiner related his diagnosis to the Veteran's failure in the academic arena. In September 2006, the Veteran sought VA psychiatric treatment due to such symptoms as crying spells, lack of motivation, poor appetite, and poor concentration that had their onset a year earlier. The Veteran reported that his primary stressor was a back disability and that since he became disabled and unemployed, he started to feel worthless. The examiner diagnosed depression not otherwise specified. In November 2006, the Veteran was afforded a VA mental disorders examination. The Veteran's claims folder was not available for review. The Veteran reported that he owned a car dealership until 2004 when he sold his business because he could not continue working due to his back disability. The Veteran indicated that in the past year, he began feeling depressed, sad, anxious, and irritable. His energy was low, and he lacked motivation. The examiner diagnosed depressive disorder not otherwise specified but did not offer an opinion regarding the etiology of the Veteran's depression. Following the August 2007 rating decision, the RO received a private psychiatric evaluation report dated in March 2009. On examination, the Veteran reported that symptoms began in approximately 2002 pursuant to low back surgery. He reported that worked until 2004, when he could work no longer due to severe low back pain and depression. The Veteran reported episodes of anxiety, panic, depression, crying, irritability, memory problems, poor concentration, and despair. After obtaining a thorough history from the Veteran, the psychiatrist diagnosed major depressive disorder and opined that the low back disability from which the Veteran suffered was sufficiently severe to cause or exacerbate an emotional disorder. There were several bases for the RO's August 2007 denial. One basis was that there was no nexus between any present psychiatric disability and service. Significantly, however, another basis of the decision was that the Veteran related his depression to his low back disability. Thus, in essence, the RO determined that neither direct nor secondary service connection was shown by the evidence. Evidence received since the August 2007 denial includes competent medical evidence of a nexus between the Veteran's depression and his service-connected low back disability. For the first time, a medical professional related the Veteran's current major depressive disorder to the service-connected low back disability. There is now competent evidence with which to establish secondary service connection, the lack of which was one basis for the prior denial of the claim. Reopening of each claim is therefore warranted. 38 C.F.R. § 3.156. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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. 38 C.F.R. § 3.303(b). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Major depressive disorder The Board acknowledges that the Veteran complained of symptoms suggestive of a psychiatric disorder on service separation and in the months following separation. However, the record is silent as to any psychiatric symptoms or treatment for many years thereafter until approximately 2006, when the Veteran first sought mental health treatment after 1975. Although competent to report psychiatric symptomatology, the Veteran does not appear to be asserting a direct link between his present major depressive disorder and service or continuity of symptomatology from service to the present. See Layno, 6 Vet. App. at 469; see also 38 C.F.R. § 3.159(a)(2). Rather, the most recent evidence suggests that the Veteran is asserting that his presently diagnosed major depressive disorder is due to his service-connected low back disability. While the Veteran is competent to report psychiatric symptomatology, he is not competent to opine regarding its causes. Indeed, as a lay person, he is not professionally qualified to determine the causes of a psychiatric disability because such matters require medical expertise. 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); see also Duenas v. Principi, 18 Vet. App. 512, 520 (2004); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms). The record contains only one competent medical opinion regarding the cause a the Veteran's currently diagnosed major depressive disorder, namely that of the private psychiatrist. As stated above, after obtaining a thorough history from the Veteran, the psychiatrist diagnosed major depressive disorder and opined that the Veteran's low back disability was sufficiently severe to cause or exacerbate an emotional disorder. The Board is aware that the private psychiatrist did not have access to the Veteran's claims file. However, a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran. Kowalski, 19 Vet. App. at 77. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. Harris, 203 F.3d at 1350-51 (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim). Here, the Board finds no reason to question the credibility of the Veteran's assertions regarding depressive symptoms that had their onset with a low back disability and its aftermath. Indeed, the Veteran's recitation of events leading to his current depressive disorder has been consistent when seeking VA mental health treatment, on VA mental disorders examination, and during the interview with the private psychiatrist in March 2009. Such consistency in the absence of contrary evidence leads the Board to credit the Veteran's assertions regarding the onset of his presently diagnosed major depressive disorder. Caluza, supra. Because the March 2009 psychiatrist's opinion regarding the etiology of the Veteran's present major depressive disorder is based on credible information, the Board finds the March 2009 opinion probative of the issue at hand. Harris, supra. The March 2009 examiner opined that the Veteran's major depressive disorder was either secondary to or aggravated by his service-connected low back disability. There is no evidence to the contrary. Thus, evaluating the evidence in the light most favorable to the Veteran, the Board finds that his currently diagnosed major depressive disorder is secondary to his service-connected low back disability, and service connection for major depressive disorder on a secondary basis is warranted. 38 C.F.R. § 3.310; Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17; see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Right shoulder disability The service treatment records reflect treatment for the right shoulder. In March 1974, the Veteran began to complain of right shoulder pain after falling from a tank during field exercises. A right shoulder X-ray study was within normal limits. He continued to report pain, and he underwent physical therapy. Supraspinatus tendinosis was diagnosed. In his report of medical history completed in March 1975, the Veteran reported such symptoms as swollen or painful joints and arthritis, rheumatism, or bursitis. He expressly denied a painful or "trick" shoulder or elbow. In the corresponding medical examination report, all bodily systems were found to be normal, and the Veteran's "PULHES" physical profile amounted to a "picket fence" (i.e., all 1's), indicating a high level of medical fitness. See generally Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991) (explaining the military medical profile system). On May 2008 VA joints examination, the Veteran reported that he had a right shoulder disability related to a 1974 in service injury. He recounted that he sustained a right shoulder injury while lifting a heavy metal plate when working in the motor pool. He indicated that he sought right shoulder treatment several times in service and that right shoulder symptoms have been intermittent since onset. In the examination report, the examiner noted that a May 2008 magnetic resonance imaging revealed a normal right shoulder. The examiner diagnosed right shoulder adhesive capsulitis. The examiner opined that the Veteran's current right shoulder capsulitis was not related to service. The examiner explained that the right shoulder supraspinatus tendinosis was treated with proper medical care and apparently resolved in service. The examiner explained that the Veteran denied right shoulder pain on service separation and that there was no evidence of a right shoulder disability in the period immediately after separation as well as no evidence of medical treatment for the right shoulder at any time following service. Initially, the Board finds that the Veteran did not incur a chronic right shoulder disability in service. While he did suffer a right shoulder injury, he received treatment and denied a right shoulder problems on service separation. As such, the Board concludes that a right shoulder disability did not become chronic in service. In addition, the Board does not find credible the Veteran's assertions of intermittent right shoulder pain since service separation. As stated, he specifically denied shoulder problems on separation. The Board also notes that the Veteran filed a claim of service connection for several disabilities in September 1975, very shortly after service separation, but he did not claim or mention a right shoulder disability. He also filed claims of service connection in September 2006 and June 2007, but he did not mention the right shoulder. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed several claims for service connection before April 2008, when he filed a claim of service connection for a right shoulder disability, but did not mention the right shoulder. This suggests to the Board that there was no pertinent right shoulder symptomatology after service and before approximately April 2008. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a right shoulder disability, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of right shoulder symptomatology when filing claims before April 2008. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). Next, the Board finds that the competent evidence reflects that the Veteran's current right shoulder capsulitis is not related to service. The Veteran is competent to report symptoms readily apparent to him. Layno, supra. Thus, he is competent to report right shoulder pain and discomfort. He is not, however, competent to opine regarding matters requiring medical expertise such as the origins of his right shoulder capsulitis. See 38 C.F.R. § 3.159(a)(1); Duenas, 18 Vet. App. at 520; Routen, 10 Vet. App. at 186; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (noting 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 only competent evidence regarding the etiology of the Veteran's right shoulder capsulitis is that of the May 2008 VA examiner who opined that there was no link between the Veteran's present right shoulder disability and that which was experienced in service. The examiner explained that the Veteran's in-service right shoulder injury resolved and that the current right shoulder capsulitis was entirely unrelated to service and to the right shoulder injury sustained therein. Based on this evidence, the Board finds that the Veteran's presently diagnosed right shoulder capsulitis is not related to service and that direct service connection for the claimed right shoulder disability is not warranted. 38 C.F.R. § 3.303. This is not a case wherein the evidence is in relative equipoise, in which case the Veteran would prevail. Gilbert, supra. Rather, the competent evidence weighs against the claim. As such, the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. ORDER Service connection for major depressive disorder is granted. Service connection for a right shoulder disability is denied. ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs