Citation Nr: 1303945 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 04-39 468 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to specifically include depressive disorder, claimed as due to a heart disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) from a February 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for major depression (which has been recharacterized as service connection for an acquired psychiatric disorder other than PTSD). In October 2003, the Veteran notified VA that he had moved to the jurisdiction of the RO in Atlanta, GA. As a result, jurisdiction of the Veteran's appeal was transferred to (and remains with) the RO in Atlanta, GA. In February 2007, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the hearing is associated with the claims file. The Board previously remanded the claim on appeal in August 2008, March 2010, and July 2011 in order for additional evidentiary development to be conducted. All requested development has been conducted and the appeal has been returned to the Board for adjudication. FINDING OF FACT The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran currently has an acquired psychiatric disability other than PTSD, to specifically include depressive disorder, that was incurred in or aggravated by active military service, to include as due to any incident or event in military service, or aggravated by, proximately due to, or the result of a service-connected disability. CONCLUSION OF LAW An acquired psychiatric disability other than PTSD, to specifically include depressive disorder, was not incurred in nor aggravated by active service and is not aggravated by, proximately due to, or the result of a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters sent to the Veteran in June and September 2009, which were sent after the initial unfavorable AOJ decision issued in February 2003, advised the Veteran of the evidence and information necessary to substantiate a service connection and secondary service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The 2009 letters also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. While the notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Indeed, review of the record reveals that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appeal and given ample time to respond. The AOJ also readjudicated the case by way of a supplemental statement of the case issued in October 2009 after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Relevant to the duty to assist, the Veteran's service treatment records, as well as all post-service treatment records identified by the Veteran and the record have been obtained and considered. The Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. Therefore, the Board will proceed with review of the appellant's claim based upon all relevant evidence. Additionally, the Veteran was provided with a VA examination in June 2010 in conjunction with this appeal, and VA also obtained a supplemental medical opinion in August 2012. There is no allegation or indication that the examination or opinions rendered in this appeal were inadequate. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Veteran seeks service connection for a psychiatric disorder. The evidence of record shows that he experiences mental health symptoms, including anxiety and stress, diagnosed as depressive disorder, not otherwise specified. See VA examination reports dated June 2010, September 2011, and August 2012; see also VA treatment records dated from 1976 to 2008. The Veteran asserts that his current psychiatric disorder may be secondary to his current heart disability; however, the Board will also consider whether the Veteran's current depressive disorder is related to his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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 requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As the Veteran carries a diagnosis of depressive disorder, not otherwise specified, he has met the first criteria of service connection, a current disability. Turning to second criteria, in-service incurrence or aggravation of a disease or injury, the Board notes that there is lay and medical evidence of record which suggests that the Veteran may have suffered from a psychiatric disability prior to service. Review of the record reveals that the Veteran has reported experiencing various traumas and stressors prior to service and receiving counseling prior to service. At the June 2010 VA examination, the Veteran reported that his pre-military history including being accused of being gay by bullies, and he described a history of sexual abuse as a preteen. He also reported a history of mental health and emotion problems before service, including mental health therapy and counseling, although he stated that he was never diagnosed with anything. Likewise, a July 1974 STR notes that the Veteran appeared to be emotionally unstable no more than seven days after entrance into service, which also suggests that the Veteran may have suffered from a psychiatric disorder prior to service. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. The service treatment records (STRs) reflect that, at the Veteran's entrance examination in June 1974, the Veteran denied having experiencing depression, excessive worry, or nervous trouble, and clinical examination revealed he was normal psychiatrically. Because an acquired psychiatric disorder was not noted on the June 1974 examination report, the presumption of soundness applies and the Veteran is presumed to have been sound upon into service. The burden now shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Determinations regarding the pre-existence of a disability should be based on medical judgment derived from accepted medical principles, and the clinical factors pertinent to the basic character, origin, and development of such injury or disease. History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles regarding inccurrence, symptoms, and course of the injury or disease, together with all other lay and medical evidence concerning the inception, development, and manifestations of the impairment. 38 C.F.R. § 3.304(b) (2012). Mere history provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Court of Appeals for Veterans Claims has held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Subsequently, a higher court explained the Miller decision by noting that "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be." Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000). In this case, the Board finds that the presumption of soundness has not been rebutted by clear and unmistakable evidence (obvious or manifest) that the Veteran's psychiatric disability preexisted service. While there is lay and medical evidence of record which suggests that the Veteran had a psychiatric disorder prior to service, the Board finds the evidence does not clearly and unmistakably establish that a psychiatric disorder existed prior to service. In making this determination, the Board notes the Veteran is competent to report the events that occurred prior to service, as he has personal knowledge of such events. See Layno v. Brown, 6 Vet. App. 465 (1994). However, there is no medical evidence dated prior to the Veteran's period of active service and, thus, no contemporaneous clinical evidence or recorded history showing a diagnosis of a psychiatric disorder prior to service. At best, the evidence suggests the possibility that the Veteran manifested a psychiatric disorder prior to service, which is not sufficient to rebut the presumption of soundness. In this regard, the Board notes there is medical opinion of record which purports to establish that the Veteran's depressive disorder existed prior to service. The Veteran was afforded a VA examination in June 2010 to determine the likely etiology of any current psychiatric disorder. At that examination, the Veteran reported his pre-military history and was ultimately diagnosed with depressive disorder, not otherwise specified. As to the etiology of the Veteran's disability, the VA examiner opined that it is less likely as not that the Veteran's depressive disorder was caused by or a result of his military service, noting, in pertinent part, that the Veteran may have been vulnerable to developing mental health problems due to trauma and stressors experienced before service. See June 2010 VA examination report. Following the June 2010 VA examination, the VA physician was requested to review the claims file and provide addendum reports which addressed whether the Veteran's depressive disorder existed prior to service and was aggravated thereby. See Board remands dated March 2010 and July 2011. The June 2010 VA examiner provided the requested opinion, with adequate rationale and consideration of the evidence, in August 2012. In August 2012, the June 2010 VA examiner reviewed the claims file again and noted her previous findings at the June 2010 examination. The VA examiner specifically opined that it is at least as likely as not that the Veteran's diagnoses existed prior to service, noting the Veteran's report that his depressive symptoms began before service (before and during high school). In this regard, the examiner noted that STRs reflect that the Veteran experienced bed wetting until age 16, that the Veteran reported preteen sexual abuse and being bullied in school, and that, by the Veteran's reports, he was seen by counselors prior to service due to behavioral issues in and out of school. The VA examiner also noted that, nine days after he entered active service, the Veteran was noted to be emotionally unstable. See VA examination reports dated June 2010 and August 2012. While the June 2010 VA examiner has purported to establish that the Veteran's diagnosis existed prior to service, the Board finds that the examiner's opinion is not supported by clear and unmistakable evidence of such. Indeed, while the VA examiner provided a rationale in support of her opinion, she did not identify any medical evidence which clearly and unmistakably documents a psychiatric disorder prior to service. Instead, her opinion relies on the evidence of record that suggests a pre-existing disability and, as such, merely establishes that it is at least as likely as not, i.e., a 50/50 probability, that the Veteran's disability existed prior to service. In order to rebut the presumption of soundness, there must be clear and unmistakable evidence that the claimed disability existed prior to service, not evidence which suggests a probability that the disability existed prior to service. See 38 U.S.C.A. § 1111. In sum, there is no clear and unmistakable evidence (obvious or manifest) that shows the Veteran manifested symptoms of or was diagnosed with depression or any other psychiatric disorder prior to service. Therefore, based on the foregoing, the Board finds the presumption of soundness has not been rebutted. As such, the Veteran is presumed to have been sound when he entered active military service. The Board will proceed to determine whether the preponderance of the evidence supports a finding that the Veteran's current depressive disorder was incurred in or is otherwise related to his military service. However, after reviewing the lay and medical evidence of record, the Board finds the preponderance of the evidence is against the grant of service connection for depressive disorder. The service treatment records (STRs) do not contain any complaints, treatment, or findings related to depression or any other psychiatric symptoms or disability manifested during service. Indeed, at the Veteran's entrance examination in June 1974, the Veteran denied having experiencing depression, excessive worry, or nervous trouble, and clinical examination revealed he was normal psychiatrically. Notably, a July 1974 treatment record reflects that the Veteran sought treatment after "passing out." The Veteran reported that he did not sleep the night before and thinks he fell asleep because he was tired. A diagnosis was not rendered at that time; however, the Veteran was noted to be slightly unstable emotionally. Despite the foregoing, the STRs do not contain any subsequent complaints or treatment for an acquired psychiatric disability, including at his February 1976 separation examination. Therefore, the Board finds a chronic psychiatric disorder was not shown during service or at separation from service, which is evidence against the Veteran's claim. The evidentiary record contains records which show the Veteran received treatment for substantive abuse from the 1970s to the 1990s. However, the first time the Veteran is shown to have psychiatric problems or symptoms is in April 2002 when he was noted to have stress and anxiety. The Veteran has not identified or submitted any lay or medical evidence which shows that he experienced continued psychiatric problems or symptoms after service or received treatment for a psychiatric disorder between the time he was discharged from service in 1976 and is first shown to complain of stress in 2002. This gap of many years in the record militates against a finding that a chronic psychiatric disability was incurred during service and also rebuts any assertion of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999). In evaluating this claim, the Board also finds probative that, when the Veteran first complained of stress in April 2002, he did not report that his symptoms were of long-standing duration or had persisted since service. Instead, the Veteran reported that his emotional stress was due to his job. See April 2002 private treatment record. Therefore, the Board finds that this evidence preponderates against the Veteran's claim on a presumptive basis. Finally, the Board notes that there is no competent lay or medical evidence of record which establishes a medical nexus between the Veteran's current depressive disorder and service. As noted, the Veteran was afforded a VA examination in June 2010 to determine the likely etiology of his current psychiatric disability. At that time, the Veteran denied having any mental health or emotional problems during service and he specifically denied any mental health therapy, counseling or medication during service. The VA examine also noted the Veteran's history of mental health treatment, noting that he first sought treatment for substance abuse in 1999. The Veteran was afforded a full mental status examination, during which he reported his current symptoms. He attributed his feelings of depression to past experiences from high school and the military, as well as past regrets about the way he has handled things. After examining the Veteran, the VA examiner rendered a diagnosis of depressive disorder, not otherwise specified. As to the etiology of the Veteran's disability, the VA examiner opined that it is less likely as not that the Veteran's depressive disorder was caused by or a result of his military service, noting, in pertinent part, that the Veteran may have been vulnerable to developing mental health problems due to trauma and stressors experienced before the military. See June 2010 VA examination report. In August 2012, the June 2010 VA examiner reviewed the claims file again and noted her previous findings at the June 2010 examination, particularly her opinion that the Veteran's depressive symptoms and depressive disorder was less likely as not related to his military service. In this regard, the VA examiner again noted that the Veteran reported that his depressive symptoms are due to his regrets about the things he did in the past and past bad decisions in his life. The examiner also noted the Veteran's report of his symptoms beginning in approximately 2004. The examiner further noted the Veteran's history of substantive abuse, which continued during and after service. In this regard, the examiner noted that the Veteran's primary problems during service were related to substance abuse and not his military experiences. The examiner ultimately stated that the Veteran's symptoms are related to his experiences during childhood, resulting substantive abuse, and his sense of regret and concern about his past life experiences. Accordingly, the VA examiner opined that, given the Veteran's vulnerability to developing mental health problems due to trauma and stressors experienced before service and his own report of substance abuse during service, the Veteran's psychiatric disorder is less likely than not incurred in or caused by events he experienced in service. The August 2012 VA opinion is considered the most competent, credible, and probative evidence of record with respect to whether the Veteran's current psychiatric disorder is related to military service. The Board finds that the June 2010 VA examination, upon which the August 2012 opinion is primarily based, was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a full mental status examination. There is also no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that she misstated any relevant fact. In fact, the VA examiner provided a detailed discussion of the Veteran's pre and post-military history, as well as a discussion of the circumstances of his military service and his current symptoms. In addition, the examiner's opinion was based upon the evidence of record and supported by a complete rationale. In this regard, the Board notes that the VA examiner's opinion is supported by the other evidence of record, inclusive of the service and post-service treatment records, which do show a chronic psychiatric disability during service or for many years thereafter. In evaluating this claim, the Board also finds probative that there is no opposing evidence of record which attempts to establish a nexus between the Veteran's current depressive disorder and service and is more competent, credible, and probative than the August 2012 VA opinion. Thus, the Board finds that the third element of direct service connection has not been met because a causal connection between his present disability and a service disease or disability has not been established. The Board has considered the Veteran's lay assertions of a nexus between his current psychiatric disability and service. In this regard, the Veteran is competent to report that he feels depressed, as this is a symptom that is capable of lay observation and report. See Layno, supra. However, depressive disorder and other psychiatric disabilities are not conditions that are generally capable of lay observation but, instead, require clinical evaluation and diagnosis by a medical professional. As a result, the determination as to the presence and etiology of that disability is a complex medical question. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the question of the relationship between the Veteran's depressive disorder and service is not a simple medical question and it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his claimed disability and service. In addition, while the Veteran has only offered conclusory statements regarding the relationship between his military service and psychiatric disorder, the June 2010 VA examiner took into consideration all the relevant facts in providing her opinion, which was based upon her review of relevant facts in this case, as well as her medical expertise. As such, the Veteran's statements regarding a nexus between his depressive disorder and military service are not considered competent or probative evidence favorable to his claim and are outweighed by the medical opinion provided by the June 2010 VA examiner. In sum, the Board finds the preponderance of the evidence is against the grant of service connection for an acquired psychiatric disorder other than PTSD, to include depressive disorder, as the preponderance of the evidence does not show that a chronic psychiatric disorder was manifested during service or for many years thereafter and the most competent, credible, and probative evidence weighs against a finding that the Veteran's current psychiatric disorder is related to his military service. The Board has considered whether the Veteran's claim may be granted on a secondary basis, as he has asserted that his current psychiatric disorder is a result of his current heart disability. Review of the record reveals that the Veteran has been diagnosed with non-ischemic cardiomyopathy, aortic insufficiency, and hypertension. See February 2007 private treatment record from Dr. A.C.; November 2007 VA heart examination. In this regard, the law provides that secondary service connection may be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's secondary service connection claim is premised upon establishing entitlement to service connection for a heart disability. However, in July 2011, the Board denied entitlement to service connection for a heart disability. There is no evidence of record which suggests that the Veteran's current psychiatric disability is related to any other disability that was incurred in or aggravated by his active military service. Instead, the most competent, credible, and probative evidence of record establishes that the Veteran's current depressive disorder is related to his experiences during childhood, resulting substantive abuse, and his sense of regret and concern about his past life experiences. See August 2012 VA opinion. Therefore, service connection for a psychiatric disability other than PTSD, to include specifically depressive disorder, is denied as secondary to a heart disability or any other service-connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310. In summary, and based on the foregoing reasons and bases, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for an acquired psychiatric disability other than PTSD, to specifically include depressive disorder, to include as secondary to a service-connected disability. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER Entitlement to service connection for an acquired psychiatric disability other than PTSD, to specifically include depressive disorder, is denied. ____________________________________________ MAJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs