Citation Nr: 1317020 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 10-08 976 ) 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 disorder, to include depression, as secondary to service-connected bilateral knee disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and K.V. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from March 1959 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in pertinent part, denied the Veteran's claim for service connection for depression as secondary to his service-connected knee disabilities. A review of the Virtual VA paperless claims processing system reveals VA treatment records dated through March 2013; such records were considered by the agency of original jurisdiction (AOJ) in the March 2013 supplemental statement of the case (SSOC). The Veteran testified before the undersigned Veterans Law Judge at an August 2011 RO (Travel Board) hearing. A hearing transcript has been associated with the claims file. The Board remanded the instant claim in December 2011 and in February 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's current acquired psychiatric disorder was proximately due to, the result of, or chronically aggravated by, his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected bilateral knee disabilities have not been met. 38 U.S.C.A. §§ 1112, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in September 2007 fully satisfied the duty to notify provisions as to service connection on a direct and secondary basis. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claim. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. The Board also concludes VA's duty to assist has been satisfied. The evidence of record includes the VA treatment records, various private treatment records and the VA examination reports. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and his service-connected bilateral knee disabilities. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that such a VA examination and accompanying opinions are adequate to decide the issue, as they are predicated on an interview with the Veteran; a review of the record, to include his service treatment records; and a physical examination with diagnostic testing. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. 38 C.F.R. § 3.159(c)(4). 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. Additionally, the Board finds there has been substantial compliance with its December 2011 and February 2013 remand directives. The Board notes that the Court has recently noted 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 the Appeals Management Center (AMC) obtained the Veteran's updated VA treatment records and scheduled him for medical examination, which he attended. A February 2013 letter asked the Veteran to identify any private treatment providers and complete authorization forms to allow VA to obtain such records; the Veteran did not respond to this letter. A SSOC was issued in March 2013. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim. Additionally, in August 2011, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the August 2011 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal. Also, information was solicited regarding the etiology of the Veteran's acquired psychiatric disorder, to include the Veteran's allegations that it was related to his service-connected knee disabilities. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. Id. at 497. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. II. Acquired Psychiatric Disorder Claim Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). In a recent decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) determined that such an alternative method can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.") Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Certain chronic disabilities such as psychosis are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service connected condition. See 38 C.F.R. § 3.310. Service connection is possible when a service connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3. 310 to incorporate the Court's decision in Allen except that VA will not concede aggravation unless there is medical evidence showing the baseline level of the disability before its aggravation by the service connected disability. 38 C.F.R. § 3. 310(b). In this case, the Veteran applied for service connection prior to the effective date of the amendment. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that his depression is the result of his service-connected knee disabilities; he has not alleged direct service connection. He does not assert, nor does the evidence otherwise show, that his acquired psychiatric disorder is directly related to service, or that it manifested within one year after his separation from service. In this regard, the Board notes that the Veteran's service treatment records are silent as to complaints, treatment, or diagnoses relating to any acquired psychiatric disorder. In addition, he has alleged no specific in-service incident related to any acquired psychiatric disorder, nor has he indicated any such continuity of symptomatology since service, but rather testified during his August 2011 hearing that his depression began in 2000. Moreover, depression was not demonstrated in the clinical evidence until 2008, more than 40 years after his separation from service, and accordingly, presumptive service connection is not warranted under the provisions of 38 C.F.R. §§ 3.307, 3.309. For these reasons, the Board will limit its analysis below to a discussion of whether service connection for an acquired psychiatric disorder is warranted on a secondary basis. At the outset, the Board notes that the evidence establishes a current acquired psychiatric disorder. A September 2008 private psychiatric evaluation contained a diagnosis of major depressive disorder. A March 2012 VA Disability Benefits Questionnaire (DBQ) report reflected a finding of depressive disorder not otherwise specified (NOS). Thus, the current disability requirement is met here. However, in order for the Veteran to establish service connection on a secondary basis, the evidence must also show that his current psychiatric disability is proximately due to or the result of a service-connected condition (namely, the bilateral knee disabilities). Concerning this contention, there is simply no competent medical evidence which indicate that the Veteran's current acquired psychiatric disorder is proximately due to, the result of, or chronically aggravated by his service-connected bilateral knee disabilities. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). Following a VA March 2012 examination, a DBQ report (and a March 2013 addendum opinion) was issued and provided a medical opinion against all aspects of the Veteran's claim for secondary service connection. Indeed, the VA examiner opined that it was less likely than not (less than a 50 percent probability) that the Veteran's depressive disorder was proximately due to or the result of his service-connected condition. The examiner reasoned in her March 2012 opinion that there was insufficient evidence to support such a link as there was a 20-year gap between the onset of his last acute knee problem and his psychiatric complaints, that he had reported a multitude of stressors in his life and that most of his mental health treatment was related to everyday stressors. In her March 2013 addendum opinion, the examiner further opined that she was unable to determine the baseline level of severity of the claimed acquired psychiatric disorder based upon medical evidence available prior to aggravation and that it was not at least as likely as not that such a condition was aggravated beyond its natural progression by the Veteran' service-connected condition. The examiner noted that while such a baseline was not possible to estimate, the available evidence to date indicates that the Veteran's mental health symptoms were either stable, absent or minimal and apparently not found to be problematic based on the evidence that he had declined treatment and not sought additional mental health service since June 2012. The examiner further reasoned that the Veteran had not adhered to his medication refill schedule, which would allow for a continuation of medication on a basis consistent with that required for medical effectiveness, and that individuals who experienced clinically significant and/or worsening symptoms tended to be motivated to attend to the treatment recommendations and to seek follow-up appointments. Overall, the Board accords great probative weight to the VA examiner's opinion as it is based on an accurate factual premise and offers clear conclusions with supporting data and a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); 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"). Moreover, there are no medical opinions of record to the contrary. While the Board finds the Veteran competent to report that he has experienced depression and other psychiatric symptoms, he is not competent to comment on medical matters such as etiology. See Espiritu, supra. Further, the Veteran's etiological theory has not been supported by a medical professional and only a negative medical opinion has been associated with the Veteran's claims file. These are inherently complex medical determinations that require specialized medical expertise. As such, the Veteran's lay statements are afforded limited probative value and the Veteran's claim fails on this basis. See Shedden, supra. Although the Veteran has established that he currently suffers from an acquired psychiatric disorder, the evidence of record does not establish that this condition is the result of his service-connected knee disabilities. In conclusion, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. The benefit sought on appeal is accordingly denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include depression, as secondary to service-connected bilateral knee disabilities, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs