Citation Nr: 1336954 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 09-41 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disorder, to include depressive disorder, including as secondary to service-connected rheumatic heart disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran failed to appear for a scheduled Travel Board hearing in October 2012. In May 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901, the Board requested a medical expert opinion from the Veterans Health Administration (VHA) regarding the claim. In August 2013, the Board received the requested opinion. FINDING OF FACT A psychiatric disorder was not manifested during service or for many years after service, and was not caused or aggravated by service-connected rheumatic heart disease. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include as secondary to service-connected rheumatic heart disease, have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West. 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2012). Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in July 2008, November 2008, December 2008, and February 2009, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an August 2011 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional private/VA treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, were obtained in May 2011. 38 C.F.R. § 3.159 (c) (2). A VA examination was conducted in September 2008 and a VHA opinion was obtained in August 2013; the Veteran has not argued, and the record does not reflect, that the VHA opinion was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). The opinion was based on a review of the claim file and the rationale provided is based on objective findings and reliable principles. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Criteria Service connection may be granted 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(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). The condition must be one of those specifically indentified in 38 C.F.R. § 3.309(a) as "chronic." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to conform with Allen; however, based upon the facts in this case the regulatory change does not impact the outcome of the appeal. In determining whether service connection is warranted for a disability, VA 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Analysis The Veteran asserts entitlement to service connection for a psychiatric disorder, to include as secondary to his service-connected rheumatic heart disease. The record reflects the Veteran was diagnosed with rheumatic fever during basic training and hospitalized for approximately six months, after which he was medically discharged. Essentially, he maintains that depression had its onset during the hospitalization and/or was caused by the service-connected rheumatic heart disease. The Veteran is competent to report his symptoms. Competence and credibility are to be distinguished. The September 2008 VA examiner stated that the Veteran's reported history of onset of depression during service in 1969 is contradicted by other reports in VA medical records. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (the claimant's personal interest may affect the credibility of the evidence). The report of examination notes that VA treatment records in March 2008 and February 2009 reflect depression difficulties secondary to renewing his commercial driver's license due to uncontrolled hypertension. The examiner added that the number of inconsistencies regarding a link between service-connected rheumatic heart disease and depression weakened attempts to establish any such linkage. The examination report notes no mention of depression in the service records, and that, although the Veteran's reported symptoms were consistent with a diagnosis of major depressive disorder as reflected in the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), the veracity of the Veteran's self-report relating to the symptoms remained in question, as did the magnitude of his psychopathologic symptom disturbance. Because the diagnoses in the DSM-IV are largely based upon self-report, there was no way of determining the veracity of such diagnoses. The examiner concluded that, within reasonable neuropsychological certainty, the overall pattern of the Veteran's test results is indicative of malingering psychopathological symptom disturbance but not neurocognitive dysfunction. Consistent with the September 2008 VA opinion is the August 2013 VHA opinion noting as follows: There are no service records available to establish if patient developed depression during his hospitalization. Depression can be seen in rheumatic heart fever and in other conditions related to it such as Sydenham's chorea which presents with movement disorder and neuropsychiatric symptoms, or PANDAS(pediatric autoimmune disorder associated with streptococcal infection) which is associated with sudden onset of psychological symptoms including obsessive compulsive, attention deficit hyperactivity disorder, depression and anxiety. These conditions are seen primarily in children and are time limited with treatment. If patient did in fact have these symptoms and they persisted, there were no reports indicating such in review of medical records from both his private doctors and VA medical center. His first report of depressive symptoms was 8/8/07 when he screened +for depression as noted by [SS] LPN. The opinion provided was that it is not at least as likely as not that a psychiatric disorder, to include depression, is related to service, or is caused or aggravated by service-connected rheumatic heart disease. Although a November 2008 private examination report notes the Veteran had planned on making the military his career, had defined himself within those parameters, and was deeply depressed when he was discharged from service as a result of rheumatic fever resulting in heart valve disease, the opinion does not reflect review of the claim file and does not adequately address the relevant findings at service entrance, during service, at separation or thereafter. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). A medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. Further diminishing the probative value of the November 2008 private opinion are the findings reported in the VHA opinion, noting as follows: The following was noted based on review of medical records which contradict patient's statements of depression, anxiety since 1969. 1. On 02/10/2006, Dr. [I], patient's private physician noted "He notes he was boarded out as lowest rank of airman and had full disability. The patient really does not think that this has caused him any disability" 2. On 3/28/07 Dr. [B], M.D. noted in his review of systems that patient "denies depression, anxiety, thoughts of hurting self or others" and denial of lasting effects from military service record. 3. On 12/07/2007, patient was referred to Mental Health evaluation by the sleep clinic due to reports of depression, possible suicidal ideations and was seen by [CG]. She noted "Pt indicated that he has been feeling depressed for approximately 2 years". 4. On 12/28/2007, Dr. [WP] and Nurse Specialist [KP] noted patient has been depressed for the past year and a half. 5. On 2/08/2008, Dr. [DS] noted "Dates his depression to difficulties he had renewing his commercial driver's license due to uncontrolled HTN(hypertension), some strain with his wife due to ED(erectile dysfunction) and his worries of not pleasing her", having to sleep on a couch, and disagreements over household responsibilities. "He completed the sleep study and was given CPAP machine which he does not use since he believes the pressure is too hard and causes leaking" 6. On 3/31/2008, Dr. [GY] noted" Patient denies prior history of mental health problems prior to this episode of depression". It is the opinion of this writer that patient's reports of depression are not related to Rheumatic heart disease as patient maintains but [rather] due to the following stressors listed below. 1. Losing his CDL (commercial driver's license) due to uncontrolled hypertension leading to financial problems and marital conflicts. Patient was treated by private physicians and was noted to have problems complying with medication for blood pressure especially Lasix. On 11/09/06, Dr. [A] noted "patient is fearful he will not be able to pass his CDL license because of elevated blood pressure. On the other hand he complains that he cannot afford the increased urination, because he is working in people's backyard, with the Lasix". A note by [KP] on 12/28/07 notes "his current stressors are uncontrollable BP(blood pressure) which will cause him to possibly lose job and strained relationship with wife" 2. Sleep disturbance, morbid obesity, severe Obstructive Sleep Apnea, BPH (benign Prostatic Hypertrophy) with nocturia and compliance issues with CPAP mask were significant factors. In his note dated 3/21/08, Dr. [S]'s patient was non- compliant with sleep mask as "he believes the pressure is too hard and causes leaking". Obstructive sleep apnea can cause depression, anxiety, irritability, fatigue, daytime sleepiness, cognitive deficits, irritability, increased heart rate, decreased sex drive, unexplained weight gain, increased nocturia and worsening of heart disease such as hypertension all of which patient maintained. 3. Marital conflicts "due to ED(erectile dysfunction) and his worries of not pleasing her" (as noted in Dr. [S]'s note dated 2/8/08) having to sleep on a couch, and disagreements over household responsibilities. 4. Sister's suicide due to history ofi8 sexual abuse. Patient was referred by sleep clinic for mental health evaluation based on patients reports of depression and was seen for the first time on first time on 12/28/2007 by [KP], Nurse specialist and was started on Bupropion 100mg bid. He was seen by Dr. [DS] on 2/08/08 and Bupropion was titrated to 150mg bid. He was seen by Dr. [Y] (3/31/08) and was transferred to closer facility as requested by patient. He was seen on and off for 3 years by psychiatric Nurse Practitioner, [KW] in '08 for medication monitoring, and couples therapy. She diagnosed him with depression NOS, cluster b personality traits, and delusional disorder of jealous type due to belief his wife was cheating on him. She continued Bupropion SA 200mg bid, added Trilafon 2mg bid along with Depakote 250mg at night for mood lability. Patient was noted to lack empathy towards his wife, and was known to be manipulative with his employees pointing towards cluster b personality traits. He spent more time at home due to decreased work and wife resented his refusal to help with chores even though she was dealing with chronic pain. With ongoing treatment, patient's symptoms improved, and wife confirmed stating patient was "100% improved" as noted in [KW]'s notes, but symptoms re-emerged with lesser intensity. Dr. [JTK] a board certified clinical neuropsychologist evaluated patient on 9/08 for Compensation/Pension claim for detection of Mental Disorder. He was administered "MMPI an instrument for assessing response exaggeration related to psychopathology and or physical complaints" Dr. [K] notes "His response pattern to the validity indicators is strongly suggestive of an attempt to exaggerate mood disturbance". The examiner indicated, "in view of the strong evidence of malingering, it is impossible to differentiate stress related to changes in life circumstances and numerous medical conditions other than rheumatic heart disease. He also noted inconsistencies in patient's reports of onset of mood symptoms and those documented in the charts. "This is not to argue that the veteran is free of such disturbance or does not have a diagnosis of Major Depressive Disorder but rather that he appears to be exaggerating the extent of the emotional distress" Examiner concluded with "reasonable neuropsychological certainty that the overall pattern of test results is indicative of malingering psychopathological symptom disturbance but not neurocognitive dysfunction". After review of veteran's medical and psychiatric records it is the opinion of this writer that a psychiatric disorder to include depression is not related to his service, or is caused or aggravated by service connected rheumatic heart disease. Patient's reports of depression since 1969 contradict earlier statements he made to VA and private providers. In July 2008 correspondence, the Veteran's spouse of 33 years, stated that the Veteran has always been quiet and depressed. Against this background is the VHA opinion noting as follows. He has consistently denied depression, anxiety prior to 2004 or 2005, has been self-employed in the field he trained in as heavy equipment operator, has good relationships with his 3 daughters, stable marriage to his wife of 30+years up until '07 when he lost his CDL driving license due to uncontrolled hypertension,. Financial problems ensued, and this along with erectile dysfunction, Dx of morbid obesity, severe Obstructive Sleep Apnea, reports of noncompliance with his CPAP mask, marital conflicts were the source of stressors that precipitated his depression. Although cluster b personality traits were noted to have become more evident with forced retirement, a personality disorder was not noted at service entrance, during service, or at separation. A personality disorder is not a disease within the meaning of applicable legislation for VA compensation purposes, and in the absence of a mental disorder that is superimposed upon a personality disorder during service, service connection may not be allowed for a personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The Board finds the competent, reliable evidence establishes that a psychiatric disorder, to include depression, is not directly related to service and is not caused or aggravated by service-connected rheumatic heart disease. Rather, a psychiatric disorder had its onset many years after service and was triggered by psychosocial stressors and life circumstances, along with uncontrolled hypertension, obesity, severe obstructive sleep apnea, erectile dysfunction, and marital conflicts. In reaching a determination, the Board has accorded significant probative value to the VHA medical expert opinion. The opinion is based on review of the claim file and consistent with the September 2008 VA opinion. Such is far more reliable than the Veteran's remote lay assertions, and those of his spouse. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection for a psychiatric disorder, to include depression, is not warranted. ORDER Service connection for a psychiatric disorder, to include depression, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs