Citation Nr: 1326948 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-00 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder, claimed as due to the service-connected lumbosacral degenerative disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2012, the Board denied the Veteran's petition to reopen the claim for service connection for an acquired psychiatric disorder. The Veteran appealed the February 2012 decision to the United States Court of Appeals for Veterans Claims (Court), and in August 2012 the Court vacated the February 2012 decision in part and remanded the case for readjudication in compliance with an August 2012 Joint Motion for Remand. In December 2012, the Board remanded this case for further development and it has now been returned to the Board. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the appeal. As noted in the prior Board decisions, the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it; it is again referred to the AOJ for appropriate action. FINDING OF FACT The evidence is at least in equipoise to show that the Veteran has a current psychiatric disorder, diagnosed as a depressive disorder, that is related to his period of active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, an acquired psychiatric disorder, to include a depressive disorder, is due to his period of active service. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012). VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. VCAA also requires VA notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. The Board need not, however, discuss the sufficiency of the notification letter sent to the Veteran during the current appeal - or VA's development of his claim - in light of the fact that service connection for an acquired psychiatric disorders is being granted. Thus, any potential deficiency on the part of VA in complying with the provisions of VCAA has essentially been rendered moot by the Board's complete grant of the service connection benefit sought on appeal. Law and Regulations Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009) (March 5, 2009). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The Board notes that none of the psychiatric diseases claimed by or shown to be attributed to the Veteran are an enumerated chronic disease for VA compensation purposes entitled to service connection via a showing continuity of symptomatology. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). While psychoses are considered chronic diseases under 38 C.F.R. § 3.309(a), none of the psychiatric diagnoses attributed to the Veteran at any point during the appeal period is a psychosis. See 38 C.F.R. § 3.384. Thus, with regard to whether an acquired psychiatric disorder is related directly to service, a nexus must otherwise be established between the present disability and the disease or injury in service. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). As an initial matter, the Board notes that the Veteran has not alleged that the claimed disability was incurred in combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Analysis The Veteran claims that he has depression as a result of an in-service back injury. The Board notes that in a February 2008 rating decision, the Veteran was granted service connection for degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. The Veteran's July 1966 service entrance examination noted no psychiatric abnormality. Service treatment records dated in March 1969 show the Veteran was hospitalized for acute anxiety reaction manifested by nervousness, worry, and increased alcohol intake. He reported a history of low back pain, stress from family problems, and that he began to drink to control his nervousness. On admittance, it was thought that he made a suicidal gesture because he was in a semi-conscious state after he took 15 capsules of Librium along with alcohol. Later that month, he was transferred to another medical facility and given 20 days leave to discuss family matters with his wife. The final diagnosis was a chronic, immature personality, moderate, characterized by symptoms of anxiety, a tendency towards paranoid idea, suicide attempt, excessive use of alcohol, and some degree of "emotional stability." A March 1970 service separation examination revealed a normal psychological evaluation. In the corresponding report of medical history, the Veteran denied having or having had frequent trouble sleeping, depression or excessive worrying, loss of memory or amnesia, excessive drinking habit, and nervous trouble. In a June 2004 statement, the Veteran reported that he drank alcohol for his back pain following service discharge. He stated that that he was fired from a police department job after 1 1/2 years due to excessive drinking and that he lost four other jobs as a result of quitting or being fired for alcohol consumption and substance abuse. He further stated that he was seen at the VA hospital for back pain and became addicted to Percodan. He also stated that he was hospitalized for an attempted suicide. September 2004 VA treatment records show that the Veteran reported having been hospitalized for suicidal attempts in 1977 and for suicidal ideation in 1979. Correspondence in the claims file indicates that these records are not available. The Veteran underwent a VA mental health examination in January 2008, but the examiner did not review the Veteran's claims file. After examining the Veteran, the examiner diagnosed depressive disorder. The examiner opined that based on the Veteran's reports of heavy drinking, experience of depression after the in-service back injury, alcohol and drug problems, and lengthy period of incarceration, that he could not say with acceptable certainty that the depression was secondary to the back and that he could not resolve the issue without resort to mere speculation. As the Board found on a prior occasion, the January 2008 VA examination report was inadequate in that the examiner did not review the claims file and the opinion could not be provided without resorting to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2009). The Veteran was afforded another VA examination in April 2009. The examiner noted that the Veteran's reports of increased pain and depression had been inconsistent and that there was no documented objective indication of an increase in pain or depression over the past two years. The examiner indicated that the Veteran's lumbar disc condition reflected a mild to moderate finding and it was clinically improbable that a mild to moderate condition would produce significant depressive effects. In addition, the examination noted the numerous life events that could account for the Veteran's depression rendering an attribution of relationship to the spinal disc condition one of mere speculation. The examiner concluded that it was entirely unlikely the depression was caused by or meaningfully related to the lumbar disc condition. As the Board previously found, the April 2009 VA examination was inadequate to address the question of aggravation under §3.10(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Moreover, the Joint Motion indicated that the relevant issue is whether the psychological disorder increased in severity due to the service-connected back disability and not due to the natural process of the nonservice-connected psychiatric disorder. The Veteran was afforded another VA examination in February 2010. The examiner reviewed the claims file and examined the Veteran. He diagnosed depressive disorder and opined that the current psychiatric condition was not caused by or a result of the anxiety reaction while on active duty. As the Board found on a prior occasion, the February 2010 opinion was inadequate as the examiner did not provide an opinion concerning whether the claimed condition was caused or aggravated by the service-connected back disability. The Veteran was afforded another VA examination in April 2013. Following a review of the claims file and examination, the April 2013 VA examiner found that the depression was "at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness." The examiner then noted that the evidence reflects that the Veteran began showing signs of depression while on active duty following a back injury in 1967 and that he was given prescription narcotic pain medications and started using alcohol in lieu of the prescription. The examiner noted the Veteran's reports of depressive symptoms immediately after the injury as a result of being removed from his former duties and being put "behind a desk." He indicated that a loss of range of physical activity and change in status is a credible account consistent with extant research on chronic pain issues that correlate to mental health issues. He further stated that it was impossible to know when precisely the depression began without speculation because alcohol and narcotics both tend to produce central nervous system depressant effects. In addition, the April 2013 VA examiner addressed whether the depression was proximately due to or the result of the Veteran's service-connected disability. In doing so he addressed the statements the Veteran submitted from licensed social workers, licensed practical nurses, and his friends that suggested a relationship between his service-connected disability and his depression. The VA examiner stated that there was not sufficient evidence to make a more clear inference because alcohol and narcotic pain medications are both known to cause central nervous system depressive systems making it impossible to know for sure what caused his depression without resorting to mere speculation. The opinion of the April 2013 VA examination is reasonably explained and based on a history that is consistent with the information in the claims file and based on available medical knowledge. Taking into account the accuracy of the history recounted in the report and the quality of the VA examiner's reasoning, the April 2013 VA examination report is of the highest probative weight of all medical opinions received in connection with the Veteran's claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The other medical opinions of record are inadequate, and further medical opinion development is unlikely to satisfactorily resolve the differences in opinion. Moreover, the April 2013 VA examiner also spoke in terms of probability when he stated, "the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness." The Board concludes that this is a case where, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin of the Veteran's acquired psychiatric disability. There is not an actual conflict or a contradiction in the evidence, but rather there is reasonable disagreement among medical professionals as to the conclusions to be drawn from the evidence. Additionally, the most recent examiner noted that the Veteran's history of psychological treatment while in service and suggested that depression may have started at that time. This opinion supports the Veteran's that he had difficulties with depression due to back pain during & subsequent to service. Considering the evidence as the whole, under such circumstances, the benefit of the doubt is to be resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Accordingly, resolving the benefit of the doubt in favor of the Veteran, entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs