Citation Nr: 1308951 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 03-15 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include anxiety and depression. REPRESENTATION Veteran represented by: Robert M. Kampfer, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from November 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. In a January 2006 decision, the Board denied the Veteran's claim for entitlement to service connection for PTSD. In a June 2008 rating decision, the RO denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD (anxiety/depression/panic disorder/psychotic disorder). The Veteran appealed the Board's January 2006 decision to the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In that litigation, a Motion for Remand was filed by the Veteran, averring that remand was required as the Board failed to address his claims for entitlement to service connection for anxiety and depression. In a Memorandum Decision of February 2009, the Court vacated the Board's decision and remanded the matter pursuant to the Memorandum Decision. A copy of the Court's Memorandum Decision in this matter has been placed in the claims file. In a July 2009 decision, the Board denied entitlement to service connection for PTSD and remanded the issues of entitlement to service connection for depression and an anxiety disorder. In the remand, the RO was requested to obtain treatment records, afford the Veteran a VA examination and to obtain a medical opinion. Medical opinions were obtained in July 2012 and August 2012, and the Veteran was afforded a VA examination in December 2012. Additional treatment records were obtained and associated with the claims file. The Veteran requested a hearing before the Board. The requested hearing was conducted in January 2012 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. This claim was remanded again in March 2012. In the remand, it was noted that the Veteran submitted additional evidence without a waiver; therefore, the claim was remanded for review by the RO. FINDING OF FACT The Veteran's acquired psychiatric disorder, other than PTSD, to include anxiety and depression, is not causally or etiologically related to service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, other than PTSD, to include anxiety and depression, is not established. 38 U.S.C.A. § 1110, 5103, 5103A, 5107 (West 2002 & Sup. 2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in April 2008 that fully addressed the entire notice element. The letter informed him of what evidence was required to substantiate his claim and of his and the VA's respective duties for obtaining evidence. The Veteran's claim was later readjudicated in a June 2008 Supplemental Statement of the Case (SSOC). Hence, the Veteran is not shown to be prejudiced by the timing of the notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in April 2008, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Pertinent medical evidence has been associated with the claims file, including service treatment records, post-service VA and private treatment records, Social Security records, and VA examinations. Virtual VA records have also been reviewed. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for an Acquired Psychiatric Disorder, Other than PTSD, to Include Anxiety and Depression The Veteran seeks entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include anxiety and depression. Importantly, the Board notes that the Veteran was denied entitlement to service connection for PTSD in an unappealed July 2009 Board decision; as such, this issue is no longer on appeal. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 the Veteran or on his behalf. 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Additionally, where a Veteran served for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of 10 percent within one year of date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a 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. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). 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). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board notes that the Veteran asserts his current psychiatric disorders are the result of trauma in service. Particularly, the Veteran asserts he was traumatized when he was injected with drugs while sleeping and left under a sun lamp, where he suffered burns to his body. The Veteran also reported that he was involved in multiple fights with others soldiers. Additionally, the Veteran stated that while in service he was informed that this younger sister died in an automobile accident, which caused him great stress. The Board notes that the Veteran has submitted evidence from a newspaper obituary reporting the death of his sister. The Veteran's service records were reviewed. His enlistment examination from November 1973 did not note any psychiatric abnormalities. A June 1975 treatment record indicates the Veteran sought treatment for first-degree burns on his trunk and upper extremities, stating that the burns were the result of sitting under a sun lamp. However, there were no complaints, treatments, or diagnoses of psychiatric disorders during service. The Veteran's separation examination also did not note any psychiatric abnormalities. Post-service records were reviewed. The Veteran received treatment for substance abuse in April 1997 at a VA Hospital. At the time, there were no psychiatric diagnoses noted. The Veteran then began seeing T., Rizzo for counseling in 2000, where diagnoses of major depressive disorder, recurrent, and alcohol dependence, in remission, were noted. In August 2001, a Social Security evaluation listed major depressive disorder, recurrent, generalized anxiety disorder, and a chronic pain disorder. VA records were also reviewed and reported multiple diagnoses. For example, during an August 2001 VA examination, the Veteran was diagnosed with major depressive disorder and generalized anxiety disorder. A private doctor completed a psychological evaluation in July 2009. After examination and psychological testing, the Veteran was diagnosed with major depressive disorder, recurrent, moderate, dysthymic disorder, and PTSD vs. anxiety disorder, not otherwise specified (NOS). The physician noted the Veteran reported a history of traumatic events while in the Army; however, no medical opinion was given and it was noted that the evaluation was brief, based on a mental status interview and one test. The Veteran was afforded a VA examination in March 2010. After examination, the Veteran was diagnosed with anxiety disorder, NOS, and bipolar disorder, NOS, provisional. The examiner noted that there was no evidence that clearly indicated that the Veteran's psychiatric disorders had an onset during service or were otherwise related to service. The examiner explained that it was hard to connect the Veteran's current psychiatric disorders to his time in service due to the Veteran's prominent alcohol and drug use pattern, not seeking any treatment nor any mention of problems other than alcohol and drugs during the Sheridan Hospital treatment in 1997, and because it was not until around 2000 that any other psychiatric disorders were listed. The Veteran was afforded a VA examination in June 2011. After a thorough interview, including psychological testing, the examiner stated that no diagnosis could be reliably found on the examination. The examiner stated that because of extensive discrepancy between the self-reported symptoms of depression and invalid psychometric testing, a diagnosis of anxiety disorder or depressive disorder could not be reliably established. The examiner noted that psychological testing indicated a very high likelihood of exaggeration, or even likely feigning, of self-reported military based symptoms of anxiety disorder or depressive disorder. The examiner explained that these results indicate the Veteran is likely embellishing his symptoms in an attempt to obtain compensation benefits. Further, the examiner noted that there was no objective information indicating a mental disorder during military service, as there were no treatment records indicative of a diagnosis or treatment of mental disorder during service. A January 2012 VA treatment note indicates that the Veteran was receiving treatment, but that he held off on coming to counseling until recently due to trust issues. An evaluation by a licensed clinical professional counselor was submitted in February 2012. It was noted that the Veteran's representative had requested the review. The Veteran's three reported traumas in service were noted: being burned by a sun lamp, having to run on an injured foot, and learning of his sister's death on his last day of service. The professional counselor noted that during the June 2011 VA examination, no psychiatric diagnoses were given due to the Veteran's testing. The counselor stated that the Veteran may have over-responded and was insufficiently forthcoming and evasive because he may have been frustrated for being turned down for service connection. The counselor stated that the Veteran should be given a second chance at testing and be told that he gave an evasive interview and invalidated his testing. The counselor then stated that the Veteran's prior substance abuse might have affected his memories. Finally, the counselor opined that it is as likely as not that the Veteran's emotional problems were being masked by substance abuse and started emerging with sobriety. It was noted that the Veteran experienced traumatic events before, during, and after his military experience. The counselor then opined that it is as likely as not the Veteran's depressive and anxiety problems are related in large part to his military perceived traumatic experiences. A VA medical opinion was obtained in July 2012. The examiner stated that while the Veteran has mental problems, there is no evidence to support that the onset of the Veteran's psychiatric difficulties were related to or caused by the Veteran's military experiences. The examiner noted that the Veteran did not receive any mental health treatment until well after leaving the military. The examiner noted that while there is some confusion as to the Veteran's correct diagnosis, there is general agreement that there are elements of depression and anxiety, but the severity is difficult to judge. Nevertheless, the examiner noted that there is no evidence supporting service connection. The examiner noted that the counselor's February 2012 opinion is given limited weight, as it is not well supported by the bulk of the evidence. The Veteran was afforded a VA examination in December 2012. The examiner noted that the Veteran currently has bipolar disorder, NOS, and panic disorder with agoraphobia, by history. The examiner stated that records reflect a history of depression and anxiety, but it less likely than not that the Veteran's psychiatric symptoms were caused by or are related to his time in service. After a thorough review of the entirety of the evidence of record, the Board finds that there is no basis for establishing service connection for an acquired psychiatric disorder, other than PTSD. The Veteran's lay statements and statements of his spouse and daughter in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has a psychiatric disorder as a result of his time in service, as a layperson without any medical training and expertise, he is simply not qualified to render a medical opinion about the etiology of psychiatric disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Unlike disabilities that may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Moreover, even if credible and competent, the Veteran's general lay assertions are outweighed by the specific and reasoned conclusions of the health care professionals who have asserted his disorders are not a result of service. Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning; threshold considerations include the qualifications of the person opining). The Board accepts the VA examiners opinions as being the most probative medical evidence on the subject, as they were based on a review of all historical records and reports of examinations and testing of the Veteran. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the opinions, and the fact that the opinions were based on a review of the applicable record, the Board finds such opinions are probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board gives less weight to the February 2012 opinion obtained by the Veteran's representative. Although this opinion was based on a review of the Veteran's file, it is important to note that the counselor acknowledged the Veteran's evasiveness and over-responding during previous psychological testing and suggested he be re-evaluated and cautioned about being open and honest during interviews and testing. Additionally, a July 2012 VA examiner stated the private opinion from February 2012 was not well supported by the weight of the evidence. VA is not bound to accept any opinion from a VA examiner, private physician, or other source concerning the merits of a claim. See Hays v. Brown, 5 Vet. App. 60 (1993). Greater weight may be placed on the opinion of one medical professional over another based on such factors as the relative merits of an expert's qualifications and experience, the completeness of the record reviewed, whether or not and the extent to which the expert reviewed prior clinical records and other evidence, the expert's knowledge of a Veteran's accurate medical and relevant personal history and reasoning employed by the examiner. See Black v. Brown, 10 Vet. App. 297 (1997); Boggs v. West, 11. Vet. App. 34 (1998); see also Guerriere v. Brown, 4 Vet. App. 497 (1993). The Board notes that the February 2012 opinion was given by a licensed counselor, while the VA opinions were offered by psychologists and psychiatrists. Furthermore, the February 2012 counselor opined that the Veteran's depressive and anxiety problems are related to his "military perceived traumatic experiences." The Board notes that although there is evidence of the Veteran injuring his foot and receiving burns, there is no evidence that the Veteran was purposely burned or forced to run on an injured foot, as asserted by the Veteran. As such, the Board places a higher probative value to the VA opinions. The Board does not dispute the fact that the Veteran has current diagnoses of multiple psychiatric disorders. However, because of the absence of a medical nexus between his current diagnoses and his time in service, the Board finds that the most probative evidence is against a grant of service connection. Importantly, multiple VA examiners have opined that his disorders are not a result of his time in service. Coupled with the negative opinions from the VA examiners, the Board finds it highly probative that the Veteran was not diagnosed with any psychiatric disorders until many years after service, even though he was receiving in-patient treatment for substance abuse in 1997. As psychiatric disorders were first manifested many years after his discharge from service, service connection may not be granted on a presumptive basis. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board finds that the preponderance of the evidence is against entitlement to service connection for an acquired psychiatric disorder, other than PTSD. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include anxiety and depression, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs