Citation Nr: 1315713 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 05-08 835 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include depression, including as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran had a period of honorable active service from March 1970 to January 1972, including in the Republic of Korea. Because the Veteran received an other than honorable discharge for a second period of active service between April and October 1972, this is a bar to VA benefits for any disease or injury incurred during this period of service. See 38 C.F.R. § 3.12 (2012). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. A Central Office Board hearing was held in April 2006 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. In May 2007, October 2008, November 2010, and November 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Because the Veteran currently resides within the jurisdiction of the RO in Houston, Texas, that facility retains jurisdiction in this appeal. The Board notes that initially, the Veteran's appeal consisted of seven claims. Six of the claims were disposed of in prior Board decisions. The only remaining claim is the claim addressed herein, for service connection of an acquired psychiatric disorder other than PTSD, to include depression. As noted in the November 2012 Remand, the issues of entitlement to a disability rating greater than 20 percent for diabetes mellitus, entitlement to a disability rating greater than 10 percent for coronary artery disease, entitlement to a compensable disability rating for hypertension, entitlement to service connection for a cardiovascular disability other than coronary artery disease, to include valvular heart disease, congestive heart failure, heart murmur, and a carotid endarectomy, entitlement to service connection for glaucoma, entitlement to service connection for anemia, and entitlement to service connection for hyperlipidemia have been raised by the record but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran filed all of these claims on a VA Form 21-526b, "Veteran's Supplemental Claim For Compensation," submitted directly to the Board in August 2012. Therefore, the Board does not have jurisdiction over these claims and they are referred to the AOJ for appropriate action. FINDING OF FACT The competent evidence of record shows that the Veteran does not experience any current acquired psychiatric disability other than PTSD, including depression or dysthymic disorder, which can be attributed to active service or a service-connected disability. CONCLUSION OF LAW An acquired psychiatric disability other than PTSD, to include depression, was not caused or aggravated by active service or a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a May 2003 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. A June 2003 RO rating decision reflects the initial adjudication of the claim after issuance of the May 2003 letter. Post rating, a November 2008 letter provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. After issuance of the November 2008 letter, and opportunity for the Veteran to respond, the July 2010 supplemental statement of the case (SSOC) reflects readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this 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 an SOC or SSOC, is sufficient to cure a timing defect). After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As explained below, a December 2003 VA treatment record has raised the theory of entitlement to service connection on a secondary basis. The Board acknowledges that the May 2003 notice letter did not address the possibility of secondary service connection with respect to the claim of service connection for an acquired psychiatric disorder. Despite the possible notice error, such error is not prejudicial as additional notice would not benefit the claim. As discussed below, the December 2003 VA outpatient treatment record contained a tentative diagnosis of a disorder due to diabetes mellitus, and indicated that it was one of three possible acquired disorders. None of the remaining evidence of record suggests any relationship between the Veteran's acquired psychiatric disorder and diabetes mellitus. Significantly, in the April 2013 Informal Hearing Presentation, the Veteran's representative indicated that all requirements have been met and that the claim was ready for resolution. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's service treatment records, private treatment records, and VA outpatient treatment records have all been associated with the claims file. Further, the Veteran supplied his own copy of Social Security Administration records, which have been associated with the file. Next, the Veteran was provided with VA examinations in January 2009 and June 2012, as well as addendum opinions rendered in June 2009 and January 2013. The Board finds that the January 2009 VA examination report is adequate as to the dysthymia diagnosis provided as the VA examiner reviewed the Veteran's medical records and conducted a thorough mental health interview with the Veteran; however, the report was incomplete as it did not provide a nexus opinion for dysthymia. The Board acknowledges that the January 2009 VA examiner did not have the claims file available for review, but that the examiner indicated review of all of the medical records. The examiner reviewed the claims file in preparation of the June 2009 addendum opinion; however, the June 2009 opinion is also incomplete as the VA examiner concluded that the Veteran's dysthymia was not related to military service but did not offer any rationale for the opinion. Similarly, the Board finds that the June 2012 VA examination report was incomplete with regard to the nexus opinion. Although, notably, the VA examiner reviewed the claims file and conducted a thorough mental health interview with the Veteran. Thus, the Board finds it was adequate with regard to the diagnosis provided but was incomplete with regard to the nexus opinion. In compliance with the November 2012 Remand, a VA addendum opinion was provided by the June 2012 VA examiner in January 2013. The Board finds that the examiner complied with the November 2012 Remand directives as the examiner provided rationale for the June 2012 nexus opinion. Moreover, the examiner's opinion was based on a review of the Veteran's claims file and thorough interview with the Veteran in June 2012. The Board also acknowledges that the Veteran was diagnosed with three tentative mental health disorders in December 2003, including a "mood disorder due to diabetes mellitus, in partial remission." The Board acknowledges that the Veteran is service-connected for diabetes mellitus. Although not raised by the Veteran, given the December 2003 treatment record, the Board has considered whether a remand for consideration of service connection on a secondary basis, and/or VA examination regarding the same, is necessary. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Board acknowledges that the VA examination reports of record do not contain opinions with regard to secondary service connection. However, aside from the tentative diagnosis in December 2003, the remaining evidence of record indicates that VA mental health professionals reviewed the Veteran's claims file, acknowledged that he had a diagnosis of diabetes mellitus, and did not note any correlation between the diabetes mellitus and acquired psychiatric disorder. Significantly, the Veteran has not claimed entitlement to service connection on a secondary basis. He had a personal hearing before the Board in April 2006, at which time claims for service connection of diabetes as well as depression and PTSD were on appeal and the Veteran never indicated any contention that his diabetes caused or aggravated his acquired psychiatric disorder(s). Based on the foregoing, the Board finds that a remand for consideration of the claim on a secondary basis and/or a VA examination or opinion regarding entitlement to service connection on a secondary basis, would only unduly delay resolution of the claim. As such, the Veteran is not prejudiced by the Board proceeding with resolution of the claim at this time. Next, the Veteran was afforded a hearing before the Board in April 2006. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ specifically noted the issue as entitlement to service connection for depression, as distinguished from his claim for service connection for PTSD. Transcript [T.] page 2. The Veteran was assisted at the hearing by an accredited representative from Military Order of the Purple Heart of the U.S.A. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ asked the Veteran if anyone had ever related the depressive disorder diagnosis to military service. T. page 40. The VLJ also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. T. pages 40-42. The VLJ also explained to the Veteran that in order to have his claim granted, he would need to show that he had a current diagnosis, something in service, and a link between the diagnosis and service. T. page 42. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence which related the Veteran's depression to active service, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third Davidson elements, for specific chronic diseases only, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the post-service symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). However, even under this regulation, medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Id. The specific chronic diseases to which 38 C.F.R. § 3.303(b) applies, are listed at 38 C.F.R. § 3.309(a). See Walker, 708 F.3d at 1338. Psychiatric disabilities are not included in the list of specific chronic diseases to which 38 C.F.R. § 3.303(b) applies. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. In this case, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder, other than PTSD. Specifically, the claim fails with respect to Davidson element (3), nexus to service. Regarding Davidson element (1), the Veteran has current diagnoses of a dysthymic disorder and depressive disorder not otherwise specified. See e.g., January 2006 VA outpatient treatment record, January 2009 and June 2012 VA examination reports, and VA outpatient treatment records generally. In December 2003, he was also diagnosed with three tentative disorders including, adjustment disorder with mixed anxiety and depressed mood versus major depressive disorder in partial remission versus mood disorder due to diabetes mellitus in partial remission. Thus, element (1) has been met. Regarding Davidson element (2), the Veteran offered sworn testimony that he was in fear for his life during his first period of service, when he had orders to go to Vietnam and saw service members returning with severe injuries. T. page 35. His treatment records do not reflect any treatment for depression. However, affording the Veteran the benefit of the doubt, the Board finds that Davidson element (2) has been met. Turning to the crucial, Davidson element (3) however, the claim fails for lack of a nexus to service. In the January 2013 addendum opinion, the June 2012 VA examiner opined that it was less likely than not that the Veteran's acquired psychiatric disorder was related to service. The examiner based the decision on the fact that the Veteran did not seek mental health care during service, did not experience depressive symptoms chronically since service, and that there was no evidence to support a plausible link between the Veteran's in-service stressor and his depressive symptoms. The Board acknowledges that the Veteran offered sworn testimony that he was in fear for his life during service and that he believes that his attitude during his second period of service (which led to an other than honorable discharge) was because he was experiencing depressive symptoms. However, the Board notes that the VA examiner reviewed the Veteran's claims file, which includes his hearing transcript, as well as completed a thorough interview with the Veteran in June 2012. Based on the totality of the evidence, the examiner reached the conclusion that there was no evidence to support a plausible link between the in-service stressor and the current depressive disorder. The Board places a high probative value on the January 2013 VA opinion. The Board has reviewed the remaining evidence of record, including VA outpatient treatment records and private treatment records, but none of the evidence supports a link between service and his acquired psychiatric disorder. A June 2003 private evaluation that reviewed the Veteran's depression as well as physical disorders, noted that the Veteran reported that he began treatment for depression in November 2002. The June 2003 record noted that the Veteran reported that he felt depressed on and off over the years but not enough to need treatment. He also reported that he became more aware of his depression after he lost his job in October 2001. The diagnosis was long history of recurrent mild depression, probably situational. The private physician did not attribute the Veteran's depression to any particular etiology. Similarly, in two different December 2003 VA outpatient treatment records, the Veteran reported that he had been depressed since his divorce from his wife in the mid-late 1990's. During the December 2003 social work consult, he also reported that he had also been depressed periodically since childhood and he believed that his military service contributed to his depression. The December 2003 social worker did not offer an opinion as to the etiology of the Veteran's depression. Following the interview with the Veteran, the December 2003 VA mental health physician diagnosed three tentative disorders including adjustment disorder with mixed anxiety and depressed mood versus major depressive disorder in partial remission versus mood disorder due to diabetes mellitus in partial remission. The VA physician did not offer a definite diagnosis or etiology opinion. The Board has also considered the Veteran's statements that his current depressive disorder is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the etiology of a depressive disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As Davidson element (3) has not been met, the Board finds that the claim must be denied with respect to direct service connection. As discussed above, the Board has also considered whether the Veteran is entitled to service connection on a secondary basis. In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The revised regulation requires comparison of the baseline level of severity of the disorder in the absence of the service-connected disability to the increased severity, and provides compensation only if there is an increase in severity. 38 C.F.R. § 3.310 (2012). In this case, the Veteran filed his claim prior to October 2006, thus the more stringent regulation does not apply. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In this case, Wallin element (2) has been met as the Veteran is service-connected for diabetes mellitus. However, the claim fails as elements (1) and (3) have not been established. Regarding the December 2003 VA outpatient treatment record, the record contained tentative diagnoses of three possible mental health disorders, including a mood disorder due to diabetes mellitus. The diagnosis was not definitive. In fact, each of the disorders listed, was listed as "versus" another disorder. Essentially, the December 2003 assessment was an indication that the Veteran might have a mood disorder due to diabetes, but it was not a definite diagnosis. Even if the Board were to accept the diagnosis of a mood disorder as a definitive diagnosis, no rationale was provided to support the remainder of the statement, that it was "due to diabetes mellitus." As such, Wallin element (3) has not been met. As discussed above, since the December 2003 tentative diagnosis in question, the Veteran has undergone VA outpatient treatment, a private evaluation, as well as VA examinations. While all of the practitioners who have treated him have acknowledged that he also suffers from diabetes mellitus, none of those practitioners has related the Veteran's acquired psychiatric disorder to his diabetes mellitus or indicated that any acquired psychiatric disorder was aggravated by diabetes mellitus. For example, a January 2006 VA clinical psychologist considered that the Veteran was disabled and suffered from depression and diabetes; however, the psychologist did not draw a correlation between the two disabilities. Rather, the January 2006 VA psychologist noted the Veteran's reports of trauma in service as well as post-service trauma during Hurricane Katrina and concluded that the Veteran's Axis I diagnosis was dysthymia. Other subsequent VA treatment records consistently listed the Veteran's diagnosis as a depressive disorder not otherwise specified. A February 2007 VA outpatient treatment record actually noted that the Veteran's mental health was stable and that there was no evidence of a mood disorder. Additionally, a June 2003 private evaluation noted that the Veteran had a diagnosis of diabetes mellitus, but noted that the Veteran's mild depression was likely situational. Meanwhile, VA examiners in January 2009 and June 2012 diagnosed dysthymia. The VA examiners indicated that their diagnoses were based upon a review of the medical records, which would have included the December 2003 VA treatment record. The Board acknowledges that the January 2009 VA examiner did not have the claims file available for review, but that the examiner indicated review of all of the medical records. Additionally, the examiner later reviewed the claims file in connection with the June 2009 addendum opinion. Moreover, a June 2012 VA examination report regarding diabetes mellitus did not list an acquired psychiatric disorder when prompted to list other problems associated with diabetes mellitus. As the December 2003 VA outpatient treatment record merely contained a tentative diagnosis of mood disorder due to diabetes and the remaining evidence of record does not indicate a relationship between the Veteran's acquired psychiatric disorder and diabetes, the Board finds that the claim fails on a secondary basis. For the foregoing reasons, service connection is not warranted for an acquired psychiatric disorder other than PTSD, on direct or secondary bases. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disability other than PTSD, to include depression, including as secondary to a service-connected disability, is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs