Citation Nr: 1342076 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-36 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for adjustment disorder with depressed mood and anxiety, to include as secondary to pain and limitations associated with service-connected disabilities (hereinafter referred to simply as "adjustment disorder"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Megan Marzec, Associate Counsel INTRODUCTION The Veteran had active military service from September 1962 until August 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD). This case was previously before the Board in July 2011, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. Pursuant to the development as a result of the July 2011 remand, the issue on appeal has been recharacterized as entitlement to service connection for adjustment disorder with depressed mood and anxiety, to include as secondary to pain and limitations associated with the Veteran's service-connected disabilities, so as to encompass the Veteran's current psychiatric diagnosis for which the Veteran may be entitled to receive VA compensation. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran's representative argues in the informal hearing presentation that the Veteran should be afforded an earlier effective date for his total disability rating based upon individual unemployability (TDIU) due to his service-connected disabilities. The Board does not have jurisdiction over this claim. The Veteran was granted TDIU in a June 2012 rating decision. The first notice of disagreement was the Veteran's November 2013 informal hearing presentation. The notice of disagreement is untimely and thus the Board does not have jurisdiction over the Veteran's claim for an earlier effective date for TDIU. Further, 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. FINDING OF FACT The Veteran's currently diagnosed adjustment disorder is the result of his medical issues, to include his service-connected bilateral hearing loss and ischemic heart disease. CONCLUSION OF LAW Adjustment disorder was proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As will be further discussed below, the Veteran's claim of entitlement to service connection for adjustment disorder is being granted in full. Therefore, the Board finds that any error related to VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) (Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013))) with regard to this claim is rendered moot by this fully favorable decision. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159 (2013); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, there is no need to engage in any analysis with respect to whether the requirements of the VCAA and the VA's duties to notify and assist have been satisfied concerning this appeal. Legal Criteria 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. § 1110; 38 C.F.R. § 3.303. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310(a) (2006). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 39 C.F.R. § 3.310(b) (2006); Allen v. Brown, 8 Vet. App. 374 (1995). During the pendency of this claim 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of this regulation. In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Analysis A review of the medical evidence of record shows that the Veteran has a current diagnosis of adjustment disorder. Thus, the first element of Wallin is met. Additionally, a review of the claims file indicates that the Veteran is service connected for bilateral hearing loss with an initial evaluation of 10 percent disabling from July 9, 2001, and an increased evaluation of 50 percent disabling from February 15, 2005, and ischemic heart disease with an initial evaluation of 60 percent disabling from August 31, 2010. The Veteran has also been awarded TDIU for these disabilities. Thus, the second element of Wallin is met. The remaining question is whether a medical nexus exists between the Veteran's current adjustment disorder and his service-connected disabilities. In April 2012, the Veteran was afforded a VA examination to address an alleged psychiatric disability. The VA examiner concluded that the Veteran's symptoms were most consistent with adjustment disorder with depressed mood and anxiety. The examiner noted that the onset of the Veteran's symptoms appeared related to his medical problems and related pain and limitations that became a source of frustration and aggravation. The examiner noted that the Veteran did not require or seek mental health treatment until his multiple medical issues became more stressful and disruptive in his life. The examiner reviewed the Veteran's claims file; thus, the Board concludes that the examiner was aware of the Veteran's service-connected disabilities. Therefore, the Board concludes that the Veteran's adjustment disorder was the result of his medical issues including his service-connected bilateral hearing loss and ischemic heart disease. Accordingly, the Board finds that the third element of Wallin has been met. As such, his claim for secondary service connection for adjustment disorder is granted. ORDER Entitlement to service connection for adjustment disorder with depressed mood and anxiety is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs