Citation Nr: 1328376 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-31 106 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service- connected lumbosacral strain. (Entitlement to service connection for a left leg disability unrelated to service-connected lumbosacral strain and for a right leg disability unrelated to service-connected lumbosacral strain, entitlement to a schedular rating higher than 20 percent for lumbosacral strain, entitlement to an extraschedular rating higher than 20 percent for lumbosacral strain, and entitlement to a total rating based on individual unemployability were the subject of a July 2012 Board of Veterans' Appeals (Board) remand. These issues will be considered in a separate decision once they are recertified to the Board.) REPRESENTATION Veteran represented by: Sean A. Ravin, Esq. WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to February 1970. This matter comes before the Board from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Service connection for PTSD was denied therein. The Veteran appealed this determination. Subsequently, jurisdiction was transferred to the RO in San Diego, California. In September 2005, the Veteran testified regarding this matter at a hearing before a Decision Review Officer in September 2005. He also testified regarding this matter at a Board hearing before a Veterans Law Judge in August 2007. In January 2010, the Board remanded this matter for additional development. Of note is that the Veteran, upon being informed by the Board in May 2012 that the Veterans Law Judge who conducted the aforementioned hearing was not available to decide this matter, indicated in a June 2012 statement that he did not desire another hearing before an available Veterans Law Judge. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." At this time, the Board has recharacterized this matter from one of service connection for PTSD to one of service connection for an acquired psychiatric disorder which includes PTSD and all other psychiatric disorders claimed or diagnosed. A psychiatric claim indeed must be construed liberally to encompass claimed and diagnosed disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for depression is therefore also considered herein. This is true despite the fact that this benefit was denied by the RO in June 2005 and September 2006 rating decisions, that whether new and material evidence has been received to reopen the claim for this benefit was referred by the Board to the RO in the January 2010 remand, and that service connection for this benefit was referred by the Board to the agency of original jurisdiction (AOJ), which is the RO in this case, in a July 2012 decision and remand. Both of the rating decisions were issued after the rating decision that is the subject matter of his appeal, and therefore the instant claim is subject to de novo review. There is also no indication that any action has been taken by the RO/AOJ to adjudicate the issues referred by the Board. The Board would further note, however, that in recent correspondence, the Veteran's attorney has limited the claim for service connection for psychiatric disorder to PTSD and depression. Consequently, the Board will similarly focus its adjudication on the diagnosed disorders of PTSD, mood disorder, depression, depressive disorder, not otherwise specified (NOS), and major depressive disorder. Finally, the issues of whether new and material evidence has been received to reopen service connection for a right knee condition and for a left knee condition, to include as secondary to service-connected lumbosacral strain, were referred by the Board to the RO/AOJ in the January 2010 remand. There still is no indication of adjudication in this regard. These issues therefore once again are referred to the RO/AOJ for appropriate action. FINDING OF FACT The evidence of record shows that the Veteran's current acquired psychiatric disorders of mood disorder, depression, depressive disorder, NOS, and major depressive disorder, but not PTSD or other diagnosed psychiatric disability, are due to his service-connected lumbosacral strain. CONCLUSION OF LAW The criteria for entitlement to service connection for mood disorder, depression, depressive disorder, NOS, and major depressive disorder, but not PTSD or other psychiatric disability, have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1153, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.2, 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 3.384, 4.125, 4.130, Diagnostic Codes 9201-9440 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Before addressing the merits, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating entitlement to VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Discussion of these duties is not necessary because service connection for mood disorder, depression, depressive disorder, NOS, and major depressive disorder is granted herein. It follows that any errors that were have been made regarding these duties were harmless. Any errors made with respect to ensuring at least substantial compliance with the Board's previous remand also were harmless for this same reason. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999), aff'd Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). II. Service Connection Service connection means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred in service, or if preexisting service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there generally must be (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus between the current disability and the in-service disease or injury. Hickson v. West, 12 Vet. App. 247 (1999); Barr v. Nicholson, 21 Vet. App. 303 (2007). Establishing service connection specifically for PTSD requires (1) a diagnosis in conformity with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), (2) an in-service stressor, and (3) a nexus between the diagnosis and the in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a); Cohen v. Brown, 10 Vet. App. 128 (1997). If the claimed in-service stressor concerns combat with the enemy, lay evidence from the Veteran is sufficient unless the stressor is inconsistent with the circumstances, conditions, or hardships of service or there is clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(2); Zarycki v. Brown, 6 Vet. App. 91 (1993). If the claimed in-service stressor concerns fear of hostile military or terrorist activity, lay evidence from the Veteran is sufficient provided that a VA or VA-contracted psychologist or psychiatrist confirms that the manifested symptoms are related to a stressor that is adequate to support a diagnosis of PTSD and unless the stressor is inconsistent with the places, types, and circumstances of service or there is clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). If the claimed in- service stressor does not concern combat with the enemy or fear of hostile military or terrorist activity, there must be evidence other than lay evidence from the Veteran or after-the-fact medical evidence of nexus. Zarycki, 6 Vet. App. at 91; Cohen, 10 Vet. App. at 142; Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). One special circumstance additionally exists. When the claimed in-service stressor concerns a personal assault, after-the-fact medical evidence of nexus is sufficient. Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272 (1999). Other sufficient evidence includes, but is not limited, to law enforcement, rape crisis or counseling center, hospital, or physician records, tests for pregnancy or sexually transmitted diseases, statements from family, roommates, fellow service members, or clergy, and anything showing behavior changes such as a request for a transfer to another military duty assignment, deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, and unexplained economic and social differences. 38 C.F.R. § 3.304(f)(5); YR v. West, 11 Vet. App. 393 (1998); Moreau, 9 Vet. App. at 389. Service connection may be established for a disease in a variety of additional manners. A psychosis is a chronic disease. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). Psychosis includes brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition (GMC), psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. 38 C.F.R. §§ 3.384, 4.130, Diagnostic Codes 9201-9211. For any disease that is diagnosed after discharge, service connection is established when the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). For chronic diseases, service connection may be established through chronicity or continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A chronic disease during service is shown when there is a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). Merely isolated findings are insufficient, as is a diagnosis including the word chronic. Id. Subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. Id.; Barr, 21 Vet. App. at 303. Continuity of symptomatology after service is required if the disease is noted during service but is not chronic, or where a determination that it is chronic may legitimately be questioned. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Finally, service connection is presumed for chronic diseases when service was for 90 days or more during a period of war or after December 31, 1946, and the disease manifested, whether or not it was diagnosed, to a compensable degree within one year from the date of discharge. 38 U.S.C.A. § 1112(a); 38 C.F.R. §§ 3.307(a), (c). Evidence rebutting in-service incurrence or aggravation of the disease must be taken into consideration, however. 38 U.S.C.A. §§ 1113, 1153; 38 C.F.R. §§ 3.307(d), 3.309(a). Secondary service connection means that a current nonservice-connected disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To establish service connection on a secondary basis, there must be a current disability proximately caused or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). Compensation is paid only for the degree of disability over and above the baseline plus natural progression. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 439. There must be a permanent worsening beyond natural progression of the disorder, rather than temporary or intermittent flare-ups. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The Board must identify the evidence it finds to be persuasive and unpersuasive and explain why any favorable evidence is unpersuasive. Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Both medical and lay evidence may be discounted in light of inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, any reasonable doubt is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. The claimant thus prevails when the evidence supports the claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Only the most salient and relevant evidence must be discussed, although all the evidence must be reviewed. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board finds that service connection for mood disorder, depression, depressive disorder, NOS, and major depressive disorder is warranted. A current disability exists when there is a disability at the time a claim is filed or at any time during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran filed the instant claim in late 2002. Since 2003, VA treatment records have contained unequivocal diagnoses of mood disorder, depression, depression NOS, depressive disorder NOS, major depression, major depressive disorder, anxiety, anxiety NOS, and insomnia. Depressive disorder NOS was diagnosed at a June 2006 VA QTC psychiatric examination. At a September 2006 psychiatric evaluation for the Social Security Administration (SSA), this same diagnosis was made along with anxiety disorder NOS. The Veteran, in sum, currently has an acquired psychiatric disorder. With respect to PTSD, VA treatment records document that rule out PTSD was diagnosed when the Veteran first was seen in March 2003 by H.M., a nurse practitioner with the behavioral health department. It was noted that he had some symptoms of PTSD. H.M. continued this diagnosis in May 2003. Also in May 2003, psychology intern M.S. determined that the Veteran met the DSM-IV criteria for a PTSD diagnosis. I.C., the supervising psychologist, concurred. The Veteran was referred for a team interview, however. Following this interview, he was diagnosed with subthreshold PTSD by M.S. with I.C. concurring. It was explained to him in July 2003 that his determination was based on his description of his stressor. PTSD was diagnosed again by H.M. in August 2003. Yet H.M. diagnosed rule out PTSD in July 2004. The same diagnosis was made by staff psychiatrist J.N. in August 2005. In September 2005, J.N. diagnosed PTSD. PTSD was diagnosed by a psychiatrist, W.K., in February 2006. A diagnosis of PTSD was made by L.V., a social worker, by August 2008. Staff psychiatrist S.L. diagnosed symptoms of PTSD by September 2009. Noted in January 2011 was that the Veteran was unclear and searching when asked to identify his PTSD symptoms. PTSD was diagnosed by K.I., a nurse practitioner, by September 2011. As noted above, PTSD was not diagnosed by the examiner who conducted the VA QTC psychiatric examination. This examiner, R.A., was identified as a member of the American Board of Psychiatry and Neurology. L.S., the psychiatrist who conducted the psychiatric evaluation for the SSA, finally indicated that the Veteran's symptoms do not fulfill the criteria for PTSD. It also was indicated that he did not have the requisite substantial impairment. It follows that there is considerable conflict as to whether the Veteran's current acquired psychiatric disorder includes PTSD. The Board concludes that it does not. Notable at the outset, a diagnosis of rule out PTSD, subthreshold PTSD, and symptoms of PTSD is not the same as a diagnosis of PTSD. Each indeed conveys that the DMS-IV criteria for a PTSD diagnosis have not been met. Regardless of the diagnosis, one made by a psychologist or a psychiatrist is more persuasive than one made by a social worker or a nurse practitioner. As physicians specializing in mental health, psychologists and psychiatrists have more training and expertise to make the appropriate diagnosis. The positive diagnoses of PTSD made by H.M., K.I., and L.V. therefore are not that persuasive. The positive diagnosis of M.S. also is less persuasive than that of a psychologist or a psychiatrist given that, as an intern, M.S. had not yet completed training and thus not yet developed significant expertise. Further, H.M. and M.S.'s positive diagnoses ultimately were changed into negative diagnoses. The same is true regarding supervisor I.C. With respect to other psychologists or psychiatrists, J.N. and W.K. provided the only positive diagnoses. Explicit negative diagnoses were provided by S.L. and L.S., while an implicit negative diagnosis was provided by R.A. There thus ultimately are more negative diagnoses than positive diagnoses, both overall and specifically from the various psychologists and psychiatrists. The positive diagnoses are not explained, whereas the negative diagnoses are explained. Problems indeed were noted with respect to the Veteran's symptoms, stressors, and the severity of his impairment. Acknowledgement is given to the fact that none of the aforementioned individuals has discussed the conflict regarding whether or not the Veteran has PTSD in attempt at reconciliation. With respect to those individuals treating him, there obviously is no requirement for such a discussion. It is in the individual's discretion as to how best to treat him, which may or may not include a discussion concerning the presence or absence of PTSD. With respect to the SSA psychiatric evaluation, only the SSA has authority to determine what is required. With respect to the VA QTC psychiatric examination, VA clearly has authority to determine what is required. Yet an examiner does not have to discuss why the opinion rendered differs from those of record in order for the examination to be adequate. Roberson v. Shinseki, 22 Vet. App. 358 (2009). The examiner further does not have to weigh the evidence. Thompson v. Gober, 14 Vet. App. 187 (2000). For the examination to be adequate, the examiner simply must consider the evidence. Id. R.A. considered the evidence of record as of the time the examination was conducted. Reference indeed was made to review of the Veteran's claims file. There can be no valid claim if there is no current disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Since the Veteran's current acquired psychiatric disorder does not include PTSD, service connection for PTSD cannot be established. No discussion of his claimed in-service stressors, that he witnessed the airplane next to his being shot down by an enemy missile in 1967 and that he awoke to a fellow service member fondling him in 1968, and of a nexus between those incidents and PTSD therefore is necessary. Going back to the diagnoses comprising the Veteran's current acquired psychiatric disorder, none constitute a psychosis. He does not have a chronic disease, in other words. Chronicity and continuity of symptomatology therefore cannot be established. Presumptive service connection based on manifestation within one year of the Veteran's discharge in February 1970 also cannot be established, notwithstanding that he served for more than 90 days during the Vietnam era period of war which occurred after December 31, 1946. 38 U.S.C.A. § 101(29); 38 C.F.R. § 3.2(f). That leaves for consideration service connection in general and secondary service connection. Some VA treatment records reveal that the diagnoses of the Veteran's current acquired psychiatric disorders were made following his description of his aforementioned claimed in- service stressors. Yet other VA treatment records show that some of these diagnoses have been attributed to his service- connected lumbosacral strain. In September 2004, orthopedic surgeon P.H. opined that the Veteran's depression is related to his low back pain. W.K. opined that the Veteran's depression is "directly related to his chronic medical condition, more specifically chronic back and shoulder pain[,]"in March 2006. In September 2009 and October 2010, S.L.'s opined that the Veteran's mood disorder is secondary to his general medical condition (GMC). Specific reference was made to his serious physical problems and chronic pain, to include back pain. A mood disorder secondary to GMC again was mentioned by D.R., a social worker, in January 2011. K.I. opined in March, April, and September 2011 that the Veteran's mood disorder, depression, and major depressive disorder are related to his GMC. Chronic back pain resulting in low mood was mentioned. The Veteran reported that his back is "really a problem" and "drags [him] down." In an October 2011, the Veteran reported that his pain impacts his mood. K.I. indicated that he continued to have depression related to his chronic back pain. Indicated by K.I. in March 2012 is that the Veteran's back pain is very depressing for him. Significant distress from chronic pain in his low back was referenced. Finally, R.A. opined following the VA QTC psychiatric examination that the Veteran's depressive disorder NOS is because of his medical condition. R.A. clarified that this diagnosis is more than likely a result of service-connected lumbosacral strain. In sum, it has been determined that the Veteran's mood disorder, depression, depressive disorder NOS, and major depressive disorders are attributable to his GMC which chiefly includes back or low back pain. Moreover, some of these determinations have been made repeatedly. No contrary determinations have been made. There is unanimous agreement that at least some of the diagnoses comprising the Veteran's acquired psychiatric disorder are attributable to his service-connected lumbosacral strain, in other words. The relationship is one of causation rather than aggravation. At no point was the word aggravation or any similar word or phrase used in providing the opinions. Utilized words and phrases, such as directly, secondary, and because of, rather connote causation. Factors in assessing a medical opinion include the qualifications and expertise of the examiner, access to the claims file or other pertinent evidence, the scope of the examination, the accuracy of the factual premise underlying the opinion, the rationale offered for it, and the degree of certainty provided. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Prejean v. West, 13 Vet. App. 444 (2000); Black v. Brown, 10 Vet. App. 297 (1997); Ardison v. Brown, 6 Vet. App. 405 (1994); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467 (1993). None of these factors is particularly problematic here. While some of the aforementioned opinions were rendered by a social worker and a nurse practitioner and one was rendered by a physician specializing in a field other than mental health, many were rendered by a psychologist or psychiatrist. W.K.'s opinion was noted to be based on evaluation of the Veteran and "available information." It is reiterated that R.A. reviewed the claims file in addition to examining him. All other individuals evaluated the Veteran in some form or another, as they participated in his treatment. There is no indication that any evaluation of or the examination of him was of inadequate scope. There also is no indication that any of the opinions was based on an inaccurate factual premise. As service connection for lumbosacral strain was granted, it is undisputed that the Veteran has back or low back pain. It further is undisputed that this pain is significant in light of his frequent complaints in this regard. These complaints form the basis, or rationale, for the opinions. Ambiguous language finally was not used in providing them, and hesitancy otherwise is not apparent. No other criteria exist for establishing secondary service connection. Accordingly, secondary service connection for mood disorder, depression, depressive disorder, NOS, and major depressive disorder is established. This benefit thus is granted without more discussion. Such grant renders it unnecessary to discuss whether or not service connection in general also is warranted. Velez v. Shinseki, 23 Vet. App. 199 (2009); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd, 421 F.3d 1346 (Fed. Cir. 2005); Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000); Ashford v. Brown, 10 Vet. App. 120(1997). ORDER Service connection for a mood disorder, depression, depressive disorder, NOS, and major depressive disorder is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs