Citation Nr: 1410941 Decision Date: 03/14/14 Archive Date: 03/20/14 DOCKET NO. 09-28 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from to February 1970 to November 1971. He also had subsequent service in the Army National Guard of Tennessee. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which, in part, denied the Veteran's claim for service connection for anxiety/depression. In August 2010, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. In March 2011, the Board deferred consideration of the claim in a remand for further development regarding service connection for a back disability. As part of the remand, the Board directed the RO to obtain the Veteran's personnel records, to afford him a VA examination in connection with his back claim and then, after considering the new evidence, to readjudicate the claim for service connection for a psychiatric disorder. The Board finds that the remand directives have been completed and, therefore, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). In addition to a paper claims file, there is a Virtual VA electronic file. The Board has reviewed both files prior to reaching this decision. FINDINGS OF FACT 1. Service connection for degenerative disc disease (DDD) of the lumbar spine was granted in April 2012. 2. The Veteran has a diagnosis of Anxiety Disorder NOS. 3. There is no medical evidence of record indicating treatment for or a diagnosis of depression. 4. Anxiety Disorder NOS did not have its onset during active service and has not been shown to be etiologically related to and/or aggravated by the Veteran's service-connected DDD of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in a July 2009 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection, including what he needed to provide and what would be obtained by VA. In December 2009, prior to a March 2010 statement of the case, the RO provided notice specifically addressing the requirements for satisfying a claim for service connection on a secondary basis. VA also obtained relevant records, to include the Veteran's service treatment records and military personnel records. The Board acknowledges the Veteran's reference at his hearing to private treatment records indicating he was prescribed medication for anxiety in 2010. The Board finds that although such records were not obtained, they only refer to diagnosis and treatment for anxiety, which is conceded in this decision. The absence of such records will not prejudice the Veteran and the presence of the records in the file would not make it any more likely that the criteria for service connection would be met. The Veteran has not indicated that there are any other records outstanding. See February 2014 Appellant's Post-Remand Brief. The VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. In July 2012, a VA examiner reviewed the Veteran's claims file and considered the Veteran's subjective complaints. The examiner noted that no treatment records beyond 2010 appeared in the claims file. As mentioned, the Board finds that this fact did not prejudice the Veteran. The examiner was aware that the Veteran sought therapy for his anxiety and was prescribed medication. In his report, the VA examiner provided the opinion that the Veteran was not suffering from depression and that his anxiety had no relationship to any of his health concerns, to include his service-connected DDD. The Board recognizes that the examiner did not address what other factors could have caused the Veteran's anxiety and did not provide a specific opinion as to whether the DDD aggravated his anxiety; however, the Board finds the evidence of record is sufficient to decide the claim without prejudice to the Veteran and that a remand for an addendum opinion would not be productive or beneficial. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The Veteran was provided the opportunity to meaningfully participate in the development of his claim. He did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Based on the foregoing, the Board concludes that no further assistance to the Veteran with the development of the evidence is required. II. Entitlement to Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted or an injury suffered in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 7 1 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. In short, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. However, "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. See also Savage v. Gober, 10 Vet. App. 488, 498 (1997). The Veteran contends that the psychiatric symptoms he experiences today are secondary to his service-connected back disability. In his February 2009 Notice of Disagreement, the Veteran stated: As a direct result of the trauma sustained in my back during [active duty for training], I underwent several pronounced lifestyle changes. Walking became an increasingly difficult exercise to the point where I literally avoid it, when I can. Most activities, such as softball and the like are no longer possible . . . Certainly, this has proven a major contributor to my depression. It is emotionally draining to literally watch life go by from the sidelines. Small joys, like playing with my grandkids in the park was [sic] not possible. This is a constant drain on my self-esteem and major source of my depression. The Veteran's service treatment records do not include any complaints of or treatment for anxiety or depression and the Veteran does not contend that he experienced mental health concerns during service. At his hearing before the Board, the Veteran indicated that he initially sought treatment for anxiety and was prescribed medication by his private doctor in 2010, nearly 40 years after separation from active duty and nearly 30 years after the injury to his back sustained during active duty for training in 1981. There is no evidence of record that the Veteran ever sought treatment for or was diagnosed with depression. In July 2012, the Veteran was afforded a VA examination. The VA examiner reviewed the claims file. He diagnosed Anxiety Disorder, NOS, including fear of flying and driving-related activity. The examiner considered the Veteran's pre-military, military and post-military history. The examiner noted anxiety, panic attacks that occur weekly or less often when driving or flying, chronic sleep impairment, mild memory loss and difficulty in adapting to stressful circumstances. The Veteran reported his mood was fairly good, "unless he is around groups of people." He stated this began a year previously and he could not attend concerts or football games. He denied feeling "depressed, per se; especially enjoys having his grandchildren around." The examiner noted that the Veteran's greatest concern was his "increasing difficulty controlling his temper." The Veteran also indicated that for the past five years he had trouble driving and that three years prior he was prescribed medication and met with a therapist for several sessions. The Veteran stated he had "never had a fear of the road, per se, but hate 'people pushing me'." He also indicated a fear of flying and of heights. After reviewing the evidence and the Veteran's subjective complaints, the examiner opined: "It is less likely as not that the veteran's anxiety disorder is due to health concerns or anything related to service." The examiner stated: Onset of anxiety symptoms affecting driving started about five years ago and onset of his fear of flying has been about 10 years. He avoids flying to some degree, but is able to fly with lorazepam. His driving issues seem to have a more significant effect on his day-to-day life, as he avoids freeways. His anxiety on the road also makes his road rage worse. The Veteran denies having a significant depression at this time. Although the examiner did not provide an opinion as to what may have caused the Veteran's anxiety, the evidence of record gives no indication that any health problems, to include those that are service-related, caused the Veteran's symptoms. Notably, the majority of the Veteran's lay arguments in support of his claim center on the belief that his service-connected back disability has led to depression. However, the only evidence supporting the contention that the Veteran suffers from depression are his own statements outside of the context of a medical examination. Although claimants may be competent to provide the diagnoses of simple conditions, such as a broken leg, they are not competent to provide evidence on more complex medical questions. See Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). While the appellant is competent to say that he has been treated for psychiatric problems, he does not have the expertise to diagnose himself with depression or to state that there is an etiologic relationship between a service-connected disability and any current psychiatric disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed Cir. 2009). The Board recognizes that the language of 38 C.F.R. § 3.310 requires consideration of whether the service-connected disability has aggravated the claimed disability, even if the service-connected disability did not cause the claimed disability. However, in this case, there is no competent evidence of record to suggest that the Veteran's anxiety is in any way at all related to his DDD. While it is apparent that the Veteran suffers pain from his DDD and that he suffers anxiety, the evidence of record as a whole does not support the proposition that there is any etiological relationship between the origin and/or severity of the Veteran's anxiety and service. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs