Citation Nr: 1329499 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 05-38 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include as secondary to cervical and lumbar degenerative disc disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from March 1971 to March 1973. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case was remanded for further development in July 2008, July 2009, and June 2010. In October 2011, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court granted a joint motion for remand. The Board again remanded the case for further development in December 2012 and April 2013. As indicated in prior Board decisions, the issue of entitlement to a total disability rating based on individual unemployability 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, and it is referred to the AOJ for appropriate action. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. A psychiatric disability did not manifest in service or for many years thereafter, and any current psychiatric disability is unrelated to service. 2. A current psychiatric disability was not caused or aggravated by service connected lumbar or cervical spine disease. CONCLUSIONS OF LAW 1. A psychiatric disability was not incurred in or aggravated by service, and a psychosis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307. 3.309 (2012). 2. A psychiatric disability is not proximately due to, the result of, or aggravated by service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2009 and June 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in July 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations and opinions, discussed below. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the appeal. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted 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). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the Veteran has not been diagnosed with a chronic disease such as a psychosis and there was no chronic disease noted in service. The chronicity and continuity provisions of 38 C.F.R. § 3.303(b) are therefore inapplicable. While the Veteran has met the current disability requirement, as he has been diagnosed with major depression and anxiety, the evidence does not reflect that any currently psychiatric disability is related to service. There are no references to complaints, symptoms, treatment, or diagnoses relating to any psychiatric disability in the service treatment records, and the January 1973 separation examination report indicates that psychiatric examination was normal. Moreover, the only medical opinion on this question is that of the 2013 VA examiner, who, after reviewing the claims file and examining the Veteran, found many inconsistencies in his statements over the years and concluded that the Veteran's current depressive disorder and anxiety disorder were unrelated to service. While his rationale was not exhaustive, viewed in the context of his thorough review of the evidence in the claims file and the other evidence indicating lack of nexus between the current psychiatric disabilities and service, the February 2013 VA examiner's opinion of a lack of nexus is entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In addition, the Veteran has indicated in his written statements and statements to health care providers that his depression arose many years after service, and there is no claim or evidence indicating that his current psychiatric disabilities are, or may be directly associated with, service. Rather, the Veteran's primary argument has been that his current psychiatric disabilities are secondary to his service-connected lumbar and cervical spine disabilities. The preponderance of the evidence is therefore against entitlement to service connection for a psychiatric disability on a direct incurrence basis. As to secondary service connection, service connection is warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his 2004 claim, is more restrictive, the former regulation is applicable. In any event, the Board will find below that there is no aggravation. The Veteran was granted entitlement to service connection for lumbar and cervical spine disabilities effective in June 2003. He claims that his current major depression and anxiety disorder are caused or aggravated by these service connected spine disabilities. There are multiple medical opinions on this question. In a September 2009 letter, the Veteran's treating physician, Dr. R.M., indicated that he had major depression and generalized anxiety, and, "In my opinion these problems started and are secondary to his back problems." Similarly, in a June 2010 letter, a counselor with the Texas Department of Assistive and Rehabilitative services, K.S., indicated that she had met with the Veteran on several occasions, including in May 2010, and that he was not ready to consider vocational rehabilitation services "as he continues to have ongoing issues with depression/ anxiety which are secondary to his back." There is also an opinion from the psychologist who performed the November 2010 VA examiner, but the parties to the joint motion found that the Board erred in finding that this opinion indicated a lack of causation or aggravation and the Board will therefore not consider this opinion further herein. In February 2013, the same psychologist reexamined the Veteran and prepared a supplemental report. As indicated in the April 2013 remand, the psychologist did not address whether the psychiatric disabilities were aggravated by the service connected cervical and lumbar spine disease. The psychologist did not explicitly address whether the psychiatric disabilities were caused by the service connected cervical and lumbar spine disease, however, for the reasons below, the undersigned finds that he implicitly addressed this issue. In the February 2013 VA examination report, the psychologist noted that the Veteran claimed that his back pain had caused him to be depressed, but, after an extensive review of the evidence of record and examination findings, the examiner concluded that inconsistencies in the Veteran's report indicated that his psychiatric disabilities were not likely incurred in or caused by the claimed in-service injury, event, or illness. In response to the Board's April 2013 remand, the same psychologist again offered an opinion, this time focused on the question of aggravation. After another extensive review of the claims file, to include consideration of the foregoing opinions and six factors that would support that there was aggravation and fourteen factors against such aggravation, the psychologist opined: While there have been subjective complaints of depression or anxiety being related to back pain, the subjective complaints have been inconsistent, and the question of exaggeration of symptoms had been raised. While the psychiatric treating source, a psychological evaluative source, and vocational rehabilitation source have indicated or opined that depression and/or anxiety have been related to back pain, in this examiner's opinion the preponderance of the evidence tends to not support that a diagnosed psychiatric disorder was aggravated (i.e. permanently worsened) by the appellant's cervical and lumbar degenerative disc disease with lumbar spondylosis. Taken as a whole the VA psychologist's opinions support the conclusion that the Veteran's service connected lumbar and cervical spine disease neither caused nor aggravated his psychiatric disabilities. See Monzingo, 26 Vet. App. at 106; Acevedo, 25 Vet. App. at 294. Both the conclusion that the psychiatric disabilities were not caused by in-service illness, to include lumbar and cervical spine disease, and the conclusion that his psychiatric illnesses were not aggravated by the lumbar and cervical spine disease, which would necessarily indicate a lack of causation, are broad enough to conclude that the lumbar and cervical spine disease did not cause or aggravated a psychiatric disability. The VA psychologist's opinions are further of greater probative weight than the private opinions. While the VA psychologist exhaustively reviewed the evidence and gave a detailed rationale for his conclusions including a listing of the factors for and against aggravation, the private opinions gave little or no rationale. Therefore, the VA psychologist's opinions are of greater probative weight as to the questions relating secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The weight of the evidence therefore preponderates against finding that a current psychiatric disorder, to include depressive and/or anxiety disorders were caused or are aggravated by lumbar or cervical spine disease. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disability, to include secondary to cervical and lumbar degenerative disc disease. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disability, to include as secondary to cervical and lumbar degenerative disc disease, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs