Citation Nr: 1507373 Decision Date: 02/19/15 Archive Date: 02/26/15 DOCKET NO. 09-00 330A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, C.H., and J.H. ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1986 to August 1992. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from July 2006 and April 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In September 2013 the Board granted service connection for PTSD and denied service connection for an acquired psychiatric disorder other than PTSD. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In March 2014 the Court vacated the Board's decision denying service connection for an acquired psychiatric disability other than PTSD and remanded the Veteran's claim for action consistent with the directives of a joint motion for remand (JMR). In August 2014, the Board remanded the claim for further development in accordance with the Court's remand. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record and has been reviewed. In June 2014 the Veteran filed an application for vocational rehabilitation. As the issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran's PTSD did not cause or aggravated his diagnosed depressive disorder or anxiety disorder. 2. The Veteran's depression and anxiety are symptoms contemplated by his already assigned PTSD rating, and his diagnosed depressive disorder and anxiety disorder do not otherwise involve any symptoms distinct from his service-connected PTSD. CONCLUSION OF LAW The criteria have not been met for assigning a separate rating for depressive disorder or anxiety disorder. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310, 4.14 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends he is entitled to service connection for depression disorder and anxiety disorder as separate from his already service-connected PTSD. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2014). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2014). Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310 (2014). The Veteran had a VA examination in September 2007. The examination report reflects that the Veteran reported depression and transient suicidal ideation and complained of getting irritated and feeling uncomfortable around people. The VA examiner diagnosed depressive disorder. A VA mental health note dated in October 2008 noted a positive score on PTSD and depression screens related to Gulf War-Desert Storm service. A VA psychiatrist diagnosed chronic PTSD, single episode major depressive disorder, and dysthymia secondary to chronic anxiety and pain. VA mental health treatment notes stated in December 2008, June 2009, August 2010, and April 2011 also reflect diagnoses of major depressive disorder and chronic PTSD, service-related. The Veteran had a VA examination in January 2011. The VA examiner concluded that the criteria for a diagnosis of PTSD did not appear to be met, based upon the Veteran's self-report on the clinician-administered PTSD scale for DSM-IV. The VA examiner diagnosed depressive disorder, not otherwise specified and anxiety disorder, not otherwise specified. The VA examiner opined that the onset of the Veteran's anxiety was reportedly three years prior, and it did not appear to be a direct result of his military experiences. The VA examiner indicated that the Veteran's depressive symptoms first appeared in 1995, approximately four years after his reported traumatic experiences. The VA examiner noted that the Veteran did not equate his depressive symptoms (or his anxiety-based symptoms) to his military experiences. The VA examiner opined that it seems unlikely that his depressive disorder, not otherwise specified is a direct result of his military experiences. The September 2007 VA examination noted a diagnosis of depressive disorder, and the January 2011 VA examiner diagnosed the Veteran with depressive disorder and anxiety disorder. The January 2011 VA examiner opined that these disorders are not related to service. There is no other medical evidence of record linking any acquired psychiatric disorder, other than PTSD, to service. Because no competent evidence relates these disorders to active service, a grant of service connection on a direct basis for these disorders is not warranted. See 38 C.F.R. § 3.303. However, the Veteran has argued that his depressive disorder and anxiety disorder are secondary to his PTSD. The Veteran is currently service connected for PTSD with an evaluation of 30 percent. A 30 percent rating under the General Rating Formula for Mental Disorders is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. In the September 2013 rating decision awarding a 30 percent rating for PTSD, the RO stated that the evaluation was based in part on the Veteran's anxiety and depressed mood. Thus, the Veteran's disability compensation for PTSD expressly contemplates anxiety and depression as a symptoms. 38 C.F.R. § 4.130, Diagnostic Code 9411. Consequently, the currently claimed anxiety disorder and depressive disorder must consist of distinct symptoms that are wholly separate from PTSD to be separately service connected. See id.; 38 C.F.R. § 4.14 (pyramiding is rating the same manifestation of a disability, under different Diagnostic Codes, which is to be avoided). The Board finds that the evidence does not show that either condition consists of distinct symptoms separate from the Veteran's PTSD. Both depression and anxiety are specifically considered among the Veteran's PTSD symptoms. Thus, separate ratings for PTSD, anxiety disorder, and depressive disorder would constitute impermissible pyramiding. Further, even if it were found that the Veteran's anxiety disorder or depressive disorder consisted of distinct symptoms separate from the Veteran's PTSD, the Board finds that the evidence does not support that the Veteran's PTSD caused or aggravated either condition. A VA opinion was obtained in October 2014 as to whether the Veteran's diagnosed depressive disorder and anxiety disorder are secondary to his PTSD. The VA psychologist offering the opinion reviewed the Veteran's claims file and concluded that the disorders were less likely than not caused or aggravated by the Veteran's PTSD. To the extent that the Veteran himself has contended that the disorders are separate from his PTSD and caused or aggravated by his PTSD, the Board finds his lay opinion is entitled to little probative weight. The etiology of such psychiatric conditions is a complex question and the Veteran does not have the education, training, or experience to offer such an etiology opinion as to his own mental status. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Therefore, the Board finds that a preponderance of the evidence is against granting a separate rating for a psychiatric condition separate from the Veteran's service-connected PTSD. As such, the benefit of the doubt doctrine does not apply, and the claim must be denied. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in September 2007, prior to the initial adjudication of the claim on appeal. The Board finds that the content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination for PTSD in January 2011 and a VA medical opinion as to secondary service connection for depressive disorder and anxiety disorder was obtained in October 2014. The Board finds that the examinations were adequate and contain sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183 (2002). ORDER Service connection for an acquired psychiatric disorder, to include as secondary to PTSD, is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs