Citation Nr: 1807142 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-04 507 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to a service-connected status post left patellectomy. REPRESENTATION Appellant represented by: West Virginia Department of Veterans Assistance WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from August 1987 to April 1992. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case is now under the jurisdiction of the RO in Pittsburgh, Pennsylvania. In May 2011, December 2012, February 2017, and September 2017, the Board remanded the case for additional development, which has been completed. The matter has since been returned to the Board for appellate review. In September 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the record. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, to include depression, did not manifest in service and is not attributable to service. 2. The Veteran's acquired psychiatric disorder, to include depression, is not caused or made worse by the Veteran's service-connected status post left patellectomy. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Prior to the initial adjudication of the claim in January 2008, the RO satisfied its duty to notify the Veteran. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b)(1). VA's duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Relevant service and post-service treatment records have been associated with the claims file. Moreover, the record reflects substantial compliance with the Board's prior remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In addition, the Veteran was afforded VA examinations and addendum opinions in September 2007, October 2014, and March and September 2017, which are fully adequate. Hence, the duties to notify and to assist have been met. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, service connection may be granted where a disability is aggravated by a service connected disability, to the extent of the aggravation. 38 C.F.R. § 3.310(b). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In considering the evidence of record under the laws and governing entitlement to VA benefits, the Board concludes that service connection is not warranted for an acquired psychiatric disorder, to include depression. The Veteran contends that his mental condition was caused by constant left knee pain and "not being able to do simple everyday activities." See April 2003 VA Form 21-4138 Statement in Support of Claim. He testified that his quality of life has gone down and that he did not suffer from depression prior to his knee injury in 2002. See September 2010 Transcript of Hearing at 3, 7-8, 18. The Veteran was diagnosed with a number of mental disorders, including depression. See Dr. M. M.'s June 2007 letter; VA treatment records and examination reports. Service treatment records are silent for any in-service complaints, symptoms related to, treatment for, or diagnosis of an acquired psychiatric disorder. In September 2006 and June 2007, the Veteran's private psychologist determined that the Veteran's medical problems had resulted in an emotional state of depression for the Veteran. He noted that the Veteran was a successful, vital man at the time of his left leg injury, who was looking forward to a fulfilling and successful life and career. He found that the Veteran had lost his ability to engage in most activities due to his injury. Additionally, the Veteran's loss of function and pain had directly and adversely affected his family relationships and greatly diminished his quality of life. A September 2007 VA examiner opined that the Veteran's mental conditions were unrelated to his military service or service-connected conditions. The examiner stated that the Veteran had a history of recurrent anti-social behavior that occurred well before the Veteran's knee injury. Additionally, the examiner opined that it was at least as likely as not that the Veteran's mood issues were related to his use of opioids. In November 2010, a VA staff psychiatrist noted that the Veteran's medication, pain issues, and his problem with mobility were contributing factors to the Veteran's depression. Pursuant to the Board's December 2012 remand, the Veteran was provided an additional VA examination in October 2014. The examiner opined that the Veteran's unspecified depressive disorder was less likely than not caused or aggravated by the Veteran's service-connected left leg disability. The examiner stated that there was no scientific or medical evidence to indicate that a patellectomy physiologically caused or produced a depressive disorder. In other words, there was no direct or proximal physiological etiological link between patellectomy and depression. The examiner noted that there was no evidence to suggest that the Veteran was ever diagnosed with or treated for depression while in the military. Thus, there was no temporal or chronological link to an onset of depression at time of the Veteran's in-service injury. Moreover, the examiner pointed to the West Virginia Disability Determination Service report, which indicated an onset of depression in 1999 following the Veteran's work-related injury in December 1998. The examiner stated that the Veteran first presented to the VAPHS emergency department with symptoms of depression in March 2002, which was the first clearly documented symptoms of depression, approximately ten years post-service with no nexus to the Veteran's original in-service injury in 1989. The examiner added that the Veteran's other specified personality and alcohol use disorders predated and were not related to the Veteran's military service. In March 2017, a VA examiner provided an addendum opinion and a new VA examination in accordance with the Board's February 2017 remand. During the examination, the Veteran reported that he was not in treatment for depression or any mental disorder. The examiner noted that the Veteran did not report any symptoms consistent with a mental disorder and determined that the Veteran did not currently meet criteria for a mental disorder. The Veteran remained angry about his medical condition, but anger was not a mental disorder. The examiner noted that although the Veteran had been diagnosed with depression (noted in 2016 as exacerbated by pain) or adjustment disorder in the past, the provider had only met with the Veteran one time and took the Veteran's word on the matter, rather than reviewing the records and making a separate determination. No other evaluation or report indicated that the Veteran's "[depression] was exacerbated by his pain" and the October 2014 VA examiner had indicated that the depression and knee injury were unrelated. Since that time, the Veteran reported medical conditions such as lung collapse that caused him severe pain that was not related to his service-connected knee injury. The examiner added that simply noting in a report that the Veteran has depression exacerbated by pain did not differentiate what pain (pain related to a service-connected condition or pain related to nonservice-connected conditions). The examiner pointed out that depression was not noted until many years later after the Veteran's knee injury in 1986. Additionally, the Veteran had a work-related injury in 1988 when he fell off a ladder, back problems, and other medical difficulties that caused him to stop working in 2009. While he noted chronic worsening of his knee condition, including experiencing chronic pain and some reduced mobility since 1986, the Veteran's history indicated an onset of depression after his work-related fall in 1998 with no significant worsening of symptoms over time, and some periods of remission of symptoms when he did not require any treatment for a mental disorder. At the same time, the Veteran related that his knee condition, general pain, and health declined. Thus, the examiner concluded that there was no correlation between the Veteran's service-connected knee condition and his history of depression. Pursuant to the Board's September 2017 remand, the March 2017 VA examiner opined again in a September 2017 addendum opinion that the Veteran's depression was less likely than not due to, caused by, or aggravated by his service-connected knee condition. In reference to the Veteran's private psychologist's findings, noted above, the examiner highlighted the lack of "probative value" and noted that the Veteran's private psychologist did not have a medical degree (MD) in making a medical determination and statements regarding the Veteran's medical condition. The examiner pointed out the Veteran's private psychologist commented on the Veteran's disability in general and at no point did the Veteran's private psychologist specifically mention the Veteran's knee, his service-connected knee injury, or serious post-military work-related injury that had also resulted in a disability that is not service-connected. As such, the examiner determined that there was no evidence that the Veteran's service-connected knee was the source of his depression or an aggravating factor in his depression. Moreover, the examiner noted that the Veteran's private psychologist did not review the Veteran's claims file to have a full and complete history of the Veteran's service-connected condition and his post-military work-related injury. The examiner added that if the Veteran's service-connected knee condition were to be causing or aggravating his presumed depression, then one would expect to see a diagnosis of depression shortly after onset of the knee condition and worsening of depression with worsening of knee condition. The examiner incorporated the findings from the October 2014 and March 2017 VA examination reports. As an initial matter, the Veteran does not contend, nor does the evidence suggest, that his acquired psychiatric disorder, to include depression, was incurred in or is directly related to his military service. Accordingly, the Board concludes that entitlement to service connection for acquired psychiatric disorder, to include depression, on a direct basis is not warranted. With respect to the Veteran's claim for service connection on a secondary basis, the September 2007, October 2014, March 2017, and September 2017 VA examiners' opinions weigh against the Veteran's claim. The Board finds that the VA examination reports and addendum opinions are significantly probative here, as the examiners reviewed the evidence of record, including the Veteran's lay statements, and relied on their own training, knowledge, and expertise as a medical professionals in rendering their opinions. The evidence weighing in favor of the Veteran's claim primarily consists of the September 2006 and June 2007 private psychologist opinions, and the November 2010 VA psychiatrist's assessment. Here, the favorable evidence is unsupported by a complete review of the Veteran's claims file and medical history. Moreover, the Veteran's private psychologist did not specifically link the Veteran's acquired psychiatric disorder, to include depression, to the Veteran's service-connected status post left patellectomy and thus has limited probative value. Hence, the Board finds the VA examiners' opinions more probative for the reasons described above. The Board acknowledges the lay statements and assertions of record, including the sincere belief that the Veteran's depression and a diminished quality of life are related to his knee pain. In some circumstances, lay witnesses may opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, neither the Veteran nor his representative is competent to provide an opinion as to whether the Veteran's acquired psychiatric disorder, to include depression, is related to his service-connected status post left patellectomy, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a)("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). Accordingly, the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include depression, as secondary to a service-connected status post left patellectomy is denied. ORDER Service connection for an acquired psychiatric disorder, to include depression, as secondary to a service-connected status post left patellectomy is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs