Citation Nr: 1756629 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-13 228 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability. 2. Entitlement to service connection for a disability manifested by chest pain, to include sarcoidosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from August 1974 to January 1980. This matter is before the Board of Veterans' Appeals (Board) following a Board Remands in March 2016 and June 2017. This matter was originally on appeal from rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in New York, New York. In August 2014, the Veteran testified at a Travel Board hearing. A transcript of that hearing is of record. An RO hearing was also held and a transcript is on file. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and Veterans Benefits Management System (VBMS). The Board notes that the RO has separately certified the issues of entitlement to service connection sarcoidosis and entitlement to service connection for a disability manifested by chest pain. In September 2008, the Veteran stated that his chest pain condition on appeal should be listed as sarcoidosis. Although the Veteran's sarcoidosis throughout the appeal period has been manifested by shortness of breath, the Veteran testified that he was evaluated by VA for symptoms of a throbbing sensation and difficulties breathing which resulted in a diagnosis of sarcoidosis. Thus, the Board will combine the issues as entitlement to service connection for a disability manifested by chest pain, to include sarcoidosis. The issue of entitlement to service connection for a disability manifested by chest pain, to include sarcoidosis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A chronic psychiatric disability was not manifested during service and is not shown to be related to active service or to service-connected disability. CONCLUSION OF LAW The Veteran's major depressive disorder was not incurred in or aggravated by service and is not causally related to service-connected disability. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters Pursuant to the Board's March 2016 and June 2017 Remands, the Appeals Management Center (AMC) afforded the Veteran a VA examination with a psychologist who provided an etiology opinion for the Veterans depressive disorder, readjudicated the claim, and issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's March 2016 and June 2017 Remands. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in September 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. Moreover, during the August 2014 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Service Connection Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). The first question that must be addressed, therefore, is whether a chronic psychiatric disorder is factually shown during service. The Board concludes it was not. The Veteran's service treatment records indicate that on the Report of Medical History completed by the Veteran in December 1979 for separation from active service, he reported depression or excessive worry. The examiner noted in the section for physician's summary and elaboration that the Veteran's weight gain of 50 pounds in 40 days was thought to be somewhat secondary to excessive worry. The Veteran denied history of psychosis, and on the Report of Medical Examination, the Veteran's psychiatric health was evaluated as normal, and the examiner noted, "no psychosis." Despite the excessive worry reported by the Veteran in December 1979, the Board cannot conclude a "chronic" psychiatric condition was incurred during service. That an injury or illness occurred in service alone is not enough; there must be chronic disability resulting from that injury or illness. For a showing of chronic disability in service there is required a combination of manifestations sufficient to identify the disorder, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Thus, there is no medical evidence that shows that the Veteran demonstrated findings of a chronic psychiatric disorder during service. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). 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 pursuant to 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In this case, the Veteran clearly has a current psychiatric disability. The Veteran has been diagnosed as having major depression and major depressive disorder. The remaining question, therefore, is whether there is medical evidence of a relationship between the current disability and military service. In September 2013, a VA opinion with regard to diagnosis and etiology of a psychiatric disorder was provided. The examiner stated, Based on current exam vet does not currently meet criteria for a mental disorder according to DSM-IV criteria and specifically does not meet criteria for depression secondary to SC-brain syndrome (10% SC, post-traumatic headaches and scars). Vet denies significant symptoms of depression related to residuals of brain syndrome attributed to MVA during service in 1977. He denies chronic depressed mood, loss of interest in activities, appetite disturbance, loss of energy or fatigue, worthlessness, problems with concentration, or suicidal ideation. He denies social or occupational impairment related to this condition and reports that after his service he achieved two academic degrees, maintained steady employment, and maintained adequate social and familial relationships. Vet presents with subthreshold adjustment difficulties related to chronic back pain. Vet reports that his back pain began after MVA during service in 1977 and exacerbated significantly after MVA in 2005 (he is not SC for this condition). He described occasional brief periods of low mood as well as occasional difficulty sleeping in response to exacerbation of back pain (sleeps with back brace). He reported that he is able to improve his mood within one hour by taking a long walk or reaching out to friends. Based on current interview and presentation vet's response appears to be a normative reaction to chronic pain and he does not evidence marked distress or resulting impairment which would warrant diagnosis of a mental disorder at present time. Social Work Notes beginning in 2013 indicate that the Veteran reported depression over the stressors in his life such as chronic lower back pain, withdrawing from personal relationships, weight issues, and the complications of his mother's death. At the August 2014 Board hearing, the Veteran testified that the Veteran's excessive weight gain and feelings of tiredness led to his depression and he was not handling it well. In a November 2014 Psychiatry Attending Note, the VA provider noted that the Veteran had been in treatment with him since October 25, 2013. The provider stated, The following history was elicited as part of a new detailed clinical history and exam done with a focus on his major depression which began while he was in the service at base in England. He was not depressed before he was in the service and developed severe and unremitting depression after viewing the body of a young man who had committed suicide. This happened while he was on active duty. He became severely depressed with intermittent suicidal ideation which has persisted until the present. He was serving a 2 year re-enlistment position after his first four uneventful years in the service. He was deeply ashamed of feeling this way which prevented him from reporting the depression or seeking psychiatric help. He was depressed, suicidal, withdrawn and had severe insomnia. He became bulimic because the only relief he could achieve was by eating prodigious quantities of food, gating 60 pounds within a year. Because of his severe obesity, he was discharged a year early with an honorable discharge. Since then, he has remained severely depressed, intermittently suicidal, with nightmares of and flashbacks to the body of the person who had committed suicide and withdrawn and managed to do menial work until several years ago. The history described above documents a severe and unrelenting depression that was directly caused by the deeply disturbing event of seeing the suicide victim. In July 2016, the Veteran underwent VA examination at which time the examiner noted that the Veteran had a diagnosis of recurrent major depressive disorder. In October 2016, a VA psychologist stated, ... it is less likely than not that the patient is currently suffering from MDD [major depressive disorder] from in-service stressors. According to the records the veteran met a full diagnosis for clinical depression after experiencing additional life stressors: his mother passed away, marital divorce, and multiple medical problems including back injury, pain, weight gain, and disability. In June 2017, an additional opinion by provided by another psychologist who stated, ... The current diagnosis of Major depressive disorder was made several years after the mild head trauma or TBI, veteran did not have any residual cognitive problems for several years after his TBI. Individuals with mild TBI typically recover to premorbid levels of functioning within a year of injury as this is a static encephalopathy and deficits secondary to a remote history of mild head injury would not be expected to worsen over time. As per Op[h]thalmology examination dated 1/17/17 his optic neuropathy of the left eye is stable with a corrected vision of 20/40. His headaches and scar do not cause any significant functional impairments. There is no evidence in the treatment records to indicate any aggravation of his depression secondary to his service connected residuals of head trauma to include headaches and head scars, residuals of TBI, and optic neuropathy of the left eye. Hence it is my opinion that it is less likely than not [less than 50/50 probability] that his depression is related to or caused by or aggravated by his service connected residuals of head trauma to include headaches and head scars, residuals of TBI, and optic neuropathy of the left eye. The Board notes that there is a difference of opinion among the medical professionals. In deciding whether the Veteran has a chronic depressive disorder that is either related to his active duty service or to service-connected disability, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. In this case, the Board finds that preponderance of the evidence demonstrates that the Veteran suffers from a chronic major depressive disorder; however, the only favorable evidence which provides a link between the current depressive disorder and the Veteran's active duty service is based on the uncorroborated history provided by the Veteran and has limited probative value. Reonal, 5 Vet. App. at 461. As noted above, a November 2014 psychiatry attending noted diagnosed the Veteran as having a severe and unrelenting depression that was directly caused by the deeply disturbing event of seeing a suicide victim while he was on active duty. In this case, not only is there no corroborating evidence that the Veteran witnessed a suicide victim in service, the history reported during the November 2014 mental health visit is inconsistent with histories reported prior to that date. In September 2007, the Veteran reported periodic depression due to financial issues and his medical condition. In April 2012, the Veteran submitted a claim for service connection for depression, not related to service, but as secondary to service-connected conditions. At the September 2013 VA examination, the Veteran described brief periods of low mood as well as occasional difficulty sleeping in response to exacerbation of back pain. He also denied any incident of trauma during service stating that he had a good time. At the August 2014 Board hearing, the Veteran testified that his excessive weight gain and feelings of tiredness led to his depression and that he was not handling it well. In addition, during the November 2014 mental health visit, the Veteran reported that since service, he has remained severely depressed, intermittently suicidal, with nightmares of and flashbacks to the body of the person who had committed suicide and withdrawn and managed to do menial work until several years ago. This is also inconsistent with other evidence in the record. Although the Veteran was noted to have a depressed affect in January, March, and April 2009, depression screens were negative in December 2008, July 2009, November 2010, and July 2011; and the Veteran denied being depressed in August 2010, July 2011. On August 13, 2010, a medical history was taken from the Veteran prior to right foot surgery. At that time he denied a history of any psychiatric disorder, depression, anxiety, and PTSD. It was not until October 2013 that the Veteran was diagnosed as having depression and prescribed antidepressants. Prior to October 2013, although the Veteran's medication list included amitriptyline at bedtime for depression or pain, the record indicates that he was taking that medication as well as Vicodin for pain. Thus, the Board concludes that the November 2014 favorable opinion has very little, if any, probative value. In contrast, the June 2017 VA examiner's opinion was provided only after a review of the claims file and is supported by meaningful rationale. Thus, much greater weight is given to the June 2017 VA examiner's opinion. The Board must also consider the Veteran's own opinion that his major depressive disorder is related to active service. In this case, the Board does not find him competent to provide an opinion regarding the etiology of his major depressive disorder as this question is of the type that the courts have found to be beyond the competence of lay witnesses. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical issues, however, require specialized training for a determination as to diagnosis and causation, and such issues are, therefore, not susceptible of lay opinions on etiology, and the statements of the Veteran therein cannot be accepted as competent medical evidence. Thus, the record is absent evidence of a chronic psychiatric disorder in during active service; and the preponderance of the evidence weighs against the existence of a nexus between the Veteran's current major depressive disorder and either his active duty service or service-connected disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. ORDER Entitlement to service connection for an acquired psychiatric disability is denied. REMAND In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. As noted above, the Board remanded the case in March 2016 for additional development. The Board directed that the Veteran be afforded an appropriate VA pulmonary examination by a qualified examiner. The Veteran underwent VA examination in July 2016. The examiner, an internal medicine physician, opined that it was less likely as not that the Veteran's sarcoidosis diagnosed in 2008 was related to any event/incident during military service. The examiner noted that a detailed review of the service treatment records did not document any symptoms or signs indicative of sarcoidosis. The examiner noted, Sarcoidosis is a multisystem granulomatous disorder of unknown etiology that affects individuals worldwide and is characterized pathologically by the presence of noncaseating granulomas in involved organs. It typically affects young adults and initially presents with one or more of the following abnormalities: Bilateral hilar adenopathy, Pulmonary reticular opacities, ?Skin, joint, and/or eye lesions. The Board noted that the Mayo Clinic notes that the signs and symptoms of sarcoidosis vary depending on which organs are affected. Many patients with sarcoidosis experience lung problems which may include persistent dry cough, shortness of breath, wheezing, and chest pain. http://www.mayoclinic.org/diseases-conditions/sarcoidosis/symptoms-causes/dxc-20177970. The Board also noted that on Report of Medical History completed in conjunction with separation physical in December 1979, the Veteran reported shortness of breath and pain or pressure in chest although the examiner in 1979 noted that these symptoms were due to recent gain of 50 pounds in 40 days thought to be somewhat secondary to excessive worry. As such, the Board found that the July 2016 VA opinion was inadequate for rating purposes, and that an additional opinion should be obtained by a physician with expertise in lung disorders. The Board directed that the record should be referred to a physician with expertise in respiratory/pulmonary disorders for an addendum opinion as to whether it is at least as likely as not that the Veteran's sarcoidosis was caused by or aggravated by the Veteran's active duty service and whether the Veteran's sarcoidosis is in anyway related to symptoms of shortness of breath and chest pain or pressure documented during such service. In a June 2017 opinion, a VA attending physician noted that she had reviewed the available records and that the sarcoidosis condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The physician noted, STRs are silent for signs/symptoms suggestive of sarcoidosis. Separation exam 12/12/79 is silent for signs/symptoms suggestive of sarcoidosis. His available provided records are silent for signs/symptoms of sarcoidosis, until 2008 when has (sic) diagnosed. That was 28 years after military separation, with no documentation in chronicity. His sarcoidosis was not aggravated by his military service. He didn't have sarcoidosis in service. Per his Separation exam 12/12/79 : "shortness of breath and pain or pressure in chest due to weight gain of 50 lbs in 40 days." Physician's Summary of Defects and Diagnoses: " Exogenous obesity with secondary SOB. Obesity 63 lbs in excess of maximum allowable. Unfortunately, there is no indication that the attending physician has expertise in lung disorders. In addition, the physician did not adequately explain why the symptoms of shortness of breath and chest pain or pressure at the time of his separation were not early symptoms of the Veteran's sarcoidosis. As such, the Board again finds that the June 2017 VA opinion is inadequate for rating purposes, and that an additional opinion should be obtained by a physician with expertise in lung disorders. Accordingly, the case is REMANDED for the following action: 1. The record should be referred to a physician with expertise in respiratory/pulmonary disorders for an addendum opinion to the July 2016 VA examination report. If it is determined that additional examination is indicated, such examination should be scheduled. After reviewing the record, the examiner is asked to address whether it is at least as likely as not that the Veteran's sarcoidosis was caused by or aggravated by the Veteran's active duty service and whether the Veteran's sarcoidosis is in anyway related to symptoms of shortness of breath and chest pain or pressure documented during such service. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for opinion provided and should adequately explain why the symptoms of shortness of breath and chest pain or pressure at the time of his separation were not early symptoms of the Veteran's sarcoidosis. 2. After the development requested has been completed, the addendum report should be reviewed to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, corrective procedures should be implemented. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs