Citation Nr: 1333392 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 03-34 788A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a dysthymic disorder, secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty for training from January to May 1967 and on active duty from May 1968 to June 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In June 2007, the Board denied entitlement to service connection for a dysthymic disorder, secondary to service-connected disabilities. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2010 decision, the Court vacated the Board's denial and remanded the issue for further proceedings consistent with its Memorandum Decision. In September 2010, December 2012, and April 2013, the Board remanded the claim for further development. The case is now again before the Board for adjudication. A review of Virtual VA reveals that it contains VA treatment records relevant to the issue on appeal. Further, this appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of the appellant's case should be applied to this electronic record. As noted in the prior remands, the record raises the issue of entitlement to special monthly compensation for the loss of use of a creative organ. This issue, however, has not yet been developed or certified for appellate review. Accordingly, the matter is again referred to the agency of original jurisdiction for appropriate and immediate consideration. FINDING OF FACT The preponderance of the competent evidence of record is against finding that the Veteran has a psychiatric disorder, to include a dysthymic disorder, which is related to active duty service or is caused or aggravated by a service-connected disability. CONCLUSION OF LAW An acquired psychiatric disorder, to include a dysthymic disorder, was not incurred in or aggravated by service, nor was it caused or aggravated by a service-connected disorder, and a psychosis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act In the case at hand, 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 appellant in correspondence dated in March 2004 and September 2007 of the information and evidence needed to substantiate and complete the 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 evaluations and effective dates are assigned. The case was most recently readjudicated in August 2013. VA fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. As noted, in September 2010, December 2012, and April 2013 the claim was remanded for additional development. The Appeals Management Center contacted the Veteran requesting information regarding any additional psychiatric treatment not currently of record, and in September 2010 the Veteran was afforded a VA psychiatric examination. The report of that examination, two addendum opinion reports, and pertinent medical treatment records have been associated with the electronic claims file. The Board finds that all necessary evidence has been acquired, there has been substantial compliance with the remand directives, fulfilling the duty to assist, and the case is now ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Relevant Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of active duty, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309, 3.384 (2013). A disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. With respect to aggravation, the baseline level of disability pre-aggravation must be compared to the current level of disability. 38 C.F.R. § 3.310(b). The Veteran may be compensated only for the degree of disability over and above the baseline plus natural progression. Id.; Allen, 7 Vet. App. at 448. In other words, there must be a permanent worsening beyond natural progression rather than temporary or intermittent flare-ups. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). The benefit of the doubt rule provides that an appellant will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the appellant prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran contends that he has a current psychiatric disorder, generally characterized as depression or dysthymic disorder, that either is related to his active duty service or is secondary to or aggravated by his service-connected disabilities. He is currently service-connected for coronary artery and hypertensive heart disease (60 percent disabling); diabetes mellitus (20 percent disabling); peripheral neuropathy of each upper and lower extremity (each 20 percent disabling); a lumbosacral strain with degenerative joint disease (20 percent disabling); hypertension (10 percent disabling); and for diabetic retinopathy, erectile dysfunction, and cataracts, each evaluated as noncompensably disabling. His combined rating is 90 percent. He was awarded a total disability rating based on individual unemployability, effective February 22, 2012. The Veteran has submitted written statements in which he describes that he first began having trouble sleeping while he was serving in Vietnam. He stated that he first began having psychiatric problems in 1993. He has described these problems as including depression, anxiety, and sleep problems. He wrote that his other health problems affected his ability to perform his job at the Post Office, that he was eventually pressured into retiring due to medical reasons, and that since this time his mental problems have become worse. He also stated that suffering from chronic pain cases him to be irritable and sometimes angry. The Veteran's service treatment records reveal no complaints, findings, or diagnoses pertaining to a psychiatric disorder. The Veteran was judged to be oriented and cooperative at his first VA examination in November 1967. A July 1993 sleep evaluation notes that the Veteran had undergone psychotherapy for a stress-related condition. An October 1993 private medical examination notes a diagnosis of symptomatically reported fatigue and malaise with elements of situational depression. He was noted to be having difficulty coping with stress associated with his employment with the United States Post Office. A December 1993 statement from the Veteran's physician indicated that he had probable reactive depression. The Veteran was also diagnosed with chronic fatigue and fibromyalgia. The report of an April 2000 private psychiatric evaluation shows a diagnosis of depression and chronic pain syndrome. Counseling sessions from April to October 2000 include reports of feeling depression and anxiety. The Veteran's VA treatment records show that he has regularly complained of depression since at least January 2002, and throughout 2002 attended psychotherapy and group therapy sessions to address depression and coping with chronic pain. In April 2002, the Veteran was diagnosed with a pain disorder associated with general medical and psychological factors. A May 2002 VA outpatient treatment record includes a diagnosis of depression. In various treatment records from 2002 to 2004, depression was noted, but the Veteran declined psychiatric treatment. In December 2002, the Veteran reported having had shortness of breath for three to four weeks, which he attributed to anxiety. In November 2003 and March 2004, he reported feeling severely depressed due to the recent death of his mother. The Veteran continued to report feelings of depression from 2004 to 2012 at his primary care evaluations. At no time did he show any suicidal ideation. An August 2004 primary care note indicated that the Veteran's depression could also have a large anxiety component and that the appellant stated he had started taking anti-depressant medication. In January 2013, the Veteran became seriously ill with meningitis, heart trouble, and chronic obstructive pulmonary disease. He presented as depressed, anxious, or restless, but later in the month, following substantial recovery, he was noted to have "no depression." The Veteran's private general practitioner treatment records also note reports of depression during his treatment for other medical conditions, such as arthritis and fibromyalgia, including in July 2003, April 2004, October 2006, and March 2009. In August 2003, the physician noted that the Veteran had low motivation and low mood due to constant pain. Starting in April 2007, the physician also began noting that the Veteran had possible posttraumatic stress disorder. In July 2007, he noted the Veteran had "poor functioning" and would consider an evaluation for depression and anxiety. At no point in any of the Veteran's private or VA treatment records does a medical professional offer a medical opinion indicating that the appellant's psychiatric disorder is related to his military service or that it is caused or aggravated by his service-connected disabilities. Rather, it is frequently noted that the Veteran's psychiatric disorder is connected to his chronic pain disorder/fibromyalgia. The Veteran was afforded a VA mental disorders examination in April 2004. The Veteran was diagnosed with depressed mood, secondary to multiple medical difficulties, and a pain disorder with very strong psychological aspects. Because the April 2004 VA examiner did not appear to have access to the Veteran's entire claims file and complete medical records, an addendum to the April 2004 VA psychiatric examination report was provided by a psychologist via an email communication in August 2004. After reviewing the medical record, to include the report of the April 2004 VA examination, she opined that the Veteran suffered from symptoms of chronic depression that were best characterized as a dysthymic disorder rather than an adjustment disorder with depressed mood. She also noted that the Veteran had a diagnosis of a pain disorder with significant psychological factors which exacerbated his perception of the severity of the pain and associated disability. She additionally opined that the Veteran's depression was secondary to his chronic pain disorder and thus to his nonservice-connected conditions, as opposed to his service-connected conditions. The Veteran was afforded an additional VA examination to address the etiology of his psychiatric disorder in September 2010. The examiner reviewed the claims file and discussed the Veteran's medical history. Following examination, the psychologist diagnosed the Veteran with a dysthymic disorder, unrelated to military service and not secondary to service-connected disorders. She described the Veteran's dysthymic disorder as mild in nature. The examiner noted that the Veteran did not receive any psychiatric treatment while on active duty or within the first year after military discharge. The psychologist concluded that there was no direct physiological causal relationship between the Veteran's service-connected medical conditions and depression, and that there was no medical, psychiatric, or research literature which supported the contention that his service-connected medical conditions caused depression. She further stated that none of the medical conditions for which the Veteran is service connected had any direct physiological relationship with a mood disorder. Because the September 2010 examiner failed to adequately address whether the Veteran's psychiatric disorder had been permanently aggravated by any individual, or a combination of some or all, of his service-connected disabilities, VA obtained two additional VA medical opinions. In January 2013, the September 2010 VA examiner provided a supplemental report addressing the issue. She opined that the current severity of the Veteran's psychiatric disability was not greater than the baseline level. In other words, the examiner found that the appellant's psychiatric disability was not aggravated by his service connected disorders. The rationale provided was that the baseline level was mild as the Veteran held steady employment from 1972 to 1992 until he retired due to physical problems. Since then, he reported only sporadic, limited outpatient psychiatric treatment over the years "with no involvement in psychiatric treatment since 2007, again consistent with mild severity." VA then requested an additional addendum opinion in order to specifically address the Veteran's private medical treatment records, which noted continued problems with depression and possible posttraumatic stress disorder. A June 2013 supplemental report provided by the September 2010 VA examiner stated that she had reviewed the complete medical records, including the Veteran's private medical records and the records pertaining to his January 2013 VA hospitalization. She stated that there was no evidence to suggest that the Veteran's dysthymic disorder was aggravated by any individual service-connected disorder or the combined impact of all service-connected disorders. She noted that the Veteran was not then prescribed an antidepressant medication and while he had reported feeling depression to his primary care providers, there was no evidence of psychiatric treatment since 2007, and therefore no indication of progression in severity of symptoms beyond the initial mild baseline. She noted that there was no psychiatric evaluation or treatment for any mental disorder when the Veteran was hospitalized in January 2013, nor was he prescribed any psychotropic medication. She concluded that there was "no evidence in any medical progress notes to indicate presence of dysthymic disorder symptoms beyond mild, which is [V]eteran's baseline severity of dysthymic disorder symptoms." Analysis Following review of the complete evidentiary record, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include a dysthymic disorder, either as incurred in or related to service or as secondary to service-connected disabilities, is not warranted. There is currently no competent medical evidence which indicates that the Veteran's current psychiatric disorder was caused by or otherwise related to his active duty service. There is no competent medical evidence that an acquired psychiatric disorder was caused or aggravated by his service-connected disabilities. The most probative evidence of record are the examination report and supplemental statements of the September 2010 examiner. These reports were written by a qualified clinical psychologist following an in-person examination of the Veteran and a thorough review of his medical records and the claims file. Hence, the Board finds these opinions, taken together, to be highly persuasive evidence on the current issue on appeal. The examiner diagnosed the Veteran with dysthymic disorder and found that it was unrelated to his military service or his service-connected disabilities. This is consistent with the vast majority of the appellant's prior mental health complaints and previous diagnoses for either depression or dysthymic disorder, including his private medical treatment which frequently indicated that the Veteran's depression is related to his chronic pain disorder/fibromyalgia, a disorder for which the Veteran is not service connected. In her June 2013 supplemental opinion, the examining VA psychologist clearly demonstrated that she had fully reviewed the Veteran's complete claims file and medical records, and found that it contained no evidence indicating any aggravation of his dysthymic disorder by service-connected disabilities. The psychologist ultimately opined that there was no indication of aggravation of the Veteran's dysthymic disorder, including by service-connected disabilities, and this disorder was not caused by or otherwise related to active duty service or a service-connected disability. Without competent and probative evidence indicating that the appellant's dysthymic disorder was caused by or otherwise related to an injury during service or was caused by or aggravated by a service-connected disability, service connection is not warranted. None of the Veteran's medical treatment providers have indicated that his psychiatric diagnoses other than PTSD were caused by or otherwise etiologically related to his military service. While the Veteran's private physician indicated that the Veteran could have PTSD, this was not based on an actual psychological evaluation or a review of any of the Veteran's service or psychiatric history. Nor has the Veteran himself asserted at any time that he has PTSD or is seeking service-connection for PTSD. Thus, the overwhelming preponderance of the medical evidence is against finding that the appellant has a psychiatric disorder that is connected to service. No medical treatment provider has indicated at any time that any psychiatric diagnosis is related specifically to a service-connected disability. The appellant, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board acknowledges that the appellant is competent to make statements regarding his symptoms related to dysthymic disorder and the challenging impact they have had on his life. A probative medical opinion on the etiology or underlying causes of a psychiatric disorder requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the appellant is not competent to render a persuasive or competent medical opinion on whether his currently diagnosed psychiatric disorder was caused by or otherwise related to his military service or whether it was caused or aggravated by other medical conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hence, his assertions in this regard do not constitute competent and persuasive evidence in support of the claim for service connection. The Board further notes that the Veteran has not been diagnosed with a "psychosis," nor is there any evidence that he had a compensably disabling psychosis within one year of his discharge from active duty service. Therefore service connection on a presumptive basis as a chronic disease is also not warranted. See 38 C.F.R. §§ 3.307, 3.309, 3.384. In short, there is no competent and probative evidence indicating that an acquired psychiatric disorder, to include dysthymic disorder, was incurred in or related to service, or that it was caused or aggravated in severity by his service-connected disabilities. Accordingly, the preponderance of the evidence is against the claim for service connection. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include a dysthymic disorder, secondary to service-connected disabilities, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs