Citation Nr: 1825474 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-35 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability. 2. Entitlement to service connection for an acquired psychiatric disability to include as secondary to service-connected adenocarcinoma of the prostate, status post radical robotic prostatectomy with residual urinary dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and Spouse ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran had active service from February 1968 to December 1971, including service in the Republic of Vietnam. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2017, the Veteran testified during a hearing before the Veterans Law Judge below that was conducted by video conference. A transcript is of record. FINDINGS OF FACT 1. In an April 2012 decision, the RO denied entitlement to service connection for psychiatric disability and the Veteran did not appeal the decision. 2. Evidence received since the April 2012 decision is not cumulative and redundant of the evidence of record at the time of the prior denial, and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's psychiatric disability has not been linked by competent evidence to service, or to his service-connected adenocarcinoma of the prostate, status post radical robotic prostatectomy with residual urinary dysfunction. CONCLUSIONS OF LAW 1. The April 2012 rating decision denying the Veteran's service-connection claim for psychiatric disability is final. 38 U.S.C.A. § 7104 (West 2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received to reopen the claim for service connection for psychiatric disability. 38 U.S.C. §§ 5108, 7105 (West 2012); 38 C.F.R. §§ 3.156, 20.1100 (2017). 3. The criteria for the award of service connection for an acquired psychiatric disability, to include as secondary to service-connected adenocarcinoma of the prostate, status post radical robotic prostatectomy with residual urinary dysfunction, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (West 2012); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS 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 during the course of this appeal. 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 a duty to assist argument). II. New and Material evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purposes of evaluating a request to reopen a previously denied claim, the credibility of new evidence will be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's service-connection claim for a psychiatric disorder was denied in an April 2012 rating decision. The Veteran did not initiate an appeal of this decision and the rating decision is final. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2017). Since the RO's April 2012 rating decision, the Veteran has presented evidence of a psychiatric diagnosis, and considered credible for purposes of reopening, testimony suggestive of a link with service or service connected disability. This meets the low threshold for reopening a claim. III. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to obtain service connection the evidence 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, i.e., a "nexus." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran contends that his acquired psychiatric disorder is secondary to his service- connected adenocarcinoma of the prostate, status post radical robotic prostatectomy with residual urinary dysfunction. See August 2011 Statement in Support of Claim. Pertinent evidence of record includes the Veteran's service records, VA treatment records, April 2011, November 2011, and July 2014 VA examinations, and lay statements of the Veteran, his spouse and children. Review of the Veteran's DD-214 confirm that his military occupational specialty (MOS) was motorized vehicle mechanic, that he served in Vietnam, and that he was awarded a combat action ribbon. Remaining service treatment records for the Veteran are silent for a diagnosis or treatment of any acquired psychiatric disorder. In connection with his claim for service connection, the Veteran underwent three VA examinations in April 2011, November 2011, and July 2014. Both the April 2011 and November 2011 examiners noted that the Veteran did not have a psychiatric diagnosis. The July 2014 examiner diagnosed the Veteran with persistent depressive disorder. She further noted that the Veteran's diagnosis goes back until at least 1992 and opined that the: Veteran's Persistent Depressive Disorder was less likely as not secondary to, neither caused nor aggravated by his diagnosis of prostate cancer. Research has shown that the "majority of patients who have a depressive disorder will experience relapses and recurrences, with the first few episodes linked to unequivocal stressors and later episodes appearing more spontaneously" (Journal of Clinical Psychiatry 2003; 64 supplement 15); therefore, it is more likely than not that a person who experiences a depressive disorder early in life will experience [m]ore episodes of depression in the future. It is the opinion of this examiner that Veteran's current subjective report of depressive symptoms is less likely than not related to, caused by, or aggravated by depression that occurred during his military service but is a natural progression of his pre-existing disorder. This opinion is based on review of the Veteran's C/E-file, CPRS mental health records, objective test results from this examination, diagnostic clinical interview and training and experience of this examiner. The Veteran's VA treatment records document treatment for depression and anxiety. During his September 2017 Board Hearing, the Veteran testified that he first started having problems with depression and anxiety "after the prostate" when he came out of service and that he continues to suffer from these symptoms. His wife testified that the Veteran suffered from depression, alcohol abuse, and bouts of anger throughout their marriage. The Veteran's son and daughter both submitted statements detailing the Veteran's symptoms of anger, depression, and anxiety over the course of their lives. After reviewing the totality of the evidence, the Board finds that the greater weight of the evidence is against the conclusion a psychiatric disorder was incurred in service, or is secondary to the Veteran's service-connected prostate cancer. While the date of the onset of the Veteran's disability may not be precisely determined, the record supports the conclusion it was after service, and before the onset of his prostate cancer. This is based on the service treatment records that fail to reflect any psychiatric complaints or findings, including most notably the examination conducted at the time of the Veteran's service discharge which gave specific consideration to psychiatric impairment. There also are medical records that reflect psychiatric care given prior to the prostate cancer diagnosis, but well after service. This conclusion regarding the timing of the onset of the disability also appears to comport with the testimony taken on the question. In view of this, it may be reasonably concluded the claimed disability was not incurred in service, nor caused by a service connected disability. On the question of whether the service connected prostate cancer may be considered to have aggravated the Veteran's depression, the only competent evidence addressing that is the July 2014 medical opinion. That opinion essentially describes the Veteran's presentation as consistent with what one would expect, regardless of the presence of prostate cancer. Accordingly, it may not be concluded the depression was increased in severity beyond its natural progression as a result of the Veteran's cancer. Although the Veteran may contend otherwise, he is not shown to possess any specialized medical knowledge as would permit according his opinions on this subject any probative value. Lastly, it is noted that there is no medical evidence associated with the record that supports a finding that the Veteran's depression was incurred in service, or was caused or aggravated by his service connected disability. Because the greater weight of the evidence is against the claim, service connection for an acquired psychiatric disorder is denied. ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder has been received, and the petition to reopen this claim is granted. Service connection for an acquired psychiatric disorder, to include as secondary to service-connected adenocarcinoma of the prostate, status post radical robotic prostatectomy with residual urinary dysfunction is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs