Citation Nr: 1324836 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 06-33 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depression, anxiety, cognitive impairment, and mood disorder, as secondary to service-connected pterygium. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active duty military service from September 1966 to September 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's claims for service connection for an acquired psychiatric disorder. The Veteran then perfected a timely appeal of the matter. In a January 2012 decision, the Board denied the claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran appealed that determination to the Court. In September 2012, the Court granted a joint motion to remand (JMR) agreed upon by the Veteran and the secretary of VA. The claim was remanded back to the Board for action consistent with the terms of the JMR. In February 2013, the Board remanded the claim in order to obtain a new VA medical opinion and/or clarification of the previous August 2011 VA medical opinion. The requested medical opinion was obtained in April 2013. The Board notes that the Veteran's current acquired psychiatric disorder has been described differently by different treating physicians; for example the Veteran has been variously diagnosed with: dementia (see private treatment record dated in November 1998 from Floyd Medical Center); a panic disorder (see the private treatment record dated in December 1998 by Dr. H.); dementia due to a general medical condition (see the May 2000 VA medical treatment record); depression, cognitive impairment, and an anxiety disorder (see the private treatment record dated in February 2005 from Dr. V.); and major recurrent depression (see the VA medical examination dated in July 2008); among others. The Board considers the Veteran's claim for service connection for an acquired psychiatric disorder as encompassing all psychiatric disorders evident in the record, pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). However, in reviewing the Veteran's claim for an acquired psychiatric disorder, the Board excludes the previously denied claim for posttraumatic stress disorder (PTSD), as that claim has been provided a prior final adjudication without appeal, and there is no evidence of record that the Veteran has attempted explicitly or implicitly to reopen that decision. See Ephraim v. Brown, 82 F.3d 399, 401-402 (1996) (holding that a claim based on the diagnosis of a new mental disorder states a new claim); see also Boggs v. Peake, 520 F.3d 1330, 1335 (2008). FINDING OF FACT There is medical and lay evidence of record that shows that major depression, anxiety, cognitive impairment, and mood disorder noted during the course of the appeal were caused by the Veteran's service-connected pterygium. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, service connection for major depression, anxiety, cognitive impairment, and mood disorder as secondary to the service-connected pterygium, is granted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310(a), 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As this decision will fully grant the Veteran's claim for service connection for a psychiatric disorder, there is no need to discuss the Board's duty to notify and assist the Veteran regarding that particular issue. Service Connection The Veteran specifically contends that vision loss associated with his service-connected pterygium disorder caused or aggravated an acquired psychiatric disorder. Notably, the evidence does not show, nor does the Veteran contend that an acquired psychiatric disorder (other than PTSD, which has been finally denied and adjudicated as discussed above) is directly related to service. See October 2004 Claim for Secondary Service Connection. Therefore, the analysis in this case will focus on whether service connection is warranted on a secondary basis only. The Veteran is not prejudiced by this limited discussion as the claim for service connection is being granted herein. 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; 38 C.F.R. § 3.303(a). 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). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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 v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Evidence of a temporary flare-up, without more, does not satisfy the level of proof required to establish an increase in disability. The Board notes that the regulation addressing service connection for disabilities on a secondary basis, 38 C.F.R. § 3.310, was amended in September 2006. See 71 Fed. Reg. 52,744 -52,747 (Sept. 7, 2006), effective October 10, 2006. The change was made to conform VA regulations to decisions from the Court, specifically Allen v. Brown, 7 Vet. App. 439 (1995). The prior regulation addressed whether a service-connected disability was the cause of a secondary disability. The Allen decision provides for consideration of whether a service-connected disability aggravates a non-service-connected disability. The change in regulations includes the holding from Allen in a new section, 38 C.F.R. § 3.310(b). Here, as the Veteran's claim was filed prior to October 2006, the amended regulation does not apply to this case. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. 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 1313, 1316 (Fed. Cir. 2009); 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, supra. 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 (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). 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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Historically, the Board notes that service treatment records contain no complaints, findings, or treatment for psychological problems. Following service, in December 1996, service connection for bilateral pterygium was granted. A September 1996 VA eye examination revealed that the Veteran had undergone multiple excision of pterygium (with residual scarring), that the condition could affect his visual acuity, and that it needed to be followed closely. In January 1997, the Veteran submitted a statement indicating that he was a medical technologist which required working with exact accuracy with a microscope. He stated that he experienced decreased visual acuity due to scarring on his eyes from previous pterygium surgeries, and that he could no longer perform his work with the type of accuracy required for that type of employment. The first documented treatment for psychological problems was in November 1998, at which time a private treatment report indicated a diagnosis of dementia due to multiple infarcts (occurring in July 1998), and organic mood disorder. The report referenced some previous psychiatric treatment from Dr. P. in 1997. A May 1999 private eye examination report noted that the pterygium was currently inactive, but that there was an associated lesion approaching the visual axis in the right eye. A December 2002 VA eye examination noted that the Veteran had undergone multiple surgeries for pterygium, with recurrent irritations in both eyes. The diagnostic impression was status post surgery of pterygium (left eye), recurrence of pterygium in the right eye, cataracts, astigmatism, and presbyopia. The physician noted that the Veteran did have recurrence of the pterygium in the right eye which was "significant" and would cause greater loss of vision if allowed to progress. An August 2004 private treatment record from Dr. L. indicated that the Veteran reported having recurrent and severe visual problems due to pterygium; as a result of the vision loss, the Veteran also reported that he was unable to perform certain work activities and other activities of daily living. Dr. L. stated that the Veteran had pterygiums removed on multiple occasions in the past, and that the pterygium had recently recurred again, and progressed adjacent to the visual axis in the right eye. He was also noted as having cataracts, bilaterally. Dr. L. stated that pterygium surgery on the right eye was likely necessary (as well as cataract surgery) to restore his vision. In September 2004, Dr. V. indicated that the Veteran had been under his care since 2003 and was being treated for major depression, anxiety, and cognitive impairment. Additionally private treatment records from Dr. V., dated from 2003 to 2004, reflect multiple complaints of decreased vision as a result of pterygium, as well as diagnoses of mood disorder, major depression, anxiety disorder, and cognitive impairment. For example, in April 2003, the Veteran reported that he could no longer read due to pterygium, and that he was very frustrated over this fact. Dr. A diagnosed mood disorder secondary to "medical conditions." In September 2004, the Veteran reported that he was not sleeping, that he was unable to read, watch TV, or write, and that he was very frustrated secondary to his visual loss due to pterygium. Dr. V. diagnosed major depression, anxiety disorder, and mood disorder secondary to decreased vision. In February 2005, Dr. V. again stated that he had been treating the Veteran for depression, a cognitive disorder, and anxiety disorder since 2003, and that his prognosis was poor "due to concurrent medical conditions." In an April 2005 statement, Dr. V. again indicated that he had been treating the Veteran for depression, cognitive disorder, and anxiety disorder since 2003 and that he was "increasingly depressed due to his loss of vision secondary to bilateral pterygium." In an August 2005 statement, Dr. V. opined that the Veteran had "service-connected disability because of his eyesight (secondary to pterygium)." In a March 2006 statement, Dr. A. stated that the Veteran had been under his care since 1993, at which time he was suffering from failing vision (pterygium). Dr. A. noted that the Veteran underwent four eye surgeries since that time without any improvement. He opined that "the stress of having diminished functional visual acuity has led to psychiatric treatment and unemployability. His failing vision and secondary reactive depression makes him disabled from gainful employment." Treatment records dated from Dr. V., dated from February 2006 to August 2007, reflect ongoing complaints of decreased vision and multiple diagnoses of depression, anxiety, and mood disorder due to decreasing vision and pterygium. The Veteran underwent a VA examination in August 2007, at which time the examiner stated that the original service connected condition of pterygium occurred in-service, with the subsequent conditions of major depression, anxiety, cognitive disorder, and mood disorder taking place when he was no longer able to work. The Veteran underwent a VA eye examination in July 2008, at which time he was diagnosed with status post multiple surgeries in both eyes for pterygia, cataract, and hyperopia, astigmatism, and presbyopia. The examiner indicated that the pterygia had not recurred at the present time and had not contributed to the reduction in his visual acuity. The Veteran underwent a VA psychological examination in September 2010, at which time he was diagnosed with dementia and major depression. The examiner stated that he was unable to link his pterygia to depression without resorting to mere speculation. The examiner cited to a host of other medical, economic and psychosocial problems present in the Veteran's life and noted that these would also cause depression. In August 2011, the claims file was reviewed by another VA examiner who opined that the Veteran's psychiatric conditions (including depression, anxiety, cognitive impairment, and mood disorder) were neither caused nor aggravated by his service-connected pterygium. In so finding, the examiner noted that she was unable to offer an opinion regarding the soundness of the aforementioned diagnoses without evaluating the Veteran directly. Nonetheless, the examiner stated that the Veteran's medical records "document a host of medical and situational stressors that are clearly affecting [the Veteran's] medical condition - over and above any sequelae of the bilateral pterygia (which as of 2008 was not even present in the Veteran's eyes)." The examiner also cited to the July 2008 VA report which indicated that the pterygium had a minimal impact on the Veteran's vision. Therefore, she concluded that "were [the Veteran] to feel depressed due to vision loss, pterygia appears to be a non-factor in such." Pursuant to the September 2012 JMR, the Board requested an addendum VA opinion for clarification of the August 2011 opinion. Specifically, the JMR determined that the August 2011 examiner did not properly address whether the Veteran's eye condition could have caused or aggravated his depression while the pterygia was active. The requested addendum opinion was received in April 2013. The same examiner who conducted the April 2011 VA examination stated that the "preponderance of the medical and psychiatric evidence" suggested that the Veteran's service-connected pterygium "less likely than not played any part in his mental health conditions." In so finding, the examiner again stated that the Veteran had experienced very serious medical sequelae, inducing strokes, non-Hodgkin's lymphoma, chronic renal insufficiency, hypertension, hyperlipidemia, and chronic headaches. He also faced multiple psychosocial stressors and limited finances. The examiner went on to state that "with such a complicated psychosocial and medical background, it appears that vision loss in general has contributed minimally to his mental health symptoms, with bilateral pterygia contributing only minimally to overall vision loss." She concluded by opining that it was less likely than not that the Veteran's depression was caused or aggravated while the pterygia was active and continued after the service-connected pterygia improved. As outlined above, 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, supra. In this case, multiple VA and private treatment records confirm current psychological diagnoses, primarily major depression, anxiety, cognitive impairment, and mood disorder. As such, the first element is met. Allen supra. The Board will now address whether there is sufficient evidence to show that the Veteran's psychological disabilities were caused or aggravated by the service-connected pterygium. In this case, the record contains conflicting medical opinions on the issue of whether the Veteran's loss of vision due to service-connected pterygium caused a psychological disorder. As noted above, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden, supra; Wensch supra. Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan, supra; Derwinski, supra. With respect to the September 2010 VA opinion, the examiner stated that she was unable to resolve the issue regarding secondary service connection without resorting to mere speculation. The Board notes that such a conclusion essentially amounts to a non-opinion and is of no probative value here. See Fagan v. Shinseki, 573 F. 3d 1282 (Fed Cir. 2009) (holding held that when an examiner is unable to come to an opinion such "non-opinion" is neither positive nor negative support for a claim of service connection and is, therefore, not probative evidence). With respect to the August 2011 VA opinion which found that the pterygium neither caused nor aggravated his psychiatric conditions, this opinion was essentially deemed inadequate by the Court (see September 2012 JMR) because it failed to address whether the Veteran's psychiatric disorder(s) was/were caused or aggravated while the pterygium condition was active. In these circumstances, the Board cannot assign any probative value to the August 2011 VA opinion. We are thus left with the most recent VA opinion, received in April 2013, which determined that the Veteran's psychiatric disorders were neither caused nor aggravated by the service-connected pterygium while the pterygia was active. However, in reaching the above conclusion, the August 2013 examiner acknowledged that vision loss, in general, although minimally, nevertheless contributed to the Veteran's mental health symptoms, and that pterygia, although minimally, nevertheless contributed to the Veteran's overall vision loss. The issue is whether there is a relationship and it appears the VA examiner found such a relationship although a minimal one. As noted above, the evidence of record also contains multiple treatment records and letters submitted on the Veteran's behalf from treating physicians, Drs. V. and A. In particular, numerous treatment records outlined above (dated from 2003 to 2004, and from 2006 to 2007) show that Dr. V. related the Veteran's pterygium and associated decreased vision to his depression and other psychiatric disorders (i.e., "secondary to"). In April 2005, he expressly opined that the Veteran was increasingly depressed due to his loss of vision secondary to bilateral pterygium. Likewise, in March 2006, Dr. A. opined that "the stress of having diminished functional visual acuity has led to psychiatric treatment and... failing vision and secondary reactive depression makes him disabled from gainful employment." Drs. A. and V. were the Veteran's longtime treating physicians (Dr. A had been treating the Veteran since 1993; and Dr. V. since 2003). Dr. A., in particular, had been treating the Veteran since 1993, which post-dates the pterygium surgeries, but pre-dates the host of other medical (i.e., cataracts, cancer, strokes, dementia problems) later encountered by the Veteran. In other words, Dr. A. is qualified to give an opinion with a longitudinal view of the Veteran's psychiatric condition. Moreover, Drs. A. and V. had multiple opportunities to examine the Veteran over the course of many years. Drs. A. and V., in essence, agreed that the Veteran's psychological conditions were secondary to, or caused by, the service-connected pterygium and resulting loss of visual. Lastly, the Board acknowledges the Veteran's statements regarding the onset of his psychological symptoms. In this regard, in a June 1997 statement, the Veteran reported that he was no longer able to work as a medical technologist due to the scarring on his eyes from previous pterygium surgeries and resulting decreased vision. Notably, this was prior to any other eye-related diagnoses; this was also prior to the 1998 stroke with resulting dementia; and a host of other medical problems to which the Veteran's psychological problems have been variously attributed to. In subsequent statements and treatment records, the Veteran was noted as having ongoing depressive symptoms in association with his inability to work, read, and engage in other activities of daily living. Based on the foregoing, the Veteran's account of a progressive and contemporaneous deterioration of both his vision and mental state, are credible and corroborated by other evidence of record. In light of all the above, the Board resolves reasonable doubt in favor of the Veteran, and finds that major depression, anxiety, cognitive impairment, and mood disorder noted during the course of the appeal are secondary to the Veteran's service-connected pterygium. Therefore, service connection is warranted pursuant to 38 C.F.R. § 3.310. ORDER Entitlement to service connection for major depression, anxiety, cognitive impairment, and mood disorder as secondary to service-connected pterygium is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs