Citation Nr: 1304729 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 96-40 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as secondary to the Veteran's service-connected duodenal ulcer disease. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL Private Psychiatrist ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from June 1954 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision by the San Juan, the Commonwealth of Puerto Rico Department of Veterans Affairs (VA) Regional Office (RO). In February 1998, the Veteran's private psychiatrist testified before a Decision Review Officer at a hearing at the RO. A transcript of that hearing has been associated with the claims file. This case has been before both the Board and the United States Court of Appeals for Veterans Claims (Court) a number of times. Most recently, in December 2008, the Board denied the Veteran's claim for service connection. The Veteran appealed this decision and, in December 2010, the Court issued a Memorandum Decision that vacated the Board's December 2008 decision and remanded the claim to the Board. In September 2011, the Board remanded this matter for additional development. In October 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). FINDING OF FACT A psychiatric disorder was not present in service or for years thereafter, nor was one caused or aggravated by service connected disability. CONCLUSION OF LAW Service connection for a psychiatric disorder, including as secondary to service-connected duodenal ulcer disease, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Although the VCAA was not in effect at the time of the RO's initial decision in this case, the Veteran was notified of the requirements necessary to establish his claim in the February 1998 statement of the case (SOC) and July 1998 supplemental SOC (SSOC). Additionally, in a May 2002 letter, the Veteran was notified of the VCAA provisions and of his and VA's respective responsibility for obtaining evidence to substantiate his claim. The Board notes that the May 2002 letter only provided notice to the Veteran as to how to establish service connection for a psychiatric disorder on a secondary basis. However, as the Veteran is already service-connected on a direct basis for an ulcer condition, it stands to reason that he is aware of the requirements to establish service connection on a theory of direct entitlement. Nonetheless, August 2003 and October 2007 letters provided the Veteran notice of the evidence required to establish service connection on a direct service connection basis. Furthermore, the Veteran is represented by an organization that is intimately familiar with the Veteran's case and what is necessary to substantiate his claim on appeal. The Veteran was informed of the law and regulations governing the assignment of increased ratings and effective dates in August 2006 and October 2007 letters. Likewise, the 2010 Court Memorandum Decision observed the Veteran "is now on notice of how to substantiate his claim on a direct basis, and no additional VCAA notice is required." Thus, the Board finds that the purpose behind the notice requirement has been satisfied, and it is not alleged that notice in this case was less than adequate. See Shinseki v. Sanders, 556 U.S. 396 (2009). Additionally, the Board finds that the duty to assist provisions of the VCAA have been met in this case. All relevant treatment records adequately identified by the Veteran have been obtained and associated with the claims folder. Neither the Veteran nor his representative have identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. In this regard, the Board notes that the March 12, 1975 VA treatment record referenced in his April 1998 VA examination, and highlighted by the Court in the December 2010 Memorandum Decision, is associated with the Veteran's claims file. In addition, in his August 1997 and April 1998 VA examination reports, a 1989 police department psychiatric evaluation report was referenced. In the December 2010 Court Memorandum Decision, it was found the Board failed in its duty to assist by obtaining this report. Accordingly, the Board in September 2011 remanded the matter, in part, to obtain the 1989 police department psychiatric evaluation. In September 2011, pursuant to the Board's remand instructions, the Veteran was sent a letter requesting he complete and return an enclosed VA Form 21-4142, Authorization and Consent to Release Information, so that VA could obtain the identified police department report. In September 2011 and July 2012, the Veteran responded that he had no additional evidence to submit. As such, the Board finds that there is no reasonable possibility of securing this record, and VA's duty to assist in this matter has been met. The Veteran has been afforded multiple VA examinations in connection with his claim. The Board also secured a VHA medical advisory opinion in this matter. As will be discussed in greater detail below, the VHA opinion is adequate for rating purposes; it reflects familiarity with the entire record and includes a detailed explanation of rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any pertinent, available evidence that remains outstanding, VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a veteran for a long period of time or through a factually accurate medical history reported by a veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his psychiatric disorder is etiologically related and due to his service-connected duodenal ulcer disease. The Veteran's service treatment records show no complaints or treatment for a psychiatric condition. These records do show that the Veteran was treated for a duodenal ulcer. Service connection is in effect for duodenal ulcer disease, rated 20 percent disabling. A February 1973 VA treatment record noted the Veteran's ulcer was active upon stress. A March 12, 1975 VA treatment record noted the Veteran is having episodes in which he gets nervous, excited, and at times aggressive and then later on, his ulcer condition flares up. A March 20, 1975 VA treatment record provides an assessment of duodenal ulcer disease exacerbated by stress. An October 1983 VA treatment record noted the Veteran was requesting ulcer disease treatment, and that he was stressed business-wise. On April 1986 VA examination, the examiner noted the Veteran's complaints of and provided a diagnosed of duodenal ulcer. Findings with respect to psychiatric and personality evaluation were found to be normal. On June 1994 VA mental disorder examination, the Veteran reported that he did not have enough income for his needs. He also reported that he suffers from chronic back pain, frequent ulcer recurrence and "other medical problems." He denied ever having any psychiatric treatment. On physical examination, the Veteran was found to have a euthymic (i.e., normal, non-depressed) mood. No Axis I diagnosis was provided. On March 1997 VA stomach examination, the Veteran complained of pain due to his peptic ulcer disease since service. It was noted that he has problems with aggravation of pain mostly with anxiety and tension. In a March 1997 report, a private psychiatrist reported the Veteran suffered frequently from severe epigastric pain, felt worthless and useless, and that he isolated himself and thought of death frequently. The report also provided a diagnosis of major depression, recurrent, severe. The physician opined that the Veteran was "suffering from depression that is due and is related to his service connected condition and for this reason has to be considered service connected in nature also." On August 1997 VA mental disorder examination, the examiner noted that "the veteran repeated on various occasions and very clearly described how when he is under situations of stress and problems he gets gastrointestinal disturbances." The Veteran specifically reported that when he gets anxious, his stomach starts acting up. On physical examination, the Veteran was adequately groomed, alert, and without suicidal or homicidal ideation. His affect was adequate and his mood was "somewhat tense". He related that he was examined after his retirement from the police force and that the psychiatrist who examined him also noticed that situations of stress tend to affect his other conditions. Based on review of the Veteran's claims file, including the above-noted March 1997 private physician report, a diagnosis of "psychological factors affecting a physical condition" was provided. The examiner also noted that at the end of the examination, the Veteran provided paperwork from the police department, including a 1989 psychiatric report, that included a diagnosis of psychological factors affecting a physical condition. At the February 1998 Decision Review Officer hearing, the Veteran's private psychiatrist testified, in essence, that the Veteran had a lot of depression symptoms that were secondary to his service-connected ulcer condition, noting that the Veteran stated that when the ulcer flared-up he could not tolerate anything, he became depressed, and he could not continue living like that. The psychiatrist also testified that while he accepted the VA examiners' opinions that situations of stress affect the Veteran's ulcer, it was clear that when the ulcer condition acts up, the Veteran becomes depressed. The psychiatrist stated that the basis for his opinion was that he had not seen any illness than one may have that does not cause depression, and that chronic illnesses tend to affect the person emotionally. On April 1998 VA mental disorder examination, the Veteran reported he has suffered from ulcers for many years due to emotional tension since his return from Okinawa. He further reported that since his pension was discontinued, he has been feeling more depressed and anxious. On physical examination, he was adequately groomed, alert and oriented, and his mood was noted to be slightly anxious. The diagnosis provided was "psychological factors affecting physical condition (peptic ulcer disease)." The examiner referenced the above-noted March 12, 1975 VA treatment record, indicating such clearly demonstrates that the psychological factors are the ones affecting his peptic ulcer condition. On November 2006 VA mental disorder examination, the Veteran reported anxiety, trouble sleeping, and lack of appetite since his military discharge, becoming severe when his ulcer disability acts up. He denied any current treatment for a mental disorder. On psychiatric examination, the Veteran was neatly groomed, his affect was constricted, his mood was anxious, he was oriented, his thought process and content were unremarkable, and he was without homicidal or suicidal ideation. After a review of the claims file, the examiner provided a diagnosis of "psychological factors (anxiety) affecting a medical condition (duodenal ulcer)". The examiner opined that the Veteran's psychiatric disability was not caused by or a result of his service-connected disabilities (ulcer disease) or related to his service because there is no evidence of psychiatric complaints, findings, or treatment during service, or for many years following service. In November 2007, the Veteran's private psychiatrist submitted a statement reiterating that to the best of his knowledge the Veteran is suffering from major depression that is directly related and due to his duodenal ulcer. In an April 2008 VA examination report addendum, the examiner stated that the Veteran did not meet the DSM-IV criteria for depressive disorder because he did not report any of the symptoms necessary to make the diagnosis. Furthermore, the examiner noted the March 12, 1975 VA treatment record and 1989 police department psychiatric evaluation report as the basis for concluding that the diagnosed psychiatric disability was not caused by the service-connected ulcer as they provided the same diagnosed. In October 2012, the Board sought a VHA medical advisory opinion in this matter. In the response received in November 2012, a VA medical expert who reviewed the entire record opined that it was unclear whether the Veteran suffers from a diagnosable Axis I or Axis II psychiatric illness. However, an Axis I diagnosis of "psychological factors affecting a medical condition" seems to best describe the Veteran's emotional problems. The VA medical expert also opined that the Veteran's mental health difficulties were not as likely as not related to his active service as there is no documented treatment or diagnosis from his active duty or subsequently, and no significant connection between a psychiatric condition and his active service seems to exist. It was also opined that the Veteran's mental health problems are not due to or the result of his duodenal ulcer disease, as his mental health challenges are unrelated to his medical condition that at times can exacerbate his ulcer condition. Finally, the VA medical expert opined that the Veteran's emotional or psychological stressors have not been significantly impacted by his medical condition. On the contrary, his medical condition (i.e., duodenal ulcer disease), may be exacerbated by his stress levels and anxiety. After a thorough review of the foregoing evidence, the Board finds that the greater weight of the evidence is against the conclusion that the Veteran's psychiatric condition is related to service or caused by his service-connected duodenal ulcer disease. In reaching this determination, the Board has considered an array of factors, including the probative value of the numerous medical opinions discussed herein, the Veteran's medical history as reflected in the claims file, and, importantly, the Veteran's own statements concerning his mental and physical state. In this case, there is no indication that the private psychiatrist was privy to the Veteran's claims file (during the February 1998 Decision Review Officer hearing, the psychiatrist indicated that he was not aware of the Veteran's other physical conditions, which suggests that the claims file was not reviewed). Review of the claims file would have revealed that, despite suffering from an ulcer condition since service, there are no medical complaints of depression or other psychiatric symptoms due to such condition until the physician's 1997 meeting with the Veteran. Specifically, at the June 1994 VA mental disorders examination, and the March 1997 VA stomach examination (which the Board notes was performed the same month as the private physician evaluation), the Veteran did not report any psychiatric symptoms that he felt were due to his service-connected ulcer disease. In fact, while he reported "aggravation of pain mostly with anxiety and tension" at the March 1997 VA stomach examination, there is no indication that he reported anxiety, tension, or other psychiatric symptoms such as depression as a result of ulcer pain. In short, review of the objective medical evidence in the claims file would have revealed to the private psychiatrist a picture quite different than what the Veteran described at his March 1997 evaluation. Additionally, while the March 1997 and November 2007 reports by the private psychiatrist indicate that the Veteran felt useless, worthless, isolated, had sleep disturbance and poor concentration, and thought of death frequently, there is no discussion of why these symptoms fulfilled the criteria for major depression, as opposed to some other psychiatric condition, nor do these reports indicate what criteria was used to make the diagnosis in the first place. In this regard, the Board notes that, while it is not required that the DSM-IV be used in diagnosing a depressive disorder, as previously noted, it is a commonly used guide for diagnosing mental disorders. With respect to a diagnosis of recurrent major depression, the DSM-IV requires "the presence of two or more Major Depressive Episodes." (See Quick Reference to the DSM-IV (1994), p. 168). The diagnostic criteria for "Major Depressive Episode" specifically notes, "do not include symptoms that are clearly due to a general medical condition . . ." Id., p. 162 (indicating that the diagnosis of a depressive disorder would not be appropriate in such cases). Additionally, as discussed above, at the February 1998 Decision Review Officer hearing, the private psychiatrist asserted that "psychological factors affecting medical condition" does not exist as an Axis I diagnosis in the DSM-IV. That such a diagnosis is in fact recognized in the DSM-IV further diminishes the integrity of his determinations in this case. (See Quick Reference to the DSM-IV (1994), pp. 287, 288.) Further, it appears that the private psychiatrist's opinion that the Veteran's major depression is related to the ulcer condition was based, in large part, on generalizations rather than the Veteran's unique symptomatology and history. Specifically, at the February 1998 hearing, the physician indicated that he had "not seen any illnesses that you may have that does not cause depression." None of the private psychiatrist's statements indicate that consideration was given to other possible causes of the Veteran's claimed depression, such as his self-reported economic hardship. During the course of this appeal the Veteran has undergone four VA mental disorder examinations, by three different physicians, and opinion sought from a VHA medical expert, all of whom had access to the claims file and therefore the benefit of a more complete review of the Veteran's physical and mental health history, including the private psychiatrist's evaluations. None of these individuals found that the Veteran had major depression, or any other psychiatric condition as a result of his service-connected ulcer disease. This finding is consistent with the preponderance of the evidence contained in the claims file, most notably, the Veteran's own descriptions of his symptoms at his VA examinations, where he consistently related that his ulcer worsened with anxiety and tension, and not the other way around, and supported by the November 2012 VHA medical expert opinion. See also January 2013 correspondence from the Veteran agreeing with the VHA medical expert that his service-connected duodenal ulcer disability may be exacerbated by his stress levels and anxiety. Further, unlike the private psychiatrist's statements, the April 2008 VA examination addendum indicates that the criteria used for the diagnosis of psychological factors (anxiety) affecting a medical condition (duodenal ulcer), and why another diagnosis (namely depressive disorder) is not appropriate in the Veteran's case (specifically, his symptoms do not satisfy the DSM-IV diagnostic criteria). For these reasons, the Board finds that the greater weight of the evidence is against the claim for service connection for a psychiatric condition as secondary to service-connected duodenal ulcer disease. Additionally, given the lack of medical evidence of a psychiatric condition for decades after service (see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000)), and a specific medical opinion rejecting a link between the Veteran's currently-shown psychiatric symptoms and service, the Board finds that the greater weight of the evidence is against the conclusion that the Veteran's psychiatric condition was incurred in, or aggravated by, service. ORDER Service connection for a psychiatric disorder, including as secondary to service-connected duodenal ulcer disease, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs