Citation Nr: 1315723 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-43 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, to include consideration as secondary to right knee and right ankle conditions. REPRESENTATION Veteran represented by: Blythe R. Gemming, Esq. ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1983 to July 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In light of the evidence of record and Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized this issue on appeal, as reflected on the title page. In March 2011 the Board remanded the case for additional development. In addition to reviewing the Veteran's paper claims folder, the Board has surveyed and considered the contents of his Virtual VA file. The additional evidence contained therein is considered part of the constructive record under VA's current guidelines. FINDING OF FACT Resolving all doubt in favor of the Veteran, his anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS are related to his service-connected disabilities. CONCLUSION OF LAW Anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS are proximately caused by service-connected disabilities. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for acquired psychiatric disability, diagnosed as anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In addition, a disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Further, the United States Court of Appeals for Veterans Claims (Court) has held that the term "disability" as used in 38 U.S.C.A. § 1131 should refer to "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." Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that, effective October 10, 2006, 38 C.F.R. § 3.310 was amended in order to implement the holding in Allen regarding secondary service connection on the basis of the aggravation of a nonservice-connected disorder by a service-connected disability. See 71 Fed. Reg. 52744 (2006). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 at 1316; 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 at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his currently diagnosed psychiatric disorders are related to his military service, and that he has had psychiatric problems since service. Alternately, he contends that they are proximately due to or the result of his service-connected physical disabilities. Currently, service connection is in effect for right ankle and right knee disabilities. The evidence, which includes service treatment records (STRs), VA medical records, private treatment records, VA examination reports, a Vocational Rehabilitation Evaluation, and lay evidence, shows that the Veteran has a current psychiatric disability. Specifically, during the appeal period his diagnosed disabilities have included anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS. STRs are negative for psychiatric complaint, treatment, or diagnosis. Both the entrance and separation examinations show normal psychiatric findings. The first evidence in the record showing a psychiatric symptom is a November 2006 VA treatment record showing a positive PTSD screen. This occurred shortly after the Veteran first visited a VA facility, and led to the Veteran's first VA psychology and mental health evaluations in November 2006 and December 2006, respectively. In December 2006 a VA psychiatrist diagnosed him with anxiety, DOS. Since that time he has received regular mental health treatment at VA facilities. He was also hospitalized twice for psychiatric problems, first in June 2007 after a suicide attempt, and again in January 2008. The Veteran underwent one VA mental health examination in January 2008, which resulted in a negative nexus opinion. In its March 2011 remand decision, the Board found that this examination and the provided opinion were inadequate to properly evaluate the Veteran's claim because the examiner failed to provide a clear and well reasoned opinion addressing the Veteran's claim as secondary to his service-connected orthopedic conditions. Additionally, the opinion was based on an incomplete record, as there were outstanding treatment records. Accordingly, the Board remanded the claim for an addendum opinion and outstanding records. Outstanding treatment records were obtained, and in July 2011 a VA psychologist provided an addendum opinion based on record review. He stated that "a mental disorder is most likely caused by or a result of the fear of an in-service illness." In May 2012 the same examiner clarified: "depressive disorder is at least as likely as not caused by or a result of a service-connected physical disability." In a November 2012 addendum the same psychologist stated that it was not possible to attribute the mental disorder to a specific service-connected physical disability without resorting to speculation. The Veteran is service-connected for right knee and right ankle conditions. The Board finds that it is immaterial whether his mental disorder is related to the right ankle condition or the right knee condition; the relevant finding is that the VA examiner opined that the Veteran's mental disorder is at least as likely as not related to a service-connected disability. In summary, the January 2008 negative nexus opinion was found to be inadequate and therefore has no probative weight. The May 2012 positive addendum opinion is supported by the January 2008 VA treatment record and therefore probative. The Board concludes that the evidence supports service connection. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen. A current disability has been shown to exist, and the probative medical evidence of record shows that the Veteran's acquired psychiatric disorder, diagnosed as anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS; was proximately caused by his service-connected physical disabilities. Therefore, resolving reasonable doubt in favor of the Veteran, service connection for such disability on a secondary basis is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for anxiety disorder, NOS; mood disorder, NOS; depressive disorder; and adjustment disorder, NOS are granted. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs