Citation Nr: 1311046 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-06 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for depression. ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran had active duty service from September 1988 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran had requested a hearing, but the Veteran cancelled the scheduled meeting in January 2009 and there is no indication in the file that he requested the hearing be rescheduled or has renewed his request. The Board therefore finds that the request for the hearing is withdrawn. 38 C.F.R. § 20.704(d). In September 2011, the Board reopened the Veteran's claim for service connection for depression and remanded the case to the RO to provide the Veteran a VA examination and to obtain medical opinions. VA has provided the Veteran a VA examination in October 2011. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the issuance of the supplemental statement of the case in July 2012, the Veteran submitted to the Board additional evidence and expressly did not waive initial consideration of the evidence by the agency of original jurisdiction. As the Board has resolved the claim of service connection for depression in the Veteran's favor and the decision is a full grant of the benefit sought on the appeal, there is no prejudice to the Veteran by failing to have the RO initially consider the Veteran's new evidence. The Board also notes receiving in March 2013 evidence from the Veteran regarding his service-connected migraine headaches and traumatic brain injury disabilities. The Board construes this submission as a claim by the Veteran for increased ratings for the migraine headaches and traumatic brain injury disabilities. The issues of an increased rating for migraine headaches and an increased rating for total brain injury have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action FINDINGS OF FACT The Veteran's depression has been related to his service-connected disabilities. CONCLUSION OF LAW Depression is proximately due to the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. As claim of service connection for depression is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA with regard to the claims to reopen is not necessary. Facts and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be established by either continuity of symptomatology after service under 38 C.F.R. § 3.303(b) or by initial diagnosis of the medical condition after service under 38 C.F.R. § 3.303(d). The Federal Circuit recently held that continuity of symptomatology under 3.303(b) applies only to chronic diseases listed in 3.309. Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Depression is not listed as a disease under § 3.309 as a chronic disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). In addition, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection includes the concept of aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995)(en banc). In October 2006, 38 C.F.R. § 3.310(a) was amended to conform to Allen; additionally, other substantive changes were made. As the claim was filed before the other substantive changes were made, only the changes that conform to Allen apply. Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). The Veteran is service-connected for migraine headaches, traumatic brain injury, limitation of motion and tendonitis of the right knee, degenerative changes of the cervical spine, osteoarthritis of the acromioclavicular joint with right shoulder strain, and pseudofolliculitis barbae. The Veteran's statements indicate that his depression is linked to his ex-wife's suicide, however the Veteran also asserts that his depression may be related to his discharge from the Navy along with his chronic pain and headaches. More specifically, the Veteran states that he intended to make the military his career, but after he suffered a head injury in August 1996, his resulting symptoms of headaches and pain prevented him from performing his service duties. The Medical Evaluation Board and the Physical Evaluation Board determined he was unfit for further duty, resulting in his separation in August 1997. As a result, the Veteran states his depression symptoms began because he realized his chosen career was over. He acknowledges the symptoms worsened after his ex-wife committed suicide and he had to raise their child alone. The Veteran also asserts that the symptoms of his physical disabilities such as his continuing headaches have aggravated his depression symptoms. In the entrance examination, the Veteran did not give a history of depression and the mental health examination was normal. A review of the service treatment records does not reveal any complaints, symptoms, diagnosis, or treatment for depression or depression symptoms. In August 1996, the Veteran fell off a barge with a loss of consciousness. Thereafter, the Veteran developed chronic recurrent headaches and was diagnosed with post-concussive syndrome. In May 1997, the Medical Evaluation Board determined the Veteran had recurrent mixed headaches, both migraine and muscle tension headaches, resulting from the August 1996 incident. The Board determined that the Veteran was unfit for further duty. In November 1997, the Veteran was examined by VA for his closed head injury disability, currently designated as a traumatic brain injury, and the Veteran was diagnosed status close head injury with post-concussive syndrome, but the examiner specifically determined the Veteran did not appear depressed at the time of the examination and his general attitude was optimistic. Tragically, in or around April 2004, the Veteran's ex-wife committed suicide which resulted in the Veteran having to raise his son by himself. By November 2004, the Veteran reported he knew he was depressed but was not suicidal. In February 2005, the Veteran was diagnosed with major depressive disorder after the Veteran reported depressive symptoms resulting from the suicide of his ex-wife, the death a month later of the grandmother who raised him, trying to raise his son as a single parent, and the loss of his military career. In September 2007, the Veteran was diagnosed with a cognitive disorder that the evaluating psychiatrist attributed to the Veteran's traumatic brain injury. The Veteran was not depressed and not very anxious. In a neuropsychiatric evaluation in October 2007, the diagnosis was listed as "rule out depression disorder" but the inconsistencies in the testing precluded a valid interpretation and diagnosis. In a September 2009 VA examination evaluating the Veteran's traumatic brain injury disability, it was noted the Veteran had been depressed since his ex-wife's suicide but his headaches had worsened since that time and the Veteran appeared somewhat depressed. In October 2011, the Veteran was provided a VA examination regarding his depression disability. The diagnosis was recurrent major depression disorder, noting symptoms such as depressed mood and sleep disturbance. The examiner concluded that it was less likely than not that the depression disability was related to or began in service, including the fact that he was determined unfit for service and discharged earlier than he planned. While the Veteran believed his life would be better had he remained in the military, the examiner noted there was no signs of depression in service or after until 2005, or when the Veteran suffered the stresses of his ex-wife's suicide, the death of his grandmother, and raising his young son. On the other hand, the examiner also concluded that it was as likely as not that the Veteran's service connected disabilities such as his recurrent headaches from the traumatic brain injury added to, i.e., aggravated the depression disability beyond its natural progression. The examiner stated, however, that he could not separate out what level of severity of the Veteran's depression resulted solely from the aggravation caused by the service connected disabilities. In July 2012, the Veteran's primary mental health provider at VA issued a report diagnosing major depressive disorder, NOS, moderate to severe along with a diagnosis of complicated bereavement. In his opinion, the head injury and resulting loss of career was more likely than not the onset of the Veteran's current mental health disability, although events such as the ex-wife's suicide worsened his overall mental health condition. In light of the opinion of the October 2011 VA examiner, the Board finds that it is not necessary to address the issue of direct service connection, including the July 2012 report of the Veteran's mental health provider, as the examiner's opinion from October 2011 is sufficient to establish service connection on a secondary basis. See 38 C.F.R. § 3.310(a) (2011); Allen, 7 Vet. App. at 439. The Board finds the October 2011 VA opinion to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion of the VA examiner is well reasoned, detailed, provides a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms. It accounts for not only what happened to the Veteran in service, but also what appears to be the Veteran's clinical course after separation. Moreover, there is no competent medical evidence of record to rebut the opinion in support of the Veteran's claim or otherwise diminish its probative weight. Because of the competent nexus opinion relating the Veteran's depression disability to his service-connected disabilities is supported by the record and also is not contradicted by any evidence of record, service connection for an acquired psychiatric disability is warranted. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that his depression disability is related to his service connected right shoulder , and service connection is warranted on a secondary basis. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. ORDER Entitlement it service connection for depression secondary to service-connected disabilities, is granted, subject to the applicable regulations concerning the payment of monetary benefits. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs