Citation Nr: 1332336	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO.  12-21 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for depression, to include as secondary to the service-connected residuals of a right wrist navicular fracture.


REPRESENTATION

Appellant represented by:	Military Order of the Purple Heart of the U.S.A.


ATTORNEY FOR THE BOARD

George R. Waddington, Associate Counsel


INTRODUCTION

The Veteran served on active duty between September 1980 and December 1981.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied secondary service connection for depression.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

The Veteran's depression was caused by the service-connected residuals of a right wrist navicular fracture.


CONCLUSION OF LAW

The criteria for entitlement to service connection on a secondary basis for depression are satisfied.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the veteran to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

II. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, sets forth VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  See 38 C.F.R. §§ 3.102, 3.159, 3.326(a).  Because the Veteran's service connection claim for his depression has been granted, any error related to the VCAA is harmless.  See id; Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).

III. Analysis

The Veteran contends that his depression was caused by his service-connected right wrist disability.  In his May 2011 Notice of Disagreement (NOD), the Veteran stated that he began feeling depressed shortly after he fractured his right wrist during military service.  He also stated that he continued to feel depressed after separation because his right wrist disability prevented him from pursuing a career in the Navy and limited the use of his right hand.

Secondary service connection may be established for a disability, which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  The United States Court of Appeals for Veterans Claims (Court) has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition."  Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury.  Id.

For secondary service connection claims submitted on or after October 10, 2006, as is the case here, VA will not find that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b).

The Board has thoroughly reviewed the record, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board has an obligation to assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, and account for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for veterans' benefits is the benefit-of-the-doubt rule set forth in 38 U.S.C.A. § 5107 (West 2002).  Under this standard, a veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the veteran prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The evidence establishes that the Veteran has ongoing depression.  Service treatment records dated in October 1981 show that the Veteran was hospitalized for suicidal ideation and was diagnosed as having depression six weeks after he fractured his wrist.  In December 2009, a VA psychiatrist diagnosed the Veteran as having a mood disorder and noted a history of attempted suicide.  Moreover, in November 2010, a VA examiner diagnosed the Veteran as having depression.  Thus, the competent evidence shows that the Veteran has current depression.

Probative evidence of record shows that the Veteran's service-connected right wrist disorder caused his depression.  Specifically, in the November 2010 VA examination report, the examiner found that the Veteran's "depression . . . is a direct result of and caused by his service-connected wrist condition."  The examiner explained that the Veteran's right wrist disability results in chronic pain and ongoing limitations of motion and that the Veteran felt "increasingly discouraged, demoralized and depressed because of . . .  [his] chronic condition."  Also, the examiner noted that the Veteran denied a history of psychiatric difficulties or treatment prior to enlisting in the Navy.  

The examiner observed that the Veteran was injured in a recent motorcycle accident and that chronic pain resulting from those injuries contributed to his depression.  However, the examiner stated that the Veteran's "increasing difficulty with depression began with his wrist condition," and affirmed his opinion that the Veteran's depression was directly caused by his right wrist disorder.

The VA examination report constitutes probative evidence that the Veteran's depression was caused by his service-connected right wrist disorder.  The report was authored by a psychiatrist who had an opportunity to examine the Veteran and review the claims file and pertinent medical history.  In addition, the VA psychiatrist's opinion is supported by an explanation grounded in the clinical findings made on examination, the evidence of record, and his expertise as a mental health professional.

Thus, the evidence is at least in equipoise as to whether the elements of secondary service connection for depression are met based on a causal relationship between the Veteran's service-connected right wrist disability and his depression.  See 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448.  Consequently, the benefit-of-the-doubt applies and secondary service connection for depression is granted.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

In granting service connection for depression, the Board does not express any opinion as to its severity for purposes of assigning a disability rating.  That determination will be made by the RO.  The question of its severity is one of rating, not of service connection.  Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress).


ORDER

Entitlement to service connection for depression, to include as secondary to the service-connected residuals of a right wrist navicular fracture is granted.

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs