Citation Nr: 1320867 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 04-41 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for back disability. 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active military service from May 1969 to October 1986. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for depression and declined to reopen the previously denied claim for a back disability. In September 2006, the Board denied the Veteran's claim to reopen the previously denied claim for a back disability. The Veteran filed a timely appeal of the decision to the United States Court of Appeals for Veterans Claims, and pursuant to a Joint Motion for Remand, an April 2008 Order vacated the Board's decision and remanded the matter for compliance with the instructions in the Joint Motion for Remand. The issue of entitlement to service connection for a psychiatric disorder other than PTSD is before the Board following a Board Remand in September 2006 and again in March 2010. FINDINGS OF FACT 1. The Veteran's depression is related to his service. 2. A back disability is not shown to be causally or etiologically related to any disease, injury, or incident during active duty. CONCLUSIONS OF LAW 1. Depression was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. A back disability was not incurred in or aggravated by the Veteran's active duty. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a September 2003 letter, sent prior to the initial February 2004 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, an October 2006 letter advised the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. After that letter was issued, the Veteran's claims were readjudicated in the supplemental statements of the case. Therefore, any defect with respect to the timing of the VCAA notice has been cured. Relevant to the duty to assist, the Veteran's service treatment and personnel records, VA treatment records, and private records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed his Virtual VA claims file. Additionally, he was afforded VA examinations in November 2003 and March 2011 concerning the etiology of his back disability. The Board finds that the opinions proffered by the VA examiners are sufficient to decide the Veteran's claim. The Board notes that the Veteran's claims were remanded in March 2010 in order to obtain any additional service treatment records and to afford him with VA examinations with opinions. Service treatment records have been associated with the file. Adequate VA examinations were obtained. Therefore, as the remand directives have been substantially complied with, as discussed in the preceding paragraphs, no further action is necessary in this regard. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) . Service connection may also 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis and arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For injuries alleged to have been incurred in combat, 38 U.S.C.A. § 1154(b) (West 2002) provides a relaxed evidentiary standard of proof to determine service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). When an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). Psychiatric Disorder The Veteran was granted service connection for PTSD in a May 2012 rating decision. However, in March 2010, in addition to remanding the then outstanding claim for service connection for PTSD, the Board also remanded the claim for service connection for an acquired psychiatric disorder, other than PTSD. The Board did so because, previously, the RO had adjudicated the Veteran's claims for service connection for depression and PTSD separately. Throughout the appeal period, the Veteran has claimed that both his PTSD and his depression are related to his service and has requested that both disorders be granted service connection. Because the claim for service connection for depression is still outstanding, the Board will address it by this decision. Because the claim is favorable to the Veteran, the Board finds that the absence of a supplemental statement of the case does not prejudice the Veteran. The Veteran's reported stressor related to service revolves around a rocket attack while stationed in Vietnam. Following the attack, he felt fearful for his life and also felt like a coward for not being able to handle the situation. Service treatment records reflect that in February 1988, the Veteran was diagnosed with mild atypical organic brain syndrome. He was seen following alcohol rehabilitation and observations that he was having trouble carrying out orders. Mental status examination had shown mild memory and cognitive dysfunction. His organic brain syndrome was thought to be secondary to alcohol use. He was also diagnosed with a mixed personality disorder with impulsive, dependent, and passive-aggressive features, alcohol abuse, in remission, and adjustment disorder with depressed mood, resolved. Post-service treatment records reflect a diagnosis of depression as early as April 1998. At the time of that VA examination, his depression was assessed as secondary to his PTSD. VA treatment records reflect that in July 2000, he was seen for ongoing major depressive disorder. On March 2008 VA examination, the Veteran reported having crying spells and that his energy was somewhat poor. He had some suicidal thoughts. He was often scared to go places and had "nervous-type things" happen. Mental status examination resulted in a diagnosis of alcohol dependence and major depressive disorder. The examiner felt that although the Veteran was being treated for depression currently, there was no indication that he was diagnosed with depression or treated for depressive symptoms in service. It was possible that he was depressed while in service, but that suggestion was not substantiated by the records. On March 2011 VA examination, the Veteran reported having significant problems with depression. He had sadness and loss of interest in activities. He found himself crying on occasion for no apparent reason. The depression has affected his ability to sleep, his concentration, and his energy level. The Veteran's symptoms, for both his depression and his PTSD, included avoidant behavior, isolative tendencies, he was hypervigilent, irritable, and he had nightmares of the stressful event. He had withdrawn from social interaction and was very guarded. Based upon a review of the claims file and psychiatric examination, the examiner diagnosed the Veteran with major depressive disorder, recurrent, severe. The examiner explained that his PTSD and depression had several areas of overlap and could not be completely disentangled from one another. There was overlap with sleep difficulties, concentration problems, and loss of interest in activities. The examiner stated that most of the symptoms described by the Veteran could be directly attributed to his combat trauma, including his sleep impairment and concentration problems. The examiner also concluded that the Veteran's organic brain syndrome by history was a condition that overlapped with PTSD. However, the Board notes that there is no current diagnosis of organic brain syndrome during the appeal period. In this case, the Board finds that the weight of the credible evidence establishes that the Veteran's depression was caused or aggravated by his service, specifically, his reported stressor in service. The March 2011 VA examiner, after reviewing the claims file and assessing the Veteran's mental disabilities during the appeal period, concluded that the Veteran's symptoms, including his depressive symptoms, were caused or aggravated by his combat experiences in service. While the examiner determined that the depressive symptoms and PTSD symptoms overlapped in part, they did not totally overlap. This assessment comports with the record, as on 1998 VA examination, the Veteran was diagnosed with depression separately from his PTSD, though the two were interrelated. Moreover, his symptoms of depression at that time, too, were reported to be related to service experiences. While the March 2008 VA examiner did not believe his current depression had begun in service, such opinion did not take into account the Veteran's reported service stressor. Rather, that opinion was based solely on the lack of depressive symptoms in service, which, on its own, is a less probative opinion because it does not take into account the Veteran's lay contentions or demonstrated continuity of symptoms since service. Accordingly, the Board finds that the Veteran's depression has been shown to have been caused or aggravated by his combat service and thus, service connection for depression is warranted. Back Disability The Veteran contends that his current back disability was caused or aggravated by his service. Service treatment records reflect that in September 1979, the Veteran reported soreness in his chest and back due to coughing. The assessment was respiratory infection, chest and back pain secondary to coughing. In March 1980, the Veteran had central back pain for two days. He had a cough and a bilateral ear ache. The assessment was viral syndrome, otitis media. There was no diagnosis made related to the back. In March 1980, the Veteran reported that he was feeling better except for his back, again, however, there was no diagnosis of the back. In November 1980, the Veteran was seen after being hit by a bicycle. He reported pain in the right hip and the back. There was no back examination. The right hip had ecchymosis. The diagnosis was a soft tissue injury. In April 1981, the Veteran reported having a cold with associated muscle pain in the back and chest. There was no back examination. The diagnosis was pharyngitis. On August 1986 physical examination, he checked yes to recurrent back pain. Post-service treatment records reflect that on June 1991 Social and Industrial Survey, the Veteran reported having an ache in the middle of his back. A November 1995 x-ray showed no definite evidence of fracture, dislocation or bone destruction of the lumbar spine. In December 1997, the Veteran was noted to have a history of low back pain. On November 2003 VA examination, the Veteran reported that he injured his back in service and received treatment in service. He stated that since the in-service injury, he had experienced continuous back symptoms. After physically examining the Veteran and reviewing the claims file, the examiner concluded that it was not at least as likely as not that the Veteran's low back disability had worsened. The examiner explained that x-rays showed intervertebral spaces that were normal, with no evidence of fracture, dislocation, or bone destruction. VA treatment records reflect that on June 2006 x-ray, there were degenerative changes of the lumbar spine. In July 2007, the Veteran reported having 30 years of back pain in the thoracic area. The assessment was back pain. On March 2011 VA examination, the Veteran's service treatment records were reviewed in detail. The Veteran reported that he did not know the date of onset of his back pain. He then reported that while working on a vehicle in service, he slid down and hurt his back. He was unable to give a logical or coherent history and was noted to be intoxicated. He reported pain from his shoulder to his L4/5-S1 area. Physical examination and review of the record resulted in a diagnosis of degenerative osteoarthritis of the dorsal spine. The examiner concluded that it was less likely than not that the Veteran's current back disability was caused or aggravated by his service. The examiner explained that there was no significant findings of injury, illness, or trauma to the back while in service. The notes reviewed were understandable as secondary to persistent, forceful coughing that could make the muscles of the chest and back sore when used. It was noted again that the Veteran was not helpful in conducting the examination. First, the Board finds that presumptive service connection is not warranted in this case, as there is no indication that the Veteran was diagnosed with arthritis within one year following separation from service. 38 C.F.R. § 3.307, 3.309. Moreover, the Veteran has not contended that his back disability was incurred during combat, thus that presumption does not apply. Significantly, there is no indication in the service treatment records, and no contentions or other evidence to suggest, that the Veteran injured his back while in combat. Furthermore, the Board finds that the preponderance of the evidence is against a finding that the Veteran's current back disability had its onset in or is otherwise related to his service. For one, the March 2011 VA examiner thoroughly reviewed the claims file and service treatment records and provided a clear opinion against the claim, with well-explained rationale. The examiner reviewed the incidents of reported back pain in service, however, all but one incident was related to an upper respiratory infection, rather than any back injury or condition. Although the Veteran reported back pain when hit by a bicycle, there was no indication that that incident or any other incident in service resulted in a chronic back disability. Moreover, although the Veteran reported back pain in service, there is no documentation of a diagnosed back disability. Therefore, in this case, there is no medical nexus in support of the Veteran's claim. Nor is there evidence of continuity of symptoms since service, as the first indication of a diagnosed back disability is not until June 2006, when an x-ray showed evidence of his current back disability, arthritis of the lumbar spine. Accordingly, because there is no indication of a chronic disability in service, continuous symptoms since service, or medical nexus relating the current disability to service, service connection must be denied. The Board notes that the Veteran has contended on his own behalf that his current back disability is related to his military service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's back disability and any instance of his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Additionally, in a single-judge Memorandum Decision issued by the Court, it was noted that "in the absence of any medical evidence, the record must provide some evidence beyond an appellant's own conclusory statements regarding causation to establish that the appellant suffered from an event, injury or disease in service." Richardson v. Shinseki, No. 08-0357, slip. op. at 4 (Vet. App. May 10, 2010). While the Board recognizes that such single judge decisions carry no precedential weight, they may be relied upon for any persuasiveness or reasoning they contain. See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Here, while the Veteran is competent to describe his in-service back pain, and his current manifestations, the Board accords his statements regarding the etiology of such disorder little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the relationship between his in-service symptoms of back pain and his current back disability. The competent, probative opinion in this case however took into consideration all the relevant facts in providing the opinions reached, to include pathology of his current back disability. Therefore, the Board accords greater probative weight to the examiner's opinion finding against his claim. Additionally, to the extent that the Veteran has contended that his back disability began in service after working on a vehicle, the Board finds such statement to lack credibility and, therefore, accords no probative weight to such contention. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds the Veteran's statements regarding continuity of symptomatology to be not credible as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) . In this regard, the Board notes that the medical evidence does not show any back injury in service or treatment for a back injury in service, other than after the bicycle accident that did not injure the back. Moreover, there is no indication of a back disability until 2006, and a 1995 x-ray was negative for any back disability. Therefore, the Veteran's lay assertions of continuity of symptomatology are less credible and persuasive in light of the other evidence of record, and are, in fact, outweighed by this evidence. Consequently, based on the foregoing evidence, the Board finds that the Veteran's statements regarding continuity of symptomatology to be less credible than the March 2011 VA examination. 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 for a back disability. 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. ORDER Service connection for depression is granted. Service connection for a back disability is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs