Citation Nr: 1331346 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-42 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a psychiatric disability, to include anxiety and depression. ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This matter has previously been before the Board, most recently in June 2013, at which time the Board remanded the claim for additional development of the evidence of record. The Board finds that there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT A psychiatric disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current psychiatric disability is related either to active service or to the Veteran's service-connected hypertension. CONCLUSION OF LAW A psychiatric disability was not incurred in or aggravated by active service, it is not the result of or aggravated by a service-connected disability, and a relationship between a psychiatric disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board 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 preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated April 2008, September 2009, January 2012, and March 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied the duty to notify the Veteran and had satisfied that duty prior to the adjudication in the July 2013 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that VA has fulfilled the duty to assist the Veteran. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. VA has obtained several examinations with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. The Veteran testified at a hearing before a Decision Review Officer at the RO in July 2010. The Veteran requested a hearing before the Board in a May 2011 substantive appeal. However, the Veteran withdrew that hearing request in a November 2011 statement. No further notice or assistance is required to fulfill VA's duty to assist . Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran claims that she has a psychiatric disability as a result of her service-connected hypertension disability, to include the medication that she takes for treatment of that disability. While the Veteran has not argued that her psychiatric disability is directly related to her active duty service, the Board will additionally address that theory of entitlement. Service connection may be granted for disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). In order to establish service connection for a claimed disability on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus or relationship between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's psychiatric disabilities of a mood disorder or anxiety disorder are not among the chronic diseases listed in 38 C.F.R. § 3.309(a), and service connection for those disabilities may not be established based on a continuity of symptomatology alone. Service connection may be established on a secondary basis 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) (2012); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be medical evidence of a current disability, a service-connected disability, and medical evidence of a nexus or relationship between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Regarding the presence of a current disability, the medical records show that the Veteran has been diagnosed with a mood disorder and anxiety disorder. Therefore, a current disability is shown. With regard to a service-connected disability for secondary service connection, the Veteran is service connected for hypertension. With respect to whether an in-service injury or disease is shown, the Veteran has not argued that she suffered from any psychiatric disability during active duty service. The Board notes that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including experiencing readily-observable physical symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362 (2005); Grottveit v. Brown, 5 Vet. App. 91 (1993). However, the Veteran does not claim that she experienced any symptoms associated with her current psychiatric disability during active service. The Veteran instead claims that her psychiatric disability is related to her service-connected hypertension. Furthermore, the Board notes that the service medical records show no complaints relating to any psychiatric disability in service and no treatment for any psychiatric disability in service. Accordingly, the Board finds that an in-service injury or disease has not been shown, and the Veteran's claim for direct service connection must be denied. Furthermore, there is no competent medical evidence of record that relates any current psychiatric disability to the Veteran's service. With respect to the Veteran's claim for service connection on a secondary basis, in July 2008, a VA clinician noted that the Veteran had a depressed mood and some "slightly obsessive symptoms," likely as a result of the propranolol that the Veteran took for treatment of hypertension. The VA clinician noted that propranolol caused depression in many people. The Veteran underwent a VA examination in March 2012. The examiner noted that the Veteran was diagnosed in 2008 with a mood disorder due to a general medical condition. The examiner noted the finding of the July 2008 clinician that the Veteran's depressed mood was linked to her use of propranolol. The examiner concluded that there was a paucity of evidence in the medical literature linking propranolol to depression, and the use of propranolol was not likely to fully explain the Veteran's difficulties with anxiety and depression. The examiner opined that it was unlikely that the Veteran's conditions of headache or hypertension caused or aggravated the Veteran's anxiety disorder. In June 2013, the Veteran underwent an additional VA examination. The examiner opined that it was less likely than not that the Veteran's anxiety disorder was caused by or exacerbated by service-connected hypertension with headaches. Instead, the examiner stated that it was more likely that the Veteran's anxiety symptoms were due to a history of an abusive relationship and significant job-related stress that resulted in a hospitalization in 2003. The examiner stated that the research literature on the effects of propranolol on anxiety indicated that propranolol was an effective treatment of anxiety, not that it caused anxiety. With regard to the Veteran's depression symptoms, the examiner noted that the literature was mixed. The examiner noted that one study used propranolol as a treatment for depression; one study indicated that propranolol did not increase depression, and another study found that propranolol increased depression. The examiner noted, that the Veteran was not currently reporting a depressed mood or other symptoms of depression, such as anhedonia, loss of energy, a change in appetite, or psychomotor changes. In summary, the examiner noted that the Veteran did not report symptoms of depression or a depressive disorder. The examiner indicated that there was no available evidence that medications used to treat hypertension with headache, specifically propranolol, caused or exacerbated anxiety. In fact, the examiner noted that propranolol effectively treated anxiety. Thus, upon review of the medical evidence of record, the Board observes that one treatment record links the Veteran's psychiatric disability to the medications that she took in treatment of her hypertension. However, VA examiners in March 2012 and June 2013 were unable to find any such connection. The Board places greater probative weight on the opinions of the March 2012 and June 2013 examiners for several reasons. Those opinions were offered following a full review of the Veteran's claims file. In contrast, the July 2008 treatment note indicated that it was the clinician's first time seeing the Veteran, and the clinician did not otherwise appear to have reviewed the Veteran's claims file. Additionally, the March 2012 and June 2013 opinions considered and weighed the medical treatise evidence before rendering an opinion, and the Board assigns greater weight to those opinions supported by a review of the relevant medical research. Accordingly, the Board affords great probative weight to the March 2012 and June 2013 examiners' opinions. To the extent that the Veteran believes that her psychiatric disability is related to her service-connected hypertension, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which she has first-hand knowledge, such as experiencing a readily-observable symptom such as sadness or nervousness. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran was provided with VA examinations based upon the competency of her observations of her symptoms. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the diagnosis and etiology of a psychiatric disability is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's acquired psychiatric disability is related to her hypertension, the Board ultimately affords the objective medical evidence of record, the weight of which does not find a connection between the Veteran's psychiatric disability and her service-connected hypertension, with greater probative weight than the lay opinions. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the Board finds that the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's psychiatric disability is not related to her to his service-hypertension disability, was not incurred in service, and that no psychosis manifested within one year of separation from service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disability is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs