Citation Nr: 1337633 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-25 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include an adjustment disorder with depression and anxiety as secondary to a service-connected hemorrhoid disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville Kentucky. The Veteran requested that he be afforded a video conference hearing in conjunction with his appeal. He was scheduled for a hearing in September 2009 with notice of the hearing provided in August 2009. The Veteran failed to report for his hearing. He has not provided good cause for his failure to report and has not requested that his hearing be rescheduled. 38 C F R § 20 704 (d) (2013). In February 2011and March 2013, the Board remanded the issue for further development. (This appeal was processed using a VA paperless claims processing system.) FINDING OF FACT During the claim period, the Veteran had an acute adjustment disorder with depressed mood and anxiety as a result of his service-connected hemorrhoid disability. CONCLUSION OF LAW The criteria for the award of service connection for an acute adjustment disorder with depression and anxiety as secondary to a service-connected hemorrhoid disorder have been met. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (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) medical 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of the Veteran's claim. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310 (2013)). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's 1995 ruling in Allen, it was made clear in the comments to the regulation that the 2006 changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the revision amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the revision, which version favors the claimant. 38 C.F.R. § 3.310 (2006). The Veteran's claim for service connection has been denied largely on the basis that he does not now have a psychiatric disability. Nevertheless, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the filing of the claim for service connection, even if the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319 (2007). Consequently, the Court's ruling allows for the award of acute and transitory diseases or disorders so long as they were shown at some point during the claim period. The Veteran's claim for a psychiatric disability was received in July 2005. VA treatment records reveal that in March 2006, the Veteran had complaints of stress and was prescribed Lorazepam for anxiety or agitation. A June 2006 record included an assessment of anxiety and depression. Subsequent records showed follow-up treatment for anxiety and reflected that the Veteran was prescribed Lorazepam at least through July 2009 for anxiety or agitation. Treatment records as recently as December 2012 noted complaints of anxiety. March 2011 and May 2013 VA examiners acknowledged the Veteran's psychiatric treatment and found that he had had an adjustment disorder with depressed mood; however, they found that the psychiatric disorder resolved and there was no current psychiatric disability. Although the March 2011 and May 2013 VA examiners provided an opinion that there was no psychiatric disability on current examination, the record shows that there was a diagnosis of anxiety, depression, and adjustment disorder with depressed mood since the Veteran's claim. This evidence weighs in favor of a finding that he has had a current disability since the time of his claim. Accordingly, a "current" disability is demonstrated. McClain, supra. The Veteran does not contend and the objective evidence does not suggest that a psychiatric disorder began during service or within the first service year, or was otherwise directly related to service. Rather, the Veteran contends that his psychiatric disorder is related to his service-connected hemorrhoids. Therefore, the remaining question is whether the Veteran's diagnosed psychiatric disorder is related to his service-connected hemorrhoids. The Veteran underwent a colonoscopy at a VA medical center (VAMC) in April 2005, which revealed small diverticula in the sigmoid colon and descending colon as well as hemorrhoids. He developed some complications from the procedure and in May 2005, he was assessed with anorectal fistula and was draining pus and blood. In May 2005, he underwent an emergency proctoscopy due to intermittent abscess formation most likely fistulous abscess and reported a recent bursting of fluid collection. A February 2006 record noted that the Veteran underwent a hemorrhoidectomy and fistualectomy by a private doctor. An April 2006 entry noted a telephone conversation with the Veteran's wife regarding his change in moods, described as the Veteran being down and depressed. The spouse reported that the Veteran had been through a lot lately, noting he underwent hemorrhoidectomy and fistula removal in late January followed by urinary retention problems and needing to have skin lesions removed. An entry from June 2006 noted that the Veteran had anxiety and depression since his surgery. The Veteran was seen by a social worker in August and September 2006 where he expressed being angry and upset over what had happened to him (colonoscopy). The assessment included, in part, anger and depression over his surgical procedures. On March 2011 VA examination, the examiner noted that the Veteran had mild depressive symptoms in 2006 that were consistent with an adjustment disorder. The examiner found that the Veteran had a brief adjustment disorder that had resolved and that this disorder was secondary to anorectal surgery for an anorectal fistula. On May 2013 VA examination, the VA examiner reported that the Veteran was diagnosed in the past with an adjustment disorder with depressed mood (and he was prescribed Lorazepam) following the colonoscopy and resulting problems with this procedure/condition. The examiner added that while in the past the Veteran had significant depressive and anxiety symptoms surrounding the colonoscopy and hemorrhoids, he no longer had depression or anxiety specific to these problems, or related to the other service-connected conditions involving arthritis or finger injury. The examiner opined that the Veteran's depression and anxiety, diagnosed as an adjustment disorder with depressed mood, was at least as likely as not proximately due to his colonoscopy and resulting hemorrhoids at that time in 2005-2006. After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for or an acute adjustment disorder with depression and anxiety as secondary to the service-connected hemorrhoid disorder have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 53-56. (Although service connection was not in effect for hemorrhoids until October 2008, the Board notes that the Veteran continued to receive treatment for mood symptoms at least until June 2009. Consequently, it may be concluded that his service-connected hemorrhoids played a causative role in the acute adjustment disorder, just as the 2013 VA examiner described. 38 C.F.R. § 3.310.) ORDER Entitlement to service connection for an acute adjustment disorder with depression and anxiety as secondary to service-connected hemorrhoid disorder is granted ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs