Citation Nr: 1511612 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 08-31 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for depression, to include as secondary to lumbar degenerative disc and joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Bridgid D. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Sioux Falls, South Dakota, Department of Veterans Affairs (VA) Regional Office (RO). In December 2011, the Board reopened the Veteran's claim and remanded the underlying issue of service connection for further development. This issue was again remanded in January 2014. FINDING OF FACT The evidence does not show that the Veteran's depression was attributable to his period of military service or to a service connected disability; it was not permanently worsened by a service connected disability. CONCLUSION OF LAW The Veteran's depression is not result of disease or injury incurred in or aggravated by active military service; depression is not proximately due to or aggravated by service-connected disability. 38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.3.04, 3.310 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Board finds that the required notice was met through correspondence sent to the Veteran during the course of the claim. Next, VA has a duty to assist the Veteran in the development of the claim, which includes assisting in the procurement of service treatment records and pertinent treatment records and, when necessary, providing an examination. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's remands, VA obtained the Veteran's Social Security Administration (SSA) records and his military personnel records. Then VA provided the Veteran with a medical examination in June 2012. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, and performed a thorough clinical evaluation. This examiner, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. The March 2014 addendum also contained an opinion regarding the theory of secondary service connection, accompanied by a rationale. Therefore, this examination and addendum opinion are adequate for VA purposes. Thus VA has complied with the December 2011 and January 2014 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant 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 v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran has advanced theories of entitlement to service connection for depression on both a direct and secondary basis. These theories will be addressed in turn below. To prevail on the issue of direct service connection, there must be competent and credible evidence of a current disability, an in-service occurrence or aggravation of a disease or injury; and a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The record contains a current diagnosis of depression, including major depressive disorder and dysthymia, and posttraumatic stress disorder (PTSD). See generally, VA treatment records. Thus, the current disability requirement has been met. The Veteran's PTSD has consistently been attributed to abuse in childhood and not his military service. See e.g., March 2010 letter from VA social worker, June 2012 VA examination. As such, the remaining discussion of entitlement to service connection will focus on his diagnosis of depression. With regard to the requirement of an in-service occurrence or aggravation of a disease or injury, the Veteran's service treatment records do not show in-service complaints of, diagnosis of, or treatment for a psychiatric disability or injury. The Veteran specifically denied a history or current symptoms of depression or excessive worry on his January 1978 Report of Medical History. He also denied frequent trouble sleeping and nervous trouble of any sort. After the May 2007 denial of his claim, the Veteran reported to his treating physician's assistant, B.D., an incident during service in which his lieutenant berated him publicly for not having a sufficient "soldier type attitude." He further stated that as a result of this, he often stayed in his tent for days to avoid the lieutenant and others. There is no record of this incident, but there is a December 1977 performance evaluation in which the Veteran's platoon sergeant noted that the Veteran was "a technically proficient individual, lacking however in an aggressive and enthusiastic attitude towards duties," noting that he did not find the Veteran to be a career-oriented soldier, but rather a "single termer who is putting in his time." This rating was indorsed by the Veteran's lieutenant who also noted that the Veteran was "not a professional soldier" and had a pessimistic attitude towards the United States Army. Based on the Veteran's reports, B.D., found that depression seemingly could have been exacerbated by the stress of the military experiences of receiving a poor work record for not being soldier type material when he did have an intent for a career prior to that and the trauma of publically being berated and humiliated by a lieutenant. See June 2007 statement. Given the speculative nature of this statement, it does not provide the required degree of medical certainty necessary to be of probative value. By contrast, the March 2014 examiner found no medical nexus, noting the significant lag time between the Veteran's separation from service and the onset of his depressive symptoms, which typically would be associated with PTSD and not with other psychological problems. He also found a lack of evidence regarding the Veteran's maltreatment during service as there was no record of disciplinary action and noting that the Veteran was given an opportunity to respond to the December 1977 performance review and chose not to do so. Moreover, this examiner noted that the subsequent record did not contain sufficient reference to this incident to support a finding that it was the type of life changing event that could cause the Veteran's current depression. This claimed maltreatment by his lieutenant had not been a recurrent theme or focus in the Veteran's treatment. At the time of his March 1995 intake for alcohol treatment, the Veteran did not report this incident when questioned about problems in the military. Likewise, this was not one of the three stressors he provided his therapist in January 2004. Indeed, shortly after his June 2007 report of this incident, the Veteran began to argue that his depression was aggravated by his service connected back disability and appears to have abandoned this contention. See e.g., April 2008 statement from B.D., April 2008 letter from the Veteran's congresswoman. The Board finds the May 2014 examiner's rationale to be highly probative and the record does not contained probative medical evidence sufficient to refute it. Thus, service connection on a direct basis is not warranted. Alternately, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). The Veteran has claimed service connection for his depression as secondary to his back disability. In order to prevail on the issue of entitlement to secondary service connection, there must be (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). As noted above, the Veteran has a current diagnosis of depression and is service connected for a back disability. Thus, the first two requirements for secondary service connection have been satisfied. The remaining question is whether the record contains medical nexus evidence establishing a connection between the service-connected back disability and the current depression. In this regard, the Veteran has claimed aggravation of his nonservice-connected depression by his service connected back disability. Aggravation of a nonservice-connected disability by a service-connected disability requires that there be an increase in severity of the nonservice-connected disability beyond the normal course of the condition. 38 C.F.R. § 3.310. Under Allen v. Brown, 7 Vet. App. 439, 448 (1995), "aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. The Veteran has argued that an increase in his back pain leads to an increase in his depression. See March 2009 statement. In an April 2008 statement, the Veteran's physician's assistant B.D. found that the Veteran's depression was partially secondary to his chronic back pain, noting that his depression was exacerbated by the pain and loss of jobs. In both instances, the Veteran and B.D. discuss exacerbation of his symptoms, not the chronic, permanent worsening required for secondary service connection. In a September 2008 letter, Dr. D.W.P. stated that he believed the Veteran's his ongoing back pain was in part responsible for his level of depression. No rationale was provided and it is unclear whether Dr. D.W.P. is referring to a permanent worsening or a temporary exacerbation of symptoms. The Board affords the Veteran the benefits of the doubt and accepts this as a positive opinion that the Veteran's depression has been aggravated (chronically and permanently worsened) by his back disability. Conversely, the March 2014 examiner specifically found that it was less likely than not that the Veteran's depression was caused by or aggravated by his service connected back disability. This examiner noted that while there have been occasional, intermittent complaints by the Veteran that back pain has contributed to depressive symptoms, there was no permanent worsening of depression caused by the lumbar spine disability. Indeed, his back problems had not been associated with depressive symptoms in quite some time. Instead, this examiner found that the Veteran depression was predominantly associated with other causes including financial concerns, legal problems, his wife's health, and his childhood abuse. As the March 2014 opinion includes a detailed rationale, supported by evidence in the record, it is more probative than the unsupported September 2008 opinion. Thus, the weight of the evidence is against finding that the Veteran's depression was aggravated by his service connected back disability and so secondary service connection is not warranted. In short, for reasons expressed immediately above, the claim of service connection for a depression must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not helpful to the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for depression is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs