Citation Nr: 1310906 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 10-02 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right leg disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to service-connected diabetes mellitus and left ear hearing loss. REPRESENTATION Appellant represented by: David L. Huffman, Attorney at Law ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968, with service in the Republic of Vietnam from December 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, and from a February 2010 rating decision of the RO in St. Petersburg, Florida. Jurisdiction of these matters is now with the RO in St. Petersburg, Florida. The Board notes that although the Veteran's attorney requested an RO hearing and then a hearing before a Veterans Law Judge, a May 2011 decision review officer (DRO) informal conference report reflects that the Veteran's attorney cancelled the request for a DRO hearing. Thereafter, in June 2011, the Veteran withdrew his request for a hearing before a Veterans Law Judge. The issues currently on appeal were previously remanded by the Board in February 2012 for additional evidentiary development. Such development has now taken place and this claim is ready for appellate review. FINDINGS OF FACT 1. The Veteran has been diagnosed with arthritis of the right lower extremity; this disability did not manifest during, or as a result of, active military service. 2. The Veteran has been diagnosed with a psychiatric disorder other than PTSD; this disability did not manifest during, or as a result of, active military service, nor is it caused by or aggravated by a service-connected disability such as diabetes mellitus or left ear hearing loss. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a disability of the right lower extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for establishing entitlement to service connection for an acquired psychiatric disability other than PTSD, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a 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. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in December 2007 and October 2009 addressed all notice elements listed under 3.159(b)(1) and were sent prior to their respective initial RO decisions. The letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received VA medical examinations in association with his claimed disabilities, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA. Also, in September 2009, VA was notified by the Social Security Administration (SSA) that the Veteran had not filed a claim for disability benefits or there were no medical records obtained with such a claim, as they had no medical records for this Veteran. Additional private treatment records have been associated with the claims file, as well as lay statements submitted by the Veteran in support of his claims. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its February 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that more recent VA treatment records have been associated with the Veteran's electronic claims file (Virtual VA) and that the Veteran's claims file was forwarded to the previous VA examiner for review. An addendum was prepared and incorporated into the claims file. The opinions provided are adequate as they are supported by a rationale. The Appeals Management Center (AMC) later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) evidence of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In-service incurrence by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the 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, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Disability of the Right Lower Extremity The Veteran claims he is entitled to service connection for a disability of the right lower extremity. Specifically, the Veteran asserts that he presently suffers from arthritis of the right lower extremity due to an in-service injury. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran's current arthritis of the right lower extremity did not manifest during, or as a result of, active military service, to include as due to an in-service injury. As such, service connection is not warranted. The Veteran's service treatment records reflect that he was accidentally kicked by another Marine in the right anterior thigh in March 1967. Physical examination was negative except for tender, hard, swelling over the two-thirds of the lateral anterior aspect of the right thigh. The Veteran was placed on crutches and allowed to fully ambulate. By the second day, it was felt he was fit for light duty to involve no running or marching and that he may be discharged from the local clinic after 10 days. A record from the time of injury specifically noted that the Veteran had no hip or knee pain. The Veteran was subsequently diagnosed with a hematoma of the right thigh. Subsequent in-service evidence suggests that this was an acute and transitory condition, resolving upon treatment. The Veteran did not receive treatment for this condition after March 1967 and an evaluation of the lower extremities performed during his August 1968 separation examination was deemed to be normal. Post-service treatment records also demonstrate that the Veteran does not suffer from a current disability related to his in-service hematoma. The first post-service evidence of arthritis is a private treatment note dated February 2006. It was noted that the Veteran was suffering from mild osteoarthritis with joint space narrowing of the right hip and degenerative joint disease with mild medial compartment narrowing of the right knee. It was noted that the Veteran was complaining of chronic right knee and hip pain. However, there was no indication that this condition had been chronic for the past 30 years or that it was somehow related to military service. The record also contains a February 2007 VA outpatient treatment record. According to this record, the Veteran suffered from arthritis pain in the hands, back, knees and shoulders. The Veteran's range of motion was noted to be somewhat restricted due to pain in the legs. A February 2008 record reflects complaints of pain in both hips and knees. According to a VA outpatient treatment note dated May 2008, the Veteran was suffering from arthritis of the hands, knees and hip. A February 2009 X-ray report reflects minimal degenerative changes of the hips, bilaterally. A February 2009 VA primary care note also reflects that the Veteran reported gradually increasing pain in his right hip and knee. He indicated that he had some type of injury in service and that these areas had never been quite right since. A March 2009 VA surgery consultation note reflects that the Veteran described right-sided hip and knee pain that had apparently been going on for many years now. It was noted that this seemed to be getting worse recently. The physician indicated that she was concerned that a lot more of the Veteran's pain was coming from his lumbar spine than degenerative joint disease of the hip, and a hip injection would probably not alleviate this pain. The Veteran was afforded a VA examination of the right lower extremity in September 2012. It was noted that the Veteran was suffering from degenerative joint disease of the right hip and that this condition was diagnosed in approximately 2000. The Veteran reported that his right hip was in constant pain for a long time - probably since 2000. He denied any right hip condition prior to 2000, although he attributed his current condition to a hematoma in the right thigh muscle in March 1967 while on active duty. It was noted that he was accidentally kicked by another Marine in the right anterior thigh and that it became swollen and tender. The examiner noted that hip and knee films revealed some degenerative joint disease of both hips that was moderate in degree. There was also degenerative joint disease of both knees, but the left was obviously worse than the right. The examiner indicated that due to the Veteran's pain pattern, a lot more of his pain could be coming from his lumbar spine than his degenerative joint disease of the hips and knees. The examiner opined that the Veteran's right hip degenerative joint disease was not caused by, or a result of, or related in any way to, active military service, including the episode of hematoma of the right thigh. The examiner explained that the Veteran's in-service injury was a soft tissue injury without any joint trauma. This condition healed well without any residuals. It was not until 2000, approximately 32 years later, that arthritis was found. The examiner noted that this was consistent with age-related changes and occupational/daily wear and tear, and that there was absolutely no credible medical basis for attributing joint arthritis to a right thigh hematoma. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a disability of the right lower extremity. As already noted, service treatment records suggest that the Veteran's in-service hematoma of the right thigh was an acute and transitory condition, resolving prior to separation from active duty. There is no post-service evidence of complaints involving the right lower extremity until 2006 - approximately 38 years after separation from active duty. The Veteran has reported that arthritis was diagnosed in 2000, which would still be approximately 32 years after separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). In the present case, the absence of any record of medical treatment for a disability of the right lower extremity for more than three decades tends to suggest that the Veteran had not been suffering from chronic symptomatology since his separation from active duty. Furthermore, the September 2012 VA examiner opined that the Veteran's current disability of the right lower extremity was not related to military service. The examiner explained that the Veteran himself denied any right hip condition prior to 2000. This was diagnosed as arthritis, and as the examiner explained, there is no credible medical basis for associating a soft tissue injury to the later development of arthritis in a joint. The Veteran's arthritis was consistent with age-related changes and general wear and tear. Finally, the examiner explained that the Veteran's in-service injury healed well and that it resulted in no permanent residual. As such, the preponderance of the evidence of record demonstrates that the Veteran's current arthritis of the right lower extremity did not manifest during, or as a result of, active military service. While there is an absence of continuity of medical treatment and a lack of diagnosed condition until many years after service, the Veteran nevertheless maintains that he has experienced a continuity of symptoms since service. He has supported this assertion with several lay statements. Any credible continuity of symptomatology supported by lay evidence is outweighed by the competent medical opinion to the contrary. The Board recognizes that the Veteran believes his current arthritis is related to his in-service hematoma. However, the record contains no evidence to suggest that the Veteran has the requisite training and expertise to offer a medical opinion as complex as linking arthritis of a joint to a soft tissue injury decades earlier. When considering whether lay evidence may be 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, 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"). The VA physician of record, however, who does have medical training and experience, explained that there is no credible medical basis for making such a connection. As such, the Veteran's assertion of a relationship between these two disabilities is not competent evidence of causation and the assertion of continuity of symptomatology is outweighed by the competent and credible medical opinion evidence. The record also contains a number of statements from individuals familiar with the Veteran in support of his claim. According to the Veteran's step-daughter, she had observed problems with the Veteran's right hip and knee. The Veteran's son also noted in a statement dated February 2009 that over the last several years he had been complaining about how badly his hip had been bothering him. Additional statements dated in February 2009 from a friend, T.W., and D.L. also reflect that they had witnessed the Veteran having increasing difficulties with walking over the years. These statements credibly reinforce the contention that the Veteran has been suffering from pain in the right lower extremity for a number of years. These individuals, however, are not competent to provide a nexus opinion on the complex medical matter of whether the Veteran's symptoms are ultimately due to the in-service injury. Thus, these statements while credible are outweighed by the competent and credible medical opinion evidence that shows that the Veteran's current hip and knee disabilities are not etiologically related to the in-service soft tissue injury. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a disability of the right lower extremity must be denied. Acquired Psychiatric Disability The Veteran also contends that he is entitled to service connection for a psychiatric disability. Specifically, the Veteran has asserted that he suffers from an acquired psychiatric disability due to his service-connected disabilities. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a current psychiatric disability that manifested during, or as a result of, active military service, nor does he suffer from a psychiatric disability that was caused by, or permanently aggravated by, a service-connected disability. As such, service connection for an acquired psychiatric disability is not warranted. The Veteran's service treatment records reflect no diagnosis of a psychiatric condition or treatment for any associated symptomatology. According to the Veteran's August 1968 separation examination report, a psychiatric evaluation was deemed to be normal at this time. Post-service treatment records also fail to reflect that the Veteran suffers from a psychiatric disability that manifested during, or as a result of, active military service, or that was caused by or permanently aggravated by a service-connected disability. The first evidence of psychiatric symptomatology is the Veteran's October 2007 claim seeking service connection for PTSD. At this time, the Veteran asserted that he had been suffering from PTSD since 1967. The Board notes that the issue of entitlement to service connection for PTSD was previously denied by the Board in February 2012. The Veteran did not appeal this decision and the only remaining issue before the Board is entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include as secondary to a service-connected disability. According to a February 2007 VA treatment record, the Veteran was being seen for an evaluation as a new patient. The Veteran was afforded a PTSD screening and a depression screening. The Veteran did not endorse any symptomatology, answering "not at all" when asked if he felt down, depressed or hopeless, or, if he had little interest or pleasure in doing things. The Veteran was afforded a VA psychiatric examination in January 2010. The Veteran denied any current treatment for a psychiatric disorder, but he endorsed low energy and lack of motivation. He also reported apathy about living and a lack of joy and pleasure. These symptoms were mild and they occurred daily. This had been going on for the past year. It was also noted that the Veteran's wife died suddenly of a heart attack in October 2008. The examiner assigned an Axis I diagnosis of an adjustment disorder with depressed mood. The psychosocial and environment factor contributing to this disorder (Axis IV) was noted to be the death of the Veteran's wife. The examiner opined that the Veteran's acquired psychiatric condition, to include depression and anxiety, was not caused by or a result of his service-connected diabetes mellitus type II. The examiner explained that the Veteran reported depressed mood but did not report significant anxiety symptoms upon examination. The Veteran's symptoms were related to the death of his wife in October 2008 and the difficulties he was having recovering from this loss. There was no objective evidence that his reported mood changes were due to his service-connected diabetes mellitus type II. The examiner also explained that there was no objective evidence of functional impairment based on depression alone in the Veteran's prior occupational function. He retired after 25 years in 1998 and reported that since his wife died, he had not made any new friends and was isolated. The Veteran's claims file was forwarded to the above examiner for an additional opinion in September 2012. The examiner opined that the Veteran suffered from an adjustment disorder with depressed mood that was not caused by or a result of his military service. The examiner explained that the onset of the Veteran's symptoms was too remote in time from his discharge to reasonably be connected or related. There was no evidence of a depressive disorder during service and no objective evidence that he developed a depressive disorder within one to two years of separation. In fact, the Veteran reported that he had only been experiencing depressive symptoms for about a year during his January 2010 examination. There was also no objective medical evidence found of aggravation of depression due to diabetes mellitus or left ear hearing loss. An addendum to the above examination report was prepared in October 2012 so that further rationale could be provided. The examiner opined that the Veteran's adjustment disorder with depressed mood was not caused by or a result of his left ear hearing loss. The examiner explained that there was no objective evidence to support such a relationship. The Veteran reported that the onset of his depression was a year prior to the examination and there was no medical evidence of a psychological mechanism caused by hearing loss that would result in depression. The examiner also opined that the Veteran's mental disorder was not caused by or a result of his service-connected diabetes. The examiner explained that the Veteran reported depressed mood with sleep impairment, low energy and motivation, and anhedonia. This was related to the loss of the Veteran's wife in October 2008 and his difficulty overcoming this loss. In addition, the Veteran's was having a difficult time adjusting to his retirement since he worked for 25 years and now found himself isolated. There was no objective evidence that the reported mood changes were related to diabetes mellitus. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for an acquired psychiatric disability other than PTSD, to include as due to a service-connected disability such as hearing loss or diabetes mellitus. The Veteran's service treatment records reflect no diagnosis of a psychiatric condition or any treatment for associated symptomatology. In fact, the first evidence of psychiatric complaints is the Veteran's claim of October 2007 [which was for PTSD related to in-service stressful events (Khe Sanh-Tet Offensive). It was in January 2009 when the Veteran first raised that he had a psychiatric disorder other than PTSD that was related to service connected disability]. This is approximately 39 years after separation from active duty. The Veteran has not specifically contended that a psychiatric disorder other than PTSD related to service connected disability had its onset in service and that he had had symptoms ever since service. (Rather, that is an assertion associated with the PTSD claim which was denied by the Board in a prior decision.) It was not until January 2009 that the Veteran first alleged he in fact suffered from a psychiatric disorder other than PTSD as secondary to a service-connected disability. Indeed, the Veteran reported to the January 2010 VA examiner that his symptomatology had only been occurring for the past year. The examiner opined that the Veteran suffered from an adjustment disorder with depressed mood that was not caused by or a result of his service-connected diabetes mellitus type II. The Veteran's symptoms were related to the death of his wife in October 2008 and the difficulties he was having recovering from this loss. The examiner further explained in September 2012 that the Veteran's disability was not caused by or a result of his military service. The examiner explained that the onset of the Veteran's symptoms was too remote in time from his discharge to reasonably be connected or related. There was also no psychiatric symptomatology during service and no objective evidence that he developed a depressive disorder shortly after separation. There was also no objective medical evidence found of aggravation of depression due to diabetes mellitus or left ear hearing loss. Finally, in October 2012, the examiner opined that the Veteran's adjustment disorder with depressed mood was not caused by or a result of his left ear hearing loss or diabetes mellitus. The examiner explained that there was no objective evidence to support such a relationship and that the Veteran reported that the onset of his depression was a year prior to the examination. The Veteran's symptomatology was related to the loss of his wife in October 2008, his difficulty overcoming this loss and his difficulty adjusting to retirement. The Board recognizes that the Veteran believes he suffers from a psychiatric disability that manifested as a result of service-connected disability such as diabetes mellitus and left ear hearing loss. However, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer such a medical conclusion. Also, this assertion is directly contradicted by the VA psychologist of record, who has repeatedly found that the Veteran's depression arose as a result of post-service events, including the unexpected death of the Veteran's wife and his adjusting to retirement after working for so many years. As such, the Veteran's assertions do not demonstrate that service connection is warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include as due to a service-connected disability, must be denied. ORDER The claim of entitlement to service connection for a disability of the right lower extremity is denied. The claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to service-connected diabetes mellitus and left ear hearing loss, is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs