Citation Nr: 1327895	
Decision Date: 08/30/13    Archive Date: 09/05/13

DOCKET NO.  05-16 156	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for depression.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel







INTRODUCTION

The Veteran served on active duty from March 1962 to July 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

In March 2011, the Board reopened a previously denied claim of service connection for posttraumatic stress disorder (PTSD) and ultimately granted service connection for PTSD on the merits.  In the March 2011 decision, the Board also denied entitlement to service connection for depression.

The Veteran appealed the Board's 2011 decision to the United States Court of Appeals for Veterans Claims (Court).  The Court issued a June 2012 Memorandum Decision which vacated and remanded the Board's decision insofar as it denied service connection for depression, leaving intact the portion of the Board's decision that granted service connection for PTSD.  In April 2013, the Board remanded the claim for additional development consistent with the decision of the Court.  The case has been returned to the Board for further appellate review. 
 
The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.


FINDING OF FACT

The Veteran is not shown to have a diagnosis of depression that is separate and apart from his service-connected dysthymic disorder and PTSD.    





CONCLUSION OF LAW

Depression is not the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110, 1131, 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

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), provide 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. 

They also require VA to 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.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In this case, in March 2004 and April 2007 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The April 2007 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  The case was last adjudicated in June 2013.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post-service treatment records and a VA examination report. 

Moreover, the Board concludes that there has been substantial compliance with remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  The case was previously remanded in April 2013 for the Veteran to receive an additional VA examination and for an opinion to be obtained.  The Veteran underwent the requested VA examination and an opinion with adequate rationale was obtained. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the Veteran's claim. 


Analysis

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

"Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 

The Veteran contends that he has depression as result of service.  Specifically, he alleges that he has depression that is a separate and distinct disability apart from his service-connected PTSD and dysthymic disorder. 

The Veteran's service treatment records are negative for any complaints or clinical findings of depression.

The Veteran's claim for service connection for depression was received in March 2004.  While a November 2001 VA treatment note shows a diagnosis of depression, not otherwise specified, secondary to PTSD, this record lies outside the appeal period, which stems from the Veteran's March 2004 claim.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Therefore, this record cannot be used to show that the Veteran has a diagnosis of depression during the appeal period.  

In VA primary care provider notes dated October 2012 and April 2013, the Veteran was noted to have a history of PTSD/depression/anxiety. 

Pursuant to the Board's April 2013 remand directives, the Veteran underwent a VA psychiatric examination in May 2013.   The detailed examination report included mental status evaluation and psychological testing.  The examiner concluded that the Veteran did not present with any signs or symptoms of depression that would warrant an additional mood disorder/depression diagnosis.  The examiner stated that the Veteran did report some problems with depression that was consistent with dysthymic disorder.  Moreover, the examiner stated that the Veteran presented with not more than mild symptoms of depression at the present time which would be considered part of the dysthymic disorder.  In summary, the examiner stated that the Veteran did not have a depressive disorder that is a separate entity from the already diagnosed dysthymic disorder.    

In this case, a VA examiner has concluded that that the Veteran's complaints of depression are part and parcel of his service-connected dysthymic disorder, rather than a separately identifiable process.  Thus, with no separately diagnosed disability, service connection for depression must be denied.  








ORDER

Entitlement to service connection for depression is denied.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs