Citation Nr: 1804004	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO. 14-02 076	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for hypertension.

2. Entitlement to service connection for depression, as secondary to service-connected lumbar disc bulge, L5-S1.


REPRESENTATION

Appellant represented by:	Eric A. Gang, Attorney at Law


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel



INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from November 2005 to May 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not have an Axis I diagnosis of depression or any other mental disorder. The Veteran's symptoms are not attributed to his service-connected lumbar disc bulge, L5-S1.


CONCLUSION OF LAW

The criteria for entitlement to service connection for depression, as secondary to service-connected lumbar disc bulge, L5-S1, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012). 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.

II. Service Connection 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 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 Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection may also be granted 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). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. 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).

The Veteran contends that he suffers from depression because of his service-connected lumbar disc bulge, L5-S1. For example, in correspondence received February 13, 2016, the Veteran claims that he began seeking psychiatric treatment as a result of the changes in his life due to his service-connected disability. In the Veteran's notice of disagreement, he also contends that his depression is due to his hypertension, however the Veteran is not service-connected for hypertension and therefore service connection is not warranted on this basis.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for depression on a secondary basis. The reasons follow.

As to whether there is evidence of a current disability, the Board notes that there is evidence that supports a current disability and evidence against a current disability.  For example, VA treatment records show that one of the problems listed under the Veteran's "Problem List" is "Depression."  However, the Veteran was provided with a VA examination in March 2013. At that time, the examiner, after a thorough examination, determined that there was no diagnosis for Axis I. The examiner explained while the Veteran had physical limitations and frustration, these symptoms were not a full mental condition. The Board accords this medical opinion more probative value than the cursory diagnosis of depression in the VA treatment record, as the examiner explained why he did not find evidence of an Axis I diagnosis.  Thus, the preponderance of the evidence is against a finding that the Veteran has an Axis I diagnosis of current mental disability. As the weight of the evidence is against a finding of a current disability due to disease or injury, service connection for a disability is not warranted.

Furthermore, evidence in the record shows that the Veteran's psychiatric symptoms have been attributed to his job as a firefighter. For example, of record is a December 2014 document (that has been translated from Spanish to English), which states that the Veteran filed a work accident report on May 28, 2015 which stated, "[The Veteran] alleges that on various occasions he feels shortness of breath up to the point of feeling desperate. The first occasion was in a structure fire with his breathing equipment on and he had to leave the area running and taking off his equipment in search of air." In a November 2016 letter, characterized as a Referral for External Services, it notes that the Veteran had alleged emotional symptoms of anxiety that are the product of his job as a firefighter. To the extent that the Veteran has demonstrated psychiatric symptoms after the March 2013 VA examination, the symptoms have been attributed to the Veteran's occupation as a firefighter, and not to the Veteran's service-connected lumbar disc bulge, L5-S1. As the Veteran's symptoms have been attributed to an intercurrent cause, service connection for such symptoms is not warranted.

In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for depression. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107(b) is not applicable, as there is no approximate balance of evidence. Gilbert, 1 Vet. App. 49, 53; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).



ORDER

Entitlement to service connection for depression, as secondary to service-connected lumbar disc bulge, L5-S1, is denied. 


REMAND

While further delay is regrettable, additional development is warranted before the Veteran's claim may be decided.

The Veteran's active duty service treatment records (STRs) do not show complaint, diagnosis or treatment for heart problems. In a report of medical examination, dated October 18, 2005, the Veteran was clinically evaluated to have normal heart findings, included thrust, size, rhythm and sounds. The Veteran was shown to have normal blood pressure readings.

After the completion of active duty service, the Veteran continued to serve in the U.S. Army Reserves. STRs from this period include a report of medical examination from May 8, 2007, where the Veteran was clinically evaluated to have normal heart findings, included thrust, size, rhythm and sounds. However, the Veteran was also shown to have a slightly elevated blood pressure, which the examiner classified as "asymptomatic."

In a report of medical history from July 2, 2007, the Veteran stated that he had no history of either high or low blood pressure. In a health questionnaire for dental treatment from February 2011, the Veteran stated he had high blood pressure. In a periodic health assessment from May 2012, the Veteran reported a history of untreated high blood pressure. A March 2013 medical evaluation brief shows that the Veteran reported he had been diagnosed with hypertension on October 22, 2012. The Veteran received a VA examination on March 4, 2013, and was shown to have a history of hypertension.

The Veteran is shown to have U.S. Army Reserve duty for several years after his period of ACDUTRA, including trainings in 2011, 2012, and 2013. It is not clear from the Veteran's claims file, however, if this service was ACDUTRA or inactive duty training (INACDUTRA). The claim must be remanded to ascertain these periods of training.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should prepare a summary/memorandum based on verified information from appropriate official sources of the specific dates of active duty, inactive duty, active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) for the Veteran in the U.S. Army Reserves. Records concerning service merely denoting the amounts of points he obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on active duty, inactive duty, ACDUTRA and INACDUTRA.

2. After completing Step 1, and any other development deemed necessary, the AOJ should readjudicate the Veteran's claim for service connection for hypertension. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs