Citation Nr: 1313767 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-35 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, depression, and an adjustment disorder. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to October 1987, January 1994 to May 1994, and from March 2002 to July 2002. He had additional periods of service in the Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has accordingly characterized the mental health issue as shown on the title page. In his formal appeal, VA Form 9, received at the RO in September 2009, the Veteran requested a Travel Board hearing. The requested hearing was postponed from July 2011, due to a request from the Veteran, and rescheduled for June 2012. The Veteran was advised as to the date and time of the hearing. He failed to appear for the hearing without explanation and has not requested the hearing be rescheduled. Therefore, the request is considered withdrawn. See 38 C.F.R. 20.704(e) (2012). In July 2012 and November 2010, the Board remanded this matter for additional development. The case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. FINDING OF FACT The preponderance of the evidence does not support a finding that a relationship exists between a diagnosed acquired psychiatric disorder and military service. CONCLUSION OF LAW An acquired psychiatric disability was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter on two occasions. In July 2012, the Board specifically instructed the RO/Appeals Management Center (AMC) to provide the Veteran with an examination to determine the nature and etiology of any acquired psychiatric disorder, and to readjudicate the claim. Subsequently, the Veteran was afforded an examination in August 2012, and his claim was readjudicated in a September 2012 supplemental statement of the case (SSOC). In November 2012, the Board, having determined that the August 2012 VA examination report was inadequate, remanded this matter again to provide another examination, and to readjudicate the claim. Subsequently, the Veteran was afforded another examination in February 2013, and his claim was readjudicated in a February 2013 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in April 2008, prior to the June 2008 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The letter also notified the Veteran of the process by which initial disability ratings and effective dates are established as set forth in Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, the Veteran was provided VA examinations for his claim. Review of these examination reports reflect that cumulatively the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. As noted above, the Veteran declined to present testimony before a Veterans Law Judge. Thus, the duties to notify and assist have been met. Analysis The Veteran contends that he has a psychiatric disorder, to include depression and anxiety, as a result of motor vehicle accidents during service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the record contains many private treatment records showing in pertinent part treatment and diagnoses of anxiety, depression, and an adjustment disorder. Additionally, the September 2010 examination report reflected a diagnosis of major depressive disorder, single episode, moderate severity in remission. The August 2012 VA examiner noted a diagnosis of depression, single episode, in remission. He opined that "the [V]eteran is not currently suffering from any diagnosable psychiatric condition etiologically related to [the in-service motor vehicle accidents]." Most recently, as to inquiry whether the Veteran had a diagnosis of an acquired psychiatric disorder at any time since March 2008, the February 2013 VA examiner reiterated the August 2012 VA examiner's finding that the Veteran suffered from major depression, single episode, which resolved with adequate treatment from medications and counseling. Although the Veteran does not have a current diagnosis of a disorder, he has been shown to have had a diagnosis of a disorder during the course of the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (finding that the "current disability" requirement is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."). Therefore, Hickson element (1) has been met. With respect to in-service disease, the Board notes that a July 2003 private treatment record noted that the Veteran had episodes of depression related to career choices at age 20 while he was overseas in the Air Force. However, service treatment records are completely negative for any diagnosis or complaints related to an acquired psychiatric disorder. Notably, periodic examination reports reflected normal psychiatric evaluations and the Veteran consistently denied depression/excessive worry/nervous trouble of any sort throughout service. Therefore, the weight of the evidence is against finding that in-service disease has been demonstrated. Turning to in-service injury, the Board notes the Veteran's contention that his psychiatric disorder was due to his 1985 and April 2002 in-service motor vehicle accidents. The record includes an April 2002 Wisconsin Motor Vehicle Accident Report confirming the Veteran's assertion of an accident. Thus, the Board finds that Hickson element (2) is satisfied. With respect to crucial element (3), causal relationship, the question presented, i.e., the relationship, if any, between the Veteran's current disorder and service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The relevant evidence of record includes a June 2010 statement form the Veteran's private counselor, K.M., noting that the Veteran told her he was attempting to establish a link between traumatic life events (such as an in-service motor vehicle accident in March 2002), exacerbated by the pressures of working on active duty, and psychological difficulties that he subsequently experienced in/around and after March 2002. She stated that she was comfortable affirming that this correlation was very likely. In a June 2012 letter, D.T., M.D., stated that the Veteran was currently under treatment for generalized anxiety disorder. Dr. T recounted the Veteran's history of motor vehicle accidents during service, and his belief that his anxiety problems started following these episodes and have continued ever since those accidents. Based on the Veteran's assertions, Dr. T opined that the Veteran's history of in-service motor vehicle accidents "do seem to be a reasonable trigger for his current anxiety problems." On VA examination in September 2010, the Veteran reported an in-service motor vehicle accident in April 2002 that reminded him of another in-service motor vehicle accident in London in 1985. In noting a diagnosis of major depressive disorder, single episode, moderate severity in remission, the examiner stated that the Veteran was involved in two car accidents while on active duty but that these accidents were not related to in-service activities. The examiner also stated that the Veteran was suffering from major depression and this required continuous medication and counseling. Having determined that the September 2010 VA examination report was inadequate, the Board remanded the matter for further evaluation and the Veteran subsequently underwent another VA examination in August 2012. The examiner diagnosed the Veteran with depression, single episode, in remission. He opined that "the [V]eteran is not currently suffering from any diagnosable psychiatric condition etiologically related to [the in-service motor vehicle accidents]." Most recently, the February 2013 VA examiner indicated that the Veteran's depression, in remission, was less likely as not etiologically related to in-service events, including the motor vehicle accident. The examiner found instead that the Veteran's depression was more likely than not due to his marital issues, which were not related to service. While the Board may not reject a favorable medical opinion based on its own unsubstantiated medical conclusions, the Board does have the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Obert v. Brown, 5 Vet. App. 30, 33 (1993); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet App 295, 304 (2008). In this case, as to the issue of the etiology of an acquired psychiatric disorder, the Board finds that the February 2013 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, and in consideration of the Veteran's reported history. The examiner considered the Veteran's complete record, which included the positive private medical opinions, as well as his service treatment records. Significantly, the VA examiner's findings are consistent with the medical evidence of record which demonstrated that the Veteran experienced psychiatric difficulties related to work and marriage issues. There is nothing in those treatment records showing that the Veteran's current psychiatric issues were related to any service incident, to include his motor vehicle accidents. On the other hand, the private clinicians only provided very speculative, tentative statements as to a relationship between the Veteran's disorder and service without providing any discussion as to other issues in the Veteran's life that may have caused his disorder. These private opinions were based largely on the Veteran's contentions and are not supported by the evidence of record. There is no indication that either private clinicians reviewed any of the Veteran's medical records. Furthermore, the record includes numerous treatment records from Dr. T demonstrating the Veteran's psychiatric issues stemming from work and his marital situations, yet Dr. T failed to mention or account for these factors in rendering his opinion. Accordingly, the Board concludes that the VA opinion is found to carry significantly more weight. In making all determinations, the Board has considered the lay assertions of record. In this regard, 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) (noting that 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). Here, the Board finds that the Veteran's reported history as to the manifestations and continuation of psychiatric problems in and since active service, while competent, is nonetheless not credible. Significantly, the Veteran denied having/ever having depression/excessive worry/nervous trouble of any sort throughout service and at separation from this first period of service (following his first contended accident). This is not a case in which the Veteran's service treatment records are merely silent on the matter under consideration. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Rather, the record reflects that he expressly denied such symptomatology. Furthermore, there is no documented evidence of any psychiatric problems in the record until 2003 in conjunction with domestic issues. Emphasis is placed on the gap between the dates of the motor vehicle accidents (1985 and April 2002) and initial documented evidence of psychiatric problems. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (indicating that "evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the [V]eteran's health and medical treatment during and after military service, as evidence of whether a pre-existing condition was aggravated by military service"). There is simply no evidence, other than statements from the Veteran to support the assertion that he had a psychiatric disorder ever since his accidents. For the reasons set forth above, however, the Board finds the Veteran's statements asserting continuity of symptomatology since service lack credibility and are without probative value. See, e.g. Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). As to the Veteran's contentions that a relationship exists between his diagnosed disorder and service, the Board again acknowledges that the Veteran is competent to testify as to his symptoms. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of a disorder during service or a medical opinion regarding the etiology of his psychiatric disorder. See 38 C.F.R. § 3.159 (a)(1) (2012) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current disorder, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). For all of these reasons, the Board gives more credence and weight to the February 2013 VA examiner's opinion as it was rendered after an extensive evaluation of the Veteran and review of the Veteran's history by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). ORDER Service connection for an acquired psychiatric disorder, to include anxiety, depression, and an adjustment disorder, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs