Citation Nr: 0736203 Decision Date: 11/16/07 Archive Date: 11/26/07 DOCKET NO. 05-30 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for depression, including as secondary to service-connected diabetes mellitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active service from July 1963 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In November 2006, the veteran withdrew his appeal for service connection for a skin condition. FINDING OF FACT The competent medical evidence reflects that the veteran's depression was at least partly caused by and/ or aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW Service connection for depression is warranted. 38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claim on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify In an August 2004 letter, the RO notified the veteran of the evidence required to substantiate a claim for service connection. This letter explained VA's duty to assist the veteran with the development of his claim and informed the veteran what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter also advised the veteran to submit any relevant medical records in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. A September 2007 letter informed the veteran of the evidence necessary to establish a disability rating or effective date in the event of award of the benefit sought. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable and appropriate efforts to assist the veteran with the development of this claim. The RO assisted the veteran by obtaining the service medical records and relevant post-service medical records. The veteran has also been afforded a VA examination, from which an opinion was obtained. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied, that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran. II. Analysis of Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain diseases, including psychoses, if it is shown that the veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, such disease became manifest to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2007). Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. 38 C.F.R. § 3.303(d). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2007). Where aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran served on active duty from July 1963 to May 1967. Service medical records do not show any complaints of or treatment for depression. VA medical records show that the veteran sought treatment for depressive symptoms in May 2004. Treatment records reflect that the veteran's chief complaint was a decrease in his quality of life due to diabetes. He complained of problems with his mood and sleep since being diagnosed with diabetes two years prior. He reported that he was depressed and had anxiety. Assessment was adjustment disorder. In 2005, VA medical records indicate that the veteran reported increasing depression over his medical problems and reported that he was unable to resolve the impact on his health and lifestyle changes. The veteran had a VA examination in March 2007. The examiner reviewed the claims file and interviewed the veteran. The examiner noted that service medical records did not show evidence of depression. The veteran reported that his symptoms began after his return from Vietnam. He reported that his symptoms increased since he was diagnosed with diabetes in 2000. The veteran reported that he frequently worried about his health and the possible negative effects of his medications. The examiner diagnosed dysthymia and adjustment disorder with anxiety. The examiner noted that the veteran's depression and irritability increased after the denial of his disability claim and that the veteran reported frustration in dealing with the benefit claims process. With regard to the issue of a causal relationship between diabetes and depression, the examiner stated, "While [the veteran] does report that depression is somewhat related to this, it is less likely than not that his depressed mood is exclusively caused by or 'due to' his diabetes diagnosis alone." The examiner noted that multiple factors contributed to the veteran's depression, including the loss of family members and the denial of the veteran's disability claim. The Board notes that the veteran has asserted in various statements that his depression is related to Agent Orange exposure during service in Vietnam. While the veteran's exposure to herbicides is presumed based upon his service in Vietnam during the Vietnam era, depression is not a presumptive disability under 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309(e) (2007). Accordingly, service connection on a presumptive basis may not be established. Further, notwithstanding the provisions relating to presumptive service connection, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In this case, however, there is no medical evidence of a direct causal relationship between Agent Orange exposure and depression. Thus, a grant of service connection on a direct basis is not warranted. Resolving reasonable doubt in the veteran's favor, the Board finds that there is competent medical evidence reflects that depression was at least partly caused and/or aggravated by service-connected diabetes. While the examiner who performed the 2007 VA examination opined that that other factors contributed to the veteran's depression, the examiner acknowledged that the veteran's depression was somewhat related to diabetes. The RO denied the claim on the basis that the evidence did not show that the veteran's depression was exclusively due to his diabetes diagnosis. However, the extent that the veteran's depression is due to service- connected diabetes goes to the issue of the appropriate disability rating and note the current issue on appeal of whether service connection is warranted on a secondary basis. Pursuant to the Court's holding in Allen, supra., the veteran is entitled to a grant of service connection for the percentage of disability that is due to the service-connected diabetes. Accordingly, service connection is warranted on that basis. ORDER Entitlement to service connection for depression is granted. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs