Citation Nr: 1302597 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 06-38 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to May 1956. This matter comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This matter was previously before the Board in November 2009, May 2011, and May 2012, at which times it was remanded for further development. In its May 2011 decision, the Board also granted entitlement to service connection for cognitive disorder, not otherwise specified (claimed as memory loss) due to head injury. In a rating decision dated June 2011, the RO effectuated the Board's grant; however the RO characterized the grant of service connection as being for "cognitive disorder, NOS; depression unspecified." However, a review of the rating decision reflects that the Veteran was not evaluated for depression, but rather residuals of his TBI under the criteria for evaluating brain disease due to trauma. Thus, the claim for service connection a psychiatric disability remains pending. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a psychiatric disability other than cognitive disorder, not otherwise specified, that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. CONCLUSION OF LAW A psychiatric disability, other than cognitive disorder, not otherwise specified, was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. 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 submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom., Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this case, the Board finds that VCAA letters dated August 2005 and June 2011 (Dingess) fully satisfied the notice requirements of the VCAA, and that the Veteran's claims were readjudicated by way of a December 2012 Supplemental Statement of the Case (SSOC). Thus, any error as to the timeliness of the notices is harmless. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board notes that the claims file contains a May 2003 response from the Personnel Information Exchange System, which indicated that the Veteran's service records were not available as they were associated with a fire that occurred at the National Personnel Records Center on July, 12, 1973, and may have been destroyed. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, the Board notes that the claims file contains service treatment records, to include records of the Veteran's treatment at the Hamilton Air Force Base Hospital. Additionally, in a September 2005 letter, the Veteran informed VA that other records concerning his medical treatment during active duty were destroyed long ago. In his September 2005 letter, the Veteran also informed VA that other than his treatment records from VAMC Minneapolis, he had no additional medical evidence to submit in support of his claim. The Board finds no indication that other available, outstanding service treatment records exist. Therefore, the Board concludes that all records identified by the Veteran as relating to these claims have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations in connection with this claim in March 2007, March 2010, and March 2011. Additionally, addendums were provided in July 2011, September 2011, October 2011, and May 2012. The examiners reviewed the claims file, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination reports and opinions to be thorough and complete. Therefore, the Board finds the examination reports and opinions are sufficient upon which to base a decision with regard to these claims. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted above, in November 2009, May 2011, and May 2012, the Board remanded this case for further development. Specifically, these remands instructed the RO to obtain supplemental opinions from the prior VA examiners to determine whether it was at least as likely as not that the Veteran had a psychiatric disability secondary to his in-service traumatic brain injury (TBI). As will be discussed in greater detail below, the prior VA examinations had been performed by both a doctor and a psychologist. In preparing the addendums, the doctor specified that she did not provide psychiatric diagnoses, and so she deferred the making of a psychiatric diagnosis to the VA psychologist. The VA psychologist specified that other than the service-connected cognitive disorder, the Veteran did not have a diagnosis of a separate psychiatric disorder. As such, the Board finds that the purpose of the prior remands has been fulfilled, and there has been substantial compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (duty to ensure compliance with Board remand order). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Claims A. Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Service connection may also be granted for chronic disabilities, such as psychoses, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Factual Background Although most of the Veteran's service treatment records have been destroyed by fire, VA has obtained treatment records from the Hamilton USAF Hospital dated in March 1955. These records show that the Veteran was admitted for treatment on March 9, 1955, for injuries to the face stemming from a fight that occurred on that day. At the time of admission, the Veteran was unable to recall what happened to him and it appeared that he was intoxicated. However, a treatment note dated on March 10, 1955, notes that the Veteran was "very stuporous," confused and unable to answer questions adequately. The Veteran claims disability stemming from this incident. See July and September 2005 statements. Of record is a June 2005 report of neuropsychological consultation, which notes that the Veteran was referred for an evaluation given a history of traumatic brain injury (TBI) with worsening memory of uncertain etiology and management needs. At the time of the consultation, the Veteran reported that he sustained a head injury in service when he was hit from behind after having had "a couple of drinks" at a bar. He described having had no recollection from that point and could not specify when he regained consciousness, but recalled that a companion had told him he was kicked in the head. He also offered a history of having been involved in a motor vehicle accident with a loss of consciousness a week or two following this in-service incident. At this time, the Veteran was administered testing, which showed a significant degree of variability in test performance. Generally, above average performance was seen on testing assessing visual spatial skills, including visual spatial reasoning, visual memory and planning. Lower scores were seen primarily on testing that assessed verbal skills, although many of these fell at or near the average range and were found to be consistent with the Veteran's reported academic history. However, significant impairment was seen on a measure of new verbal learning along with low average performance on some tests of verbal working memory. The examiner noted that such deficits were consistent with typical residuals following a TBI. Cognitive disorder, not otherwise specified, and depression, unspecified, were assessed. In March 2007 the Veteran was provided a VA examination. At this time the Veteran reported that he had problems learning new things after the in-service TBI. His wife explained that she often had to repeat things, because the Veteran had a poor memory. With respect to work history, the Veteran reported that he had needed help learning the tasks associated with his employment as a machinist, which he had worked as for about 17 years. Prior to this job, the Veteran worked doing odd jobs for about 24 years. He stated that he could not hold a steady job, prior to working as a machinist, due to difficulty with learning and remembering. The VA examiner noted that the claims file had been reviewed and related that "[t]he records do not identify head trauma." The examiner further stated that "if he did obtain a [traumatic brain injury] when he was in service" that it was at least as likely as not that the trauma resulted in "ongoing cognitive impairments." In accordance with a Board remand, the Veteran was provided a VA examination in March 2010. The examination was administered by a psychologist. The report of this examination notes that the claims file was reviewed, and documents the aforementioned history of in-service head injury. Examination showed the Veteran to be unable to complete serial 7s and spell "world" backwards. The Veteran reported poor short term memory and that he forgot names. He related that his ex-wife handled his finances as he tended to forget to pay bills and had trouble writing checks. He indicated that there were some "fuzzy parts" for events during his military service, but indicated that his memory for remote events was generally pretty good. Examination of the Veteran at this time resulted in an assessment of cognitive disorder, not otherwise specified. No other psychiatric diagnosis was given. With respect to the question of whether the Veteran indeed incurred a TBI in service, the examiner concluded that it was at least as likely as not that he sustained a TBI during the aforementioned fight. The examiner explained that the Veteran's service treatment records indicated that the Veteran sustained facial wounds at this time and that he did not recall the incident afterwards. The examiner also noted that the Veteran's service treatment records documented that the Veteran was "very stuporous and confused," but that he could answer questions adequately following the incident. In March 2011, the Veteran was afforded a VA examination by a doctor in regards to TBI. The report of this examination notes the Veteran's history of head injury in service, as noted above, particularly such injury sustained in the fight incident, as well as the motor vehicle accident. The examiner also noted the June 2005 VA neuropsychological consultation testing that noted the Veteran had cognitive deficits consistent with typical residuals following a TBI. The examiner cut and pasted a section from the June 2005 neuropsychological consultation report which reflected that the Veteran had diagnoses of cognitive disorder, not otherwise specified, and depression, unspecified. The doctor opined that it was at least as likely as not that the Veteran had a TBI during service. The doctor further opined that it was at least as likely as not that the Veteran's emotional and behavioral signs and symptoms were part of a comorbid disorder and not a residual of TBI. Of record is an April 2011 letter from the Veteran's brother. In this letter, he relates recalling a time when the Veteran was jumped in a parking lot and was in serious condition during his period of active service. He also recalled that in August or September 1955 that the Veteran was involved in a motor vehicle accident when returning to base for duty. The Veteran's brother related remembering that around the time of the motor vehicle accident, the Veteran stopped to see him and "was very confused." He also stated that following the Veteran's discharge, that the Veteran lived with him and had "problems that seemed to be like blackouts" and that the Veteran was "simply not himself." In a statement received by VA in May 2011, the Veteran's ex-wife indicated that the Veteran had shortness of breath, seizures, and had blacked out several times. She recounted the Veteran's experience of being assaulted and being in a motor vehicle accident in late 1955 or early 1956. In July 2011 and September 2011 VA examination addendums, the psychologist who performed the March 2010 VA examination reviewed the prior examinations of record. He gave a diagnosis of cognitive disorder, not otherwise specified, and opined that it was at least as likely as not that the Veteran's cognitive disorder, not otherwise specified, was due to or a result of the Veteran's history of head injury sustained during his military service. In an October 2011 VA examination addendum, the psychologist who performed the March 2010 VA examination stated that "this examiner NEVER diagnosed the [V]eteran with 'depression, unspecified.'" (emphasis in the original). The examiner specified that the diagnosis and opinion provided in the March 2010 VA examination, July 2011 addendum, and at that time was cognitive disorder, not otherwise specified. In a May 2012 VA examination addendum, the doctor who performed the March 2011 VA examination indicated that within her examination report, she had excerpted from the Veteran's 2005 neuropsychological testing report. She specified that the diagnoses of cognitive disorder, not otherwise specified, and depression, unspecified, were contained in that excerpt. She said that she did not give the Veteran diagnoses of cognitive disorder, not otherwise specified, and depression, unspecified, in the March 2011 VA examination report. She remarked that as a doctor, she did not give psychiatric disorders. She said that the Veteran's current psychological evaluation, including any relevant diagnoses, would be found in the March 2010 VA examination report, which was prepared by a psychologist. C. Analysis In opening, the Board notes that the presumptive regulations are unavailing. As there appears no clinical evidence pertaining to the Veteran's claimed psychiatric disorder dated within the first post-service year it is impossible for the Board to ascertain whether the disability manifested to a compensable degree within this period. Accordingly, the presumptive regulations are not for application. 38 C.F.R. §§ 3.307, 3.309. Nevertheless, service connection is not precluded from being established through proof of actual direct causation. Combee, supra. In order to substantiate the claim for service connection of a psychiatric disorder on a direct basis, the evidence must show an in-service event or injury. Shedden, supra. The Veteran has essentially claimed that he has a separate psychiatric disorder secondary to an in-service traumatic brain injury. In this regard, the Board notes that service connection for cognitive disorder, not otherwise specified, as previously been granted. The present claim is for service connection for a separate psychiatric disorder. The service treatment records document that the Veteran was involved in a fight with an apparent loss of consciousness and a period of stupor thereafter. Likewise, the Veteran, his brother, and his former spouse have competently related a history of this fight, as well as a history of an in-service motor vehicle accident. The Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In reviewing the record, the Board finds no reason to doubt the credibility of these statements; indeed, the history of the in-service fight and contemporaneous confusion and stupor is documented in the Veteran's service treatment records. It remains the duty of the Board as the fact finder to determine credibility in any number of other contexts, whether it has to do with testimony or other lay or other evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Thus, the ultimate question in the present case is whether the in-service history of injury is associated with a current psychiatric disorder, other than the service-connected cognitive disorder. Such a question is clearly not capable of lay resolution. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007). The Board observes that the VA treatment records indicate the presence of other isolated psychiatric diagnoses. For example, a VA treatment provider indicated in June 2005 that the Veteran had diagnoses of cognitive disorder, not otherwise specified, and depression, unspecified. Another VA treatment note from September 2005 contains diagnoses of anxiety not otherwise specified and cognitive disorder not otherwise specified. Another VA record from March 2007 contains diagnoses of cognitive disorder not otherwise specified and dysthymic disorder. The Board finds these records to not be as persuasive, as the only consistent diagnosis given is cognitive disorder, not otherwise specified. The other listed diagnoses of depression, anxiety, and dysthymic disorder are isolated and not sustained by the other treatment records. As they are not consistently repeated throughout the treatment records, they do not provide persuasive evidence of a chronic psychiatric disability, other than cognitive disorder. The Board recognizes that the diagnosis of depression, unspecified, was arguably given not only in a June 2005 VA treatment record but also by the March 2011 VA examiner. However, in her May 2012 addendum, the March 2011 VA examiner clarified that she did not diagnose the Veteran with depression; she had merely excerpted the diagnosis of depression from the prior June 2005 VA treatment note. She mentioned that as a doctor she did not give psychiatric diagnoses. As such, the diagnosis of depression was only given in the June 2005 VA treatment record and does not provide persuasive evidence of a chronic psychiatric disability. The Board finds the opinion expressed by the March 2010 VA psychologist and reiterated in his subsequent addendums to be the most credible and probative evidence of record. His report was based on an interview of the Veteran, his reported medical history, appropriate diagnostic testing, and psychological examination. He arguably reviewed the claims file at least four times-once at the time of the initial examination and once each time he gave an addendum. Further, he indicated that the only appropriate diagnosis was cognitive disorder, not otherwise specified-a disability for which service connection was already in effect. As noted, the examining psychologist specifically commented on the service treatment records and the Veteran's assertions of post-service symptoms. The March 2010 VA examiner's opinion is fully explained and consistent with the evidence of record. As such, the Board finds the opinion of the March 2010 VA examiner to be highly persuasive that the Veteran does not have another psychiatric disability in addition to his service-connected cognitive disorder, not otherwise specified, and more probative than the clinical records discussed above. The Board has considered the lay evidence of record discussing the Veteran's symptoms and difficulties since his in-service injury. While such evidence is certainly of some probative value, the Board finds the question of whether a diagnosis of a psychiatric disability other than cognitive disorder is warranted to be a complex medical question that is ultimately beyond the competency of a lay person. On such a question, the Board places much more weight on the opinion of the March 2010 VA psychologist discussed above. For the above reasons, the Board finds that the preponderance of the evidence is against granting service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury. The benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a psychiatric disability, to include depression, unspecified, and anxiety (claimed as a psychological condition) due to head injury is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs