Citation Nr: 1332286	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  10-09 185	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include as secondary to service-connected lumbosacral myositis.

2. Entitlement to service connection for PTSD.

3. Entitlement to service connection for right leg lumbar radiculopathy, to include as secondary to service-connected lumbosacral myositis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans




ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from October 1970 to April 1972 with additional service in the Army National Guard. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the RO. In that rating decision, the RO denied entitlement to service connection for depressive disorder and right leg radiculopathy.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal herein decided.

The issues of entitlement to service connection for PTSD and right leg lumbar radiculopathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Depressive disorder is related to his service-connected lumbosacral myositis.    





CONCLUSION OF LAW

Depressive disorder is proximately due to the service-connected lumbosacral myositis. 38 C.F.R. § 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

Given the favorable disposition of the claim for service connection, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished.

Laws and Regulations

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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 

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).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases. 

38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006).

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (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").

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

As an initial matter, the Board notes that the Veteran does not allege nor does the record show that he engaged in combat with the enemy. Thus, the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case.

In this case, the Veteran asserts that he has an acquired psychiatric disorder causally related to his service-connected lumbar spine disability. Specifically, he asserts that his lumbar spine disability and pain related thereto has caused or contributed to his symptoms of depression.

An August 2004 VA psychiatric consult note reflects the Veteran's complaint of symptoms of depression associated with his chronic back pain. He reported that his mood varies, at times he feels ok other times he feels sad and isolated. He had difficulty sleeping, had poor appetite and energy and was irritable. He denied suicidal or homicidal ideation, auditory or visual hallucinations and delusions. However, he did feel that his co-workers watched him because he was absent very often due to doctors appointments. He had good concentration. He was divorced and lived with his daughter. He had no reported hobbies. He worked as a clerk for an insurance company.

On mental status examination, the Axis I diagnosis was depressive disorder, NOS (not otherwise specified). The psychiatrist reported that the Veteran was "experiencing symptoms of depression, most likely related to his medical illness (chronic back pain). It was noted that the Veteran was on several serotonergic medications to manage his depression. The psychiatrist found that no other management for depression was available at the clinic as there was a synergistic action between the medications he was taking and adding or increasing doses of antidepressants could cause serotonergic syndrome. It was recommended that the Veteran engage in individual therapy at the pain clinic with a psychologist and continue with his medication regiment.

A June 2008 report of VA mental disorders examination reflects the Veteran's report of symptoms such as lack of motivation, social withdrawal and feelings of hopelessness with onset "three years ago on a daily basis." 

On examination, the Axis I diagnosis was depressive disorder, NOS. The psychiatrist opined that the depressive disorder was not caused by or a result of the service-connected lumbosacral myositis. The psychiatrist's rationale for the opinion was "there is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment prior to the military service. There is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment during the military service. While military duty with the National Guard in June 1987, veteran was involved in MVA and injured his back. He did not seek psychiatric treatment. There is no evidence of psychiatric complaints, psychiatric findings, nor psychiatric treatment within one year after discharge from the military service. Veteran sought psychiatric care in 2004, seven years after the motor vehicle accident that led to his service-connected conditions.

A November 2011 private medical report reflects that the Veteran reported feeling very anxious, had crying spells and felt constant pain associated with the back injury he sustained in June 1987. The Veteran had constant nightmares about the accident in 1987 which caused severe anxiety, panic attacks and desperation. He had constant suicidal thoughts, decreased interest in life and heard voices telling him to die to avoid the pain. He had constant crying spells, sleep impairment, vivid dreams of the accident and disorganized thought and behavior. The psychiatrist noted that the Veteran avoided talking about the accident, typical of PTSD patients.

On mental status examination, the psychiatrist found that the Veteran had severe depressed mood, anxiety, nightmares and vivid dreams about the accident in 1987. The psychiatrist found that the Veteran felt depressed, worthless, had suicidal thoughts and exhibited symptoms of PTSD as a result of the accident that caused his service-connected back disability. The Axis I diagnoses were PTSD and major depression disorder.

In this case, the Board finds that the Veteran is competent to report symptoms of a psychiatric disorder that he experiences as a result of his service-connected lumbar spine disability and pain related thereto. Further, the Board finds the Veteran's report of symptoms to be credible See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d at 1336 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994).

The June 2008 VA examining psychiatrist diagnosed the Veteran with depressive disorder, NOS; however, the psychiatrist opined that the depressive disorder was not caused by or a result of the service-connected lumbosacral myositis. The psychiatrist's rationale was that there was no relationship because the Veteran did not complain of or seek treatment for a psychiatric disorder in service, within a year of service or at a time contemporaneous to his motor vehicle accident; thus, service connection was not warranted. However, this opinion is flawed. The psychiatrist provides no real discussion concerning the potential impact of the service-connected lumbar spine disability on the diagnosed depressive disorder (i.e., the psychiatrist does not really address whether the service-connected lumbar spine disability proximately caused or aggravated the depressive disorder). 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In addition, the psychiatrist did not take into account the Veteran's lay assertions.  See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"). Moreover, the Board has found the Veteran's assertions in this regard to be credible. Thus, the January 2012 VA examiner's opinion is of little probative value.

By contrast the November 2011 psychiatrist did address whether the service-connected lumbar spine disability caused or aggravated the depression and based her conclusion on the Veteran's (credible) statements. Thus, her opinion did not suffer from the same flaws as those of the June 2008 VA physician and is entitled to greater probative weight. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). 

The Board finds that the weight of the evidence supports a relationship between the Veteran's depressive disorder and his service-connected lumbosacral myositis.  Accordingly, service connection for the depressive disorder must be granted.

 

ORDER

Entitlement to service connection for a depressive disorder secondary to service-connected lumbosacral myositis is granted.


REMAND

There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f).

In this case, there is a diagnosis of PTSD (November 2011) and credible supporting evidence that the claimed in-service stressor actually occurred; however, what is lacking is medical evidence of a causal nexus between the current symptomatology and the specific claimed in-service stressor. Under these circumstances, the Board finds an opinion is necessary to address whether the Veteran has PTSD due to the accident that occurred in June 1987.

As to the Veteran's claim for entitlement to service connection for right leg lumbar radiculopathy, the Board reiterates that under 38 C.F.R. § 3.310(a) (2012), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006) (see 38 C.F.R. § 3.310(b)).

Service connection is in effect for lumbosacral myositis. The Veteran asserts that he has right leg lumbar radiculopathy related to lumbosacral myositis.

A June 2008 report of VA peripheral nerves examination reflects that the Veteran did not have right leg radiculopathy. A February 2010 report of VA spine examination reflects a diagnosis of, in pertinent part, right sciatica. A March 2010 report of electromyographic examination documents "normal study, no evidence of right lower extremity radiculopathy." An August 2010 medical evaluation report documents, in pertinent part, right L5-S1 radiculopathy and L4-L5 radiculopathy. A February 2011 report of VA spine examination indicates that there was no evidence of lumbar radiculopathy.

However, the Board finds that the evidence of record, including that noted above, fails to adequately resolve the issue of whether the Veteran, at any time pertinent to this appeal period, had right leg lumbar radiculopathy due to or aggravated by the service-connected lumbosacral myositis.  See McClain v. Nicholson, 21 Vet. App. 319 (2007).  Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Under these circumstances, the Board finds an opinion is necessary to address whether the Veteran at any time during the appeal period had right leg lumbar radiculopathy that was caused or aggravated by his service-connected lumbosacral myositis.
 
Accordingly, the case is REMANDED for the following action:

1. The Veteran should be scheduled for a VA PTSD examination.  All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the psychiatrist or psychologist performing the examination for review of the case. 

Based on examination of the Veteran, any testing results, and review of the record, to include any statements or other documents referencing the Veteran's in-service stressor (the accident of June 1987), the psychiatrist or psychologist should then express an opinion as to whether such stressor (the accident of June 1987) is sufficient to have produced PTSD.

All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

2. The AOJ must make available the claims folder to the appropriate examiner for review.  1.  Based upon the evidence of record, did the appellant have right leg lumbar radiculopathy at any time?   2.  Regardless of the diagnosis, was the right leg lumbar radiculopathy caused or aggravated by lumbosacral myositis?

The examiner should address any conflicting evidence regarding a diagnosis of right leg lumbar radiculopathy in the claims file, to specifically include the evidence documented herein above.  A complete rationale must be given for all opinions and conclusions expressed with the medical bases for the conclusions set out.

3. After completion of the above development, the Veteran's claims should be readjudicated.  If the determinations remain adverse to him, he should be furnished with a Supplemental Statement of the Case.

Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs