Citation Nr: 1328903 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 08-03 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a mental disorder, including posttraumatic stress disorder (PTSD), major depressive disorder, and panic disorder with agoraphobia, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to December 1967. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a July 2007 rating decision, by the Muskogee, Oklahoma, Regional Office (RO), which in pertinent part denied service connection for a mental condition, including depression among others. In November 2009, the Veteran and his wife appeared and offered testimony at a hearing before an Acting Veterans Law Judge. A hearing transcript is of record. The Board remanded the issue in April 2010 and again in October 2011 for additional development. In July 2013, the Board informed the Veteran that the Acting Veterans Law Judge who conducted the 2009 hearing was no longer employed by the Board. He was offered an opportunity for another hearing, but he did not respond. FINDINGS OF FACT 1. The Veteran does not have a psychiatric disability attributable to military service. 2. A psychiatric disability has not been caused or made worse by service-connected cardiomegaly, kidney disease, diabetes, tinnitus, hypertension, erectile dysfunction, and/or hearing loss. CONCLUSION OF LAW The Veteran does not have a psychiatric disability that is the result of disease or injury incurred in or aggravated during active military service; a psychiatric disability is not secondary to service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty 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 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative 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 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 VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between an appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that all notification and development action needed to arrive at a decision as to the claim of service connection for tinnitus has been accomplished. Through a January 2007 letter, the Veteran was notified of the information and evidence needed to substantiate his claim of service connection. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include private medical evidence. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection. The letter also contained the general criteria for how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also finds that the January 2007 notice letter substantially satisfied the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In this letter, the RO notified the Veteran that VA was responsible for obtaining records from any Federal agency and would make reasonable efforts to obtain evidence from non-Federal custodians. He was encouraged to submit any evidence in his possession. The January 2007 letter did not include notification about how to substantiate a secondary service connection claim; however, the December 2007 statement of the case notified the Veteran about VA regulations for secondary service connection. At the November 2009 Board hearing he demonstrated actual knowledge via testimony that the claimed disability was caused or aggravated by service-connected disability. The agency of original jurisdiction readjudicated the claim on multiple occasions after November 2009. The Board finds that the Veteran has received all essential notice and has had a meaningful opportunity to participate in the development of his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). A remand for further notification of how to substantiate the claim is not necessary. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records, VA outpatient treatment records, VA examination reports, private medical records, and statements from the Veteran. The Veteran was afforded VA psychiatric examinations in August 2010 and November 2011 with review of the claims folder. Both examiners conducted pertinent clinical examinations and expressed opinions. The November 2011 examination addressed the possibility of secondary service connection. Thus, the Board has assisted the Veteran by affording him adequate VA psychiatric examinations and medical opinions. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. 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 elements is through a demonstration of continuity of symptomatology. Nevertheless, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a), which include psychoses. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus."). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused or aggravated by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Federal Circuit has held that "[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition such as depressive symptoms, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (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")). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran asserts that he had psychiatric symptoms beginning in military service. Alternatively, he contends that his psychiatric symptoms are secondary to his various service-connected disabilities, particularly his diabetes mellitus. Service treatment records, dated in August 1967, show that the Veteran was assessed as having an adjustment reaction with feelings of inadequacy and insecurity towards his future. It was noted that he would be separated in less than a month. The examiner determined that no further interviews were required. On his September 1967 Report of Medical History for separation, the Veteran denied having "nervous trouble of any sort" and "depression or excessive worry." On contemporaneous clinical evaluation, his psychiatric evaluation was normal. In December 2006, the Veteran reported that his personality changed after he returned from Vietnam. He started excessively consuming alcohol, fighting, and developed paranoia and agoraphobia. He had behavioral problems due to his irritability. He continued to experience significant paranoia and agoraphobia. He also submitted a letter from a friend who also attested to the Veteran's behavioral changes following service. In February 2007, the Veteran had a VA mental health clinic (MHC) intake interview. He complained about his labile moods, irritability, and anxiety. He described several stressful events in Vietnam and believed his symptoms were initially manifested in service. Upon symptom review query, the Veteran further acknowledged having auditory and visual hallucinations. The examiner listed a mood disorder. She commented that while the Veteran reports mood problems, mild audio/visual hallucinations, and agoraphobia, he was "pleasant and [amenable]" during the intake process. He was given medication for treatment. The Veteran returned to the VA MHC clinic in March 2007 for a diagnostic interview. He complained about paranoia and agoraphobia. He presented with appropriate grooming and wore dark sunglasses. He displayed a depressed and anxious mood congruent to his affect. He denied any current audio/ visual hallucinations, but acknowledged paranoid thoughts. The examiner diagnosed psychotic disorder not otherwise specified (NOS), panic disorder with agoraphobia, and depressive disorder NOS. In March, April, and May 2007, the Veteran had VA MHC medication management and psychotherapy consultations. He reported having auditory hallucinations since Vietnam, but believed he was able to "control it." He had a longstanding history of general violent ideations and occasional outbursts. Medication helped to alleviate his paranoia symptoms. The Veteran described himself as "doing well" at the May 2007 visit. The examiner noted current visual hallucinations involving "bigfoot" as the Veteran described himself as a bigfoot hunter and reported he saw bigfoot on several occasions. The Veteran acknowledged auditory hallucinations, but believed it was his conscience and a normal experience. In August 2007, the Veteran had a negative PTSD screen. The Veteran had a hearing in November 2009. He asserted that he had depression secondary to his service-connected diabetes. He stated that several of his physicians had agreed that his physical limitations were related to his depression. However, he could not obtain a written statement from them. One physician declined to do so because he was not a psychiatrist or psychologist. His wife reported that his depression was associated with his physical inability to participate in activities of daily living. VA primary care notes from June 2009 show that the Veteran had negative PTSD and depression screens. However, in August 2010, he had a positive PTSD screen. His primary care provider instructed him to call if he wanted a MHC referral. The Veteran had a VA psychiatric examination in August 2010. Mental status examination showed that he had an appropriate appearance. He displayed an appropriate affect and good mood. Thought content was notable for "magical thinking" and paranoid ideation. Delusions were listed as persecutory, but were not persistent. He had a long history of insomnia affecting all phases of sleep. The examiner also noted audio/visual hallucinations and inappropriate anger outbursts. The Veteran exhibited obsessive or ritualistic behaviors by frequently checking the stove and locking doors. He continued to have agoraphobia. The examiner assessed the Veteran's impulse control as poor, noting a history of violent/ assaultive behaviors. She assessed memory as mildly impaired. Quantitative testing results showed severe depression and suggested the presence of PTSD. However, the examiner believed the anxiety and depressive symptoms were inflating the score, which suggested PTSD. The examiner diagnosed major depressive disorder, recurrent, moderate, with psychotic features and gave an Axis II diagnosis of paranoid personality disorder. She commented that the Veteran was not treated for depression in the military, or for many years after service. She noted that he did not receive any current psychiatric treatment. She based her opinion on the review of the record, quantitative testing, and clinical interview. In December 2010, Dr. S.G, DO stated that he had treated the Veteran for the previous two years for a number of medical problems. He reported that the Veteran "has also developed depression due to his multiple medical problems and a history of [PTSD]." VA reexamined the Veteran in November 2011. He endorsed having the following symptoms: depressed mood, anxiety, suspiciousness, frequent panic attacks, sleep disturbance, mild memory loss, impaired judgment, difficulty establishing and maintaining effective work and social relationships, spatial disorientation, and intermittent inability to perform activities of daily living. He was not currently seeking psychiatric treatment. He was married and had social contacts. He had a history of alcohol abuse that had been in longstanding remission. He also recalled being in unspecified life threatening situations in Vietnam. The examiner specifically queried the Veteran about his own insight into his depressed mood. He responded that "they weren't allowed to win in Viet Nam and weren't welcome back." He was currently embarrassed by the government. He did not mention any service-connected disability to explain his depression. The examiner diagnosed depressive disorder NOS and commented that it was mild enough to not necessitate treatment. Based upon his response, she could not relate his mild depression to any of his current service-connected disabilities. The Veteran contends that his current depressive and anxiety disorders are related to service, or alternatively his service-connected disabilities. As explained below, the preponderance of the evidence is against the claim, and it will be denied. On occasion, the Veteran has provided reports alluding to a continuity of symptomatology. 38 C.F.R. § 3.303(b). In service, the Veteran sought psychiatric treatment shortly before separation. He was concerned about his future. The examiner assessed an adjustment reaction and did not recommend further treatment. STRs are otherwise negative for any psychiatric symptoms. At separation, the Veteran affirmatively denied having depressive symptoms or nervous trouble. (Notably, non-psychotic mental illnesses, such as an adjustment reaction, are not considered chronic diseases under 38 C.F.R. § 3.309(a) and the continuity of symptomatology provisions are not applicable for such. Walker, 708 F.3d at 1331.) The question of whether the Veteran's current depression and related psychiatric disorders had their onset in service nearly 40 years ago is complex, and the Veteran is not a medical professional. The Board does not consider his nexus reports competent evidence and they have no probative value. Woehlaert, 21 Vet. App. at 462. There is no competent evidence otherwise suggesting the current depression or any related psychiatric disorders had its onset in service. (See VA treatment records 2004 to 2010; private medical records; August 2010 and November 2011 VA examination reports). Service connection for depression or any related psychiatric disorder on a direct basis is consequently not warranted. 38 C.F.R. § 3.303. The Board finds the August 2010 VA examiner's opinion to be persuasive on the issue of direct service connection. She examined the Veteran, reviewed the claims folder, and provided a negative opinion with a rationale. Her rationale is plausible and consistent with prior reports. The Board considers the August 2010 VA medical opinion to be probative and weigh against the claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304; see also King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012). The evidence supporting the Veteran's assertion that his depression is secondary to service connected disabilities consists of his and his wife's reports. Briefly, the Board notes Dr. S.G.'s December 2010 letter expressing a positive opinion. Dr. S.G. is not a psychiatrist and did not conduct a clinical psychological evaluation. Gabrielson v. Brown, 7 Vet. App. 336 (1994) (Board may weigh a medical opinion on such factors such as reasoning employed by the medical professional, and whether or not and to what extent they review prior clinical records and other evidence). His opinion was based upon the Veteran's own reports, and its probative value depends upon the underlying credibility of the lay reports. Again, because the Veteran and his wife are not medical professionals, their capacity to report on nexus issues is limited. See id.; Waters, 601 F.3d 1274. However, they are competent to relate a medical history and recollections of an onset of mood changes associated with the onset or increased severity of his service-connected disabilities. See Layno, 6 Vet. App. at 469; see Jandreau, 492 F.3d at 1377. The issue is whether such reports are persuasive in light of the record. In assessing probative value, the Board considers such factors as possible bias, conflicting statements, internal inconsistency, facial plausibility and consistency with other evidence. Buchanan v. Nicolson, 451 F.3d 1331, 1336-7 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F. 3d 1447, 1481 (Fed. Cir. 1997); (the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). After review, the Board finds the Veteran's reports and his wife's hearing testimony to have low probative value because they are inconsistent with the reports given to healthcare providers. The Veteran has had isolated mental health treatment. None of his reports given to treating clinicians is suggestive that his current service-connected disabilities are related to his psychiatric symptoms. (See VA MHC treatment records from February to May 2007). Upon direct questioning by the November 2011 VA examiner, he did not cite any service-connected disability as an instigating event for his depressed mood. Rather, it appears the Veteran has had longstanding irritability, agoraphobia, and mild psychotic symptoms, all of which have unknown origins. (See August 2010 and November 2011 VA examination reports). The Board also finds the November 2011 VA examiner's opinion to be persuasive. She examined the Veteran, reviewed the claims folder, and provided a negative opinion with a rationale. The rationale is plausible and consistent with prior reports. The Board considers the November 2011 VA medical opinion to be probative and persuasive when weighed against the other evidence, including the Veteran's statements. Nieves-Rodriguez, 22 Vet. App. at 304; see also King, 700 F.3d 1339. In other words, the preponderance of the evidence is against finding a nexus to service on a secondary basis. 38 C.F.R. § 3.310. For the foregoing reasons, the Board finds that the claim of service connection for psychiatric disability of any type must be denied. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has not been found to definitively have a diagnosis of PTSD, and other diagnosed entities have not been linked by competent authority to military service or to service-connected disability. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for a mental disorder, including posttraumatic stress disorder (PTSD), major depressive disorder, and panic disorder with agoraphobia is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs