Citation Nr: 1324744 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-22 591 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 2005 and May 2006. She had additional service in the United States Army Reserve from January 2004 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that, in part denied service connection for depression. The Board notes that while the Veteran was denied service connection for depression in the July 2008 rating decision, the record indicates that the Veteran has been diagnosed with a number of psychiatric disorders by various health care providers, including possible posttraumatic stress disorder (PTSD). The Board is aware of the holding of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), in which the Court pointed out that the claimant cannot be held to a "hypothesized diagnosis - one he is incompetent to render" when determining what his actual claim may be, and noted that the Board should have considered alternative current conditions within the scope of the filed claim. In Clemons, the Veteran specifically requested service connection for PTSD, but the medical record included diagnoses of an anxiety disorder and a schizoid disorder, and the Board denied the claim for service connection for PTSD upon the absence of a current diagnosis of PTSD, but did not address the other diagnoses. The present case differs from Clemons, however, as the appealed July 2008 rating decision denied a claim for service connection for depression and a claim for PTSD. To date, the Veteran has only perfected an appeal for the issue of entitlement to service connection for depression. While the Veteran failed to submit a timely notice of disagreement for the issue of entitlement to service connection for PTSD after the July 2008 rating decision, in August 2010 she filed a motion to reopen this issue which was subsequently denied in a January 2011 rating decision. The Veteran did not appeal this decision. Accordingly, as the RO has already considered the question of service connection for PTSD, and the Veteran did not yet appeal the most recent adverse decision, the Board finds no basis for additional development and adjudication pursuant to Clemons. FINDING OF FACT An acquired psychiatric disorder to include depression has not been shown by competent evidence to be related to a disease or injury of service origin. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression, are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided notice to the Veteran in an October 2007 letter, prior to the date of the issuance of the appealed July 2008 rating decision. The October 2007 letter explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also 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 v. Nicholson, 19 Vet. App. 473 (2006). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA treatment records and the reports of October 2008 and December 2010 VA examinations. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. As such, the Board finds that the October 2008 and December 2010 VA examination reports are sufficient upon which to base a decision with regard to this claim. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran and by the Veteran's representative on her behalf. The Board finds that no additional RO action to further develop the record on the claim is warranted. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Law and Regulations 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as psychosis is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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 professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (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"). If psychosis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background In essence, the Veteran contends that her current psychiatric disability is a result of her service while stationed in Iraq. An April 2006 Post-Deployment Health Assessment noted that the Veteran reported that her health worsened during her deployment in Iraq. She endorsed interest in help for stress, emotional, alcohol or family problems. She endorsed feeling down, depressed or hopeless. In a July 2006 VA treatment report, the Veteran noted that she had "felt down" for some time. She had returned from Iraq that month and had experienced a lack of interest in things. She was sad at times and cried. She reported having a lot of pressure at work in Iraq. The diagnosis was depression, rule out bipolar disorder. In August 2006, the Veteran underwent a VA psychiatric consultation after being referred due to her depressive symptoms such as sadness, crying spells, loss of motivation and interest, poor concentration, increased appetite and short term memory problems. She stated that her symptoms started a few months ago but had worsened since she returned from active duty in Iraq 3 months ago. She identified her stressors as difficulties with her 21 year old son and having to adjust to a daily routine a year after being on active duty in Iraq. She denied a history of psychiatric treatment but reported a history of depressive symptoms 6 years ago while she was in basic training but she did not ask for help or treatment. The treating physician determined that the Veteran met the diagnostic criteria for major depressive disorder. An October 2006 VA treatment note reported that the Veteran's anxiety and irritability had increased in the past few weeks. The diagnosis was major depressive disorder. A February 2007 VA treatment report noted that the Veteran had major depressive disorder that was in partial remission. A December 2007 VA psychology intake treatment note indicated that the Veteran reported that after spending 1 1/2 years in Iraq she was now a "different person". Since her return she experienced sadness, loneliness and fear. She noted that she was always thinking about her tour in Iraq as she was frequently awakened by bombing noises. The diagnosis was "possibly PTSD and depression". The Veteran underwent a VA examination in October 2008. The examiner noted that the Veteran reported that she had been under rocket fire and mortar attacks at Camp Fallujah but that her claims file record included information related to her not being in an area where individuals who she had referenced had been when attacked. On her post-deployment assessment in April 2006 she did not endorse any of the PTSD screening questions but did indicate feeling down, depressed or hopeless. No other mental concerns were endorsed. In July 2006, about a month after she had been home from Iraq, she had reported that she had been down for quite some time. The Veteran indicated that since she had come back from Iraq, she had seen her physician who told her that she might be bipolar. She had been seeing a therapist or psychiatrist consistently since then. She denied any traumatic stressors prior to entering the military. She reported that she found basic training depressing because she struggled to meet the training demands and compete with much younger people. She easily made friends in the military and had no disciplinary problems. She reported missing her friends in the military and being in the military. She noted that while she was in Iraq, her son was not going to college and her family had lied to her about this. When she returned from Iraq, she was crying and fighting with her son every week. She had not been able to work things out with her son. She felt that she was not doing anything important currently and that when she went on drills for her Reserve duty she was very happy. She also reported that she had been getting upset and harming herself. She also had a significant increase in her drinking as she typically drank an entire bottle of wine by herself at home. She was drinking on the weekends and on several days during the week. The examiner indicated that the Veteran's clinical presentation was consistent with alcohol abuse and adjustment disorder. She did not report symptoms consistent with PTSD but did report some mild symptoms of anxiety when in crowds. She had difficulty coping with stress and conflicts in her relationships. Her social functioning appeared to relate to her personality factors and her relationships with her fiancé and adult son. She appeared to have had difficulty adjusting to the loss of the built in support system that was part of her military experiences. She missed her military friends but did not want to be redeployed again. The examiner indicated that these factors related to her military service were not prominent or more than would be expected of an adjustment back to civilian life. Therefore, the examiner opined that the most appropriate diagnosis was that of an adjustment disorder with her stressors being several factors including her move from Puerto Rico, estrangement from her son, and disillusionment regarding her fiancé. It appeared less likely than not that her military service caused her adjustment disorder or alcohol abuse but she was evidencing difficulty adjusting prior to her increased alcohol intake. The Veteran underwent another VA examination in December 2010. The examiner noted that information was gathered by verbal interview and extensive medical record review. The Veteran reported that she was deployed to Fallujah, Iraq from May 2005 until May 2006. Her position was as a shower-laundry-textile specialist. She reported that she was also activated in 2008 but had a break down while readying for her deployment and was sent back home on a permanent profile due to her depression. She reported that her first ever encounter with mental health services occurred the day after her release from active duty. She reported that part of her sadness at the time was due to her missing her friends who were in Iraq. She also experienced hurt and mistrust toward her mother and her son for what she said was her lies about son's failure to participate in schooling and misuse of the money she had been sending back home while she was away. She also reported an incident on her first day in Iraq where sirens went off indicating incoming fire. She also would receive blankets that had been bloodied as a result of her position in the laundry department. She reported that it had been hard for her to adjust socially since she had been out of the military. The Veteran reported that the onset of her depressive symptoms were when she began having physical illness and medical problems in Iraq. Her problems were also worsened by her worrying of what was happening back at home as her son was not going to college despite her allocating money for him to attend school. The examiner noted that after a review of the records from the San Juan VA Medical Center and social work service records that nearly all of her behavioral health appointments documented her difficulty coping with psychosocial stressors. Her presented symptoms and described functioning did not meet the criteria for a diagnosis of PTSD. Her description of alcohol use frequency/behavior did not support a substance abuse disorder at this time. Overall, her presentation appeared most consistent with a diagnosis of adjustment disorder. The examiner concluded that the Veteran's symptom presentation was consistent with adjustment disorder with mixed anxiety and depressed mood. It appeared less likely that this condition was attributable to her military deployment experiences. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding that her current acquired psychiatric disability is related to military service. As there is a current diagnosis of depression, adjustment disorder with mixed anxiety and depressed mood, the first element of service connection is satisfied. However, the evidence must establish not only the existence of a disability, but also an etiological connection between military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). The Board acknowledges that the Veteran's service treatment records demonstrate that an April 2006 Post-Deployment Health Assessment noted that the Veteran endorsed interest in help for stress, emotional, alcohol or family problems and endorsed feeling down, depressed or hopeless. The service treatment records however, are negative for any clinical findings or diagnoses of depression or any psychiatric disability during service. The Board also notes that the first documented medical evidence of a psychiatric disorder is in the July 2006 VA treatment record which provided a diagnosis of depression, rule out bipolar disorder. Notably, in a June 2013 correspondence, the Veteran's representative argues that as this diagnosis is within one year of active service, service connection should be granted on a presumptive basis. However, depression and mood disorders are not classified as psychoses. See 38 C.F.R. § 3.384. As such, service connection for the Veteran's claim may not be granted on a presumptive basis. Moreover, the Board notes that the October 2008 and December 2010 VA examiners specifically determined that while the first documented complaints occurred in April 2006, they were not related to her military service. Regarding service connection on a direct basis, the Board notes that there is no competent evidence or opinion even suggesting that there exists a medical nexus between a current acquired psychiatric disability and the Veteran's military service. In fact, the only medical opinions addressing the etiology of the acquired psychiatric disability weigh against the claim. As indicated above, the October 2008 and December 2010 VA examiners opined that it was less likely than not that the Veteran's current psychiatric disorder was related to her service. None of the competent medical evidence currently of record refutes this conclusion, and neither the Veteran nor her representative have presented or identified any such existing medical evidence or opinion. Given that the most probative opinion is against a finding of a relationship between an acquired psychiatric disability and service, the Board finds that service connection is not warranted. In reaching this conclusion, the Board has again considered the lay evidence offered by the Veteran and her representative to VA. This includes her and her representative's statements in which they asserted their belief that her claimed acquired psychiatric disability is related to her service. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). However, lay persons are generally not competent to opine as to medical etiology or render medical opinions. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example a form of cancer."). That is, the Veteran is competent to report that she has psychiatric symptoms; however, she is not competent to state that her acquired psychiatric disability is the result of her service. Accordingly, the Board has placed greater probative weight on the conclusions reached by the October 2008 and December 2010 VA examiners, who, as medical professionals, are competent to render opinions regarding medical matters. As the preponderance of the evidence is against the Veteran's claim, service connection must be denied. 38 C.F.R. §§ 3.1(m) & (n), 3.102, 3.301. ORDER Entitlement to service connection for an acquired psychiatric disorder to include depression is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs