Citation Nr: 1301560 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 10-36 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an acquired psychiatric disability, including as secondary to the Veteran's service-connected prostate cancer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1968 to February 1970, with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. It appears that the issues of entitlement to an increased rating for residuals of service-connected prostate cancer and service connection for loss of use of a creative organ have been raised by the record (but this is not clear - clarification may be required), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's acquired psychiatric disability has not been shown to be causally or etiologically related to active service, and was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder 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 disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). In a claim for secondary service connection, the regulations provide that service connection shall be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310. In the context of claims for secondary service connection, the evidence must demonstrate an etiological relationship between the service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a non-service-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Also, with regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran contends that his service-connected prostate cancer, currently rated as noncompensable, has caused him to develop an acquired psychiatric disability, to include depression and anxiety. He has not alleged, nor is there evidence to suggest, that his acquired psychiatric disability was directly caused by his active military service. At the outset, the Board notes that the Veteran's service treatment records are silent for any complaint of or treatment for any psychiatric disabilities. VA treatment records show that in August 2008 the Veteran was referred for a psychiatry consultation by his primary care physician depression. The Veteran reported that he felt depressed at times and he showed a depressed affect. He reported problems with concentration. He denied any hallucinations or delusions and denied any homicidal or suicidal ideation. He was given a diagnosis of adjustment disorder with depressed mood and prescribed psychiatric medications. Additional VA treatment records from October 2008 to July 2010 show that the Veteran sought continued treatment for his psychiatric disability. These treatment records show that the Veteran consistently reported minimal, to no, symptoms of depression and reported consistent anxiety and worry related to financial concerns and his wife's health, not his service connected disability, providing factual evidence against this own claim. The Board notes that there is no indication that the diagnosis was secondary to his service-connected prostate cancer. As noted, the treatment records show, for the most part, that the Veteran's mental health complaints are related to his financial concerns, his general health, and his wife's health, not his own. On May 2009 VA examination the Veteran reported that while being treated for prostate cancer, his Veterans service representative recommended that he seek treatment for depression, as depression was a common symptom associated with prostate cancer. The Veteran reported that he sought the recommended treatment, even though he did not believe he was depressed. He reported that he was diagnosed with adjustment disorder secondary to prostate cancer and ulnar nerve damage. He reported that he was attending supportive therapy, but that he was not sure what he was addressing in the treatment. However, he reported that he was much improved from what he felt after his surgery when he had little motivation to engage in activities or leave his house. After examination of the Veteran and review of the claims file, the VA examiner did not make a diagnosis of a mental health disorder. The examiner explained that the Veteran reported no symptoms consistent with a mental health diagnosis at the examination. He reported symptoms of depression following his prostate surgery, but that those symptoms had resolved. The examiner noted that the Veteran was not reporting symptoms that met the DSM-IV criteria for adjustment disorder at the time of the examination, because he was not reporting significant social or occupational impairment due to a mood disturbance or anxiety. The examiner went on to explain that the Veteran continued to enjoy daily activities and reported no prominent symptoms of depressed mood. The Veteran reported that he was primarily bothered by forgetfulness and low energy, but the examiner noted that those symptoms were not causing significant impairment in functioning, and maybe a side effect of his medication. As no mental health disability was diagnosed, the examiner was unable to provide an opinion as to service connection. As noted above, a claim for secondary service connection may be granted when the disability claimed is proximately due to a service-connected disability or when the disability claimed has been aggravated by a service-connected disability. Entitlement to service connection on these bases requires competent evidence that the secondary disability was caused or aggravated by the service-connected disability. See Wallin v. West, 11 Vet. App. 509 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The only competent (medical) evidence of record that addresses this issue is the report of the May 2009 VA examiner, who found that the Veteran did not have any symptoms to support a diagnosis of an acquired psychiatric disability, to include one related to his service-connected prostate cancer. The examiner noted that the Veteran reported that while had symptoms of depression following his prostate surgery, those symptoms had resolved. The examiner also explained that the Veteran's reported symptoms of forgetfulness and low energy could be a likely side effect of his current medication. As the examiner (a licensed psychologist trained in diagnosing and treating psychiatric disabilities) expressed familiarity with the record, and provided an explanation of rationale for his findings, the May 2009 VA examination report is probative evidence in this matter. Because there is no competent evidence to the contrary, the May 2009 VA examination report is persuasive. The Board acknowledges that Veteran's statements that his acquired psychiatric disability was caused, or aggravated, by his service-connected prostate cancer. However, the Veteran's statements are not supported by the medical evidence of record. Additionally, his statements are sometimes inconsistent with the statements he has made to his medical providers (i.e. blaming in some cases his anxiety on financial concerns and reporting little to no depression). In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for an acquired psychiatric disability. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in May 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records and VA outpatient treatment records, and he was afforded a VA medical examination in May 2009. 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 in the development of his 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). ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected prostate cancer, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs