Citation Nr: 1301828 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 08-16 355 ) 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, claimed as secondary to service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney at Law ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active service from June 1974 to June 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision by the Department of Veterans Affairs (VA) St. Petersburg, Florida Regional Office (RO). On the Veteran's May 2008 Substantive Appeal, he requested the opportunity to testify at a Travel Board hearing. He was scheduled for such a hearing in July 2011. Prior to the hearing, however, his representative indicated that the Veteran would not be able to attend his scheduled hearing. As the Veteran has not requested that his hearing be rescheduled, the case may proceed without the need for a remand. See 38 C.F.R. § 20.702(d) (2012). In December 2011, the Board issued a decision which denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order vacating the Board's decision and remanding the appeal for compliance with the instructions within the Joint Motion. FINDINGS OF FACT 1. The Veteran did not suffer from an acquired psychiatric disorder during his active service and there is no evidence that his current psychiatric disorder is related to his active service. 2. There is no competent evidence that the Veteran's acquired psychiatric disorder is secondary to or aggravated by his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 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 (2012). This 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). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2007 - prior to the initial RO decision in this matter - that addressed the notice elements. 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. This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established. See Dingess, 19 Vet. App. 473. This notice also informed the Veteran of how service connection may be established as secondary to an already service-connected disability. Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records, records of his post-service VA treatment, and records from the Social Security Administration (SSA). The Board notes that a VA examination was not obtained with respect to the claim. However, the Board finds that the evidence, discussed below, which indicates an absence of competent medical evidence of a possible nexus between service or service connected disability and the claimed disorder, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4) (2012). Accordingly, the Board finds no basis for a VA examination to be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. When a chronic disease identity is established in service, then a showing of continuity after discharge is not required. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012). 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). Service connection for a psychosis may be presumed if manifested to a degree of 10 percent or more within the first year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection also is warranted for a disability which is aggravated by, proximately due to, or the result of, a service- connected disability. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he currently suffers from an acquired psychiatric disorder that is secondary to his service-connected bilateral knee disabilities. For the reasons that follow, the Board finds that service connection is not warranted. First, the Board acknowledges that the Veteran has been diagnosed as suffering from an acquired psychiatric disorder. A review of the Veteran's claims file reveals that he has been diagnosed as suffering from a number of different psychiatric disorders, including major depressive disorder, adjustment disorder with depressed mood, schizoaffective disorder, mood disorder (not otherwise specified), bipolar affective disorder with depression, and posttraumatic stress disorder (PTSD). Regardless of what diagnosis most accurately reflects the Veteran's current symptomatology, it is nonetheless clear that the Veteran currently suffers from some psychiatric disorder. Service connection on a direct basis fails, however, because there is no evidence that the Veteran suffered from any such psychiatric disorder during his active service. There is no record of the Veteran complaining of or receiving treatment for an acquired psychiatric disorder during his active service. The Veteran's separation examination did not reflect any diagnosis of a psychiatric disorder, and the Veteran did not state that he was suffering from any psychiatric condition. The record does include a November 1978 VA general medical examination report that contains a diagnostic impression of anxiety reaction. The Board does not find that this diagnosis establishes service connection on a direct basis. The Veteran failed to report any psychiatric disorder or symptoms during the examination, the examiner failed to provide evidence during the examination upon which to base this diagnosis, and the examiner failed to provide reasoning for his impression of anxiety reaction. Indeed, the examiner remarked in the body of the report that the Veteran had "no obvious psychiatric or personality disorders." A medical opinion that contains only data and conclusions is not entitled to any probative value; there must be factually accurate, fully articulated, sound reasons for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It also should be noted this diagnosis was made after service. With no diagnosis made, or relevant symptoms noted, during service, (with it being specifically considered during clinical evaluation at separation), this November 1978 diagnosis serves only to establish (at most) the incurrence of the condition after service. Also significant, is that the impression entered was not a psychosis, as would otherwise raise the question of presumptive service connection under 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. (See 38 C.F.R. § 4.130 and its predecessors regarding the identification of psychoses.) In any event, given the foregoing, this report is accorded minimal probative value in the context of the Veteran's claim. Further, there is no evidence that any of the Veteran's now diagnosed psychiatric conditions are related to his active service. Neither the VA nor the private treatment records that have been obtained indicate that any of the Veteran's disorders could be related to his active service. That being said, the Veteran does not contend that his acquired psychiatric disorder is related to his active service. Instead, in his April 2007 claim and his July 2007 Notice of Disagreement, the Veteran argued that his psychiatric disorder is secondary to his service-connected bilateral knee disabilities. Additionally, the Veteran reported feeling depressed secondary to multiple stressors, mostly his jobs. See January 2006 psychiatry note. Here, the Veteran is service-connected for degenerative arthritis of the left knee and status post right knee meniscal tear; both disabilities are rated as 10 percent disabling. The Veteran's claim fails, though, because there is no competent evidence that the Veteran's current psychiatric disorder is secondary to or aggravated by his bilateral knee disabilities. None of the Veteran's VA or private medical treatment records state that such a connection exists. Certainly the Veteran contends that his psychiatric disorder is secondary to his service-connected bilateral knee disabilities. In his April 2007 claim, the Veteran stated that he sought service connection for major depressive disorder as secondary to his "overall medical condition." The Veteran repeated this contention in his July 2007 Notice of Disagreement and his May 2008 Substantive Appeal, again stating his belief that his major depressive disorder is secondary to his "overall medical condition." In a July 2010 letter, the Veteran's daughter stated that her father does not take pain very well, and that this pain "elevates the symptoms of post-traumatic stress and bipolar disorder." The Board, however, does not find that either the Veteran or his daughter is competent to state that his psychiatric disorder is secondary to his bilateral knee condition. The Board recognizes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). That being said, the determination of whether a specific psychiatric condition is secondary to another disability requires specialized training for a determination as to diagnosis and causation, and it is therefore not susceptible to lay opinions on etiology. See Jandreau, 492 F.3d at 1376-77, n.4 (stating that though a layperson may be competent to identify a condition like a broken leg, she would not be competent to identify a form of cancer). The Board therefore cannot accept the Veteran's and his daughter's contention that his psychiatric condition is secondary to his service-connected disability as being sufficient to support service connection. Second, the Board notes that both the Veteran's statements and his daughter's letter indicate that his psychiatric condition is related not simply to his service-connected bilateral knee condition, but instead to his "overall medical condition." Though his medical records reflect that he is currently suffering from a number of medical conditions, he is only service-connected for the two knee disabilities mentioned above. Finally, the Board notes that the claims file does reflect that the Veteran was diagnosed as suffering from PTSD. A December 2006 record from Innovative Health & Wellness found that the Veteran was then suffering from PTSD. Despite this diagnosis, absent any suggestion this is related to service or service connected disability, an analysis under the various VA regulations relating to service connection for PTSD/stressor development is unnecessary. In summary, the Board finds that the Veteran did not suffer from an acquired psychiatric disorder in service. The Board also finds no competent, credible evidence that the Veteran's psychiatric disorder is secondary to or aggravated by his service-connected bilateral knee disabilities. Accordingly, the Board concludes that the criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs