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The Most Screwy Bva Claim I Have Ever Read


carlie

Question

This vet was only AD for 2 months.

http://www4.va.gov/v...es4/0831035.txt

Citation Nr: 0831035 Decision Date: 09/12/08 Archive Date: 09/22/08DOCKET NO. 06-19 397 ) DATE ) )

On appeal from theDepartment of Veterans Affairs Regional Office in Sioux Falls, South Dakota

THE ISSUE

Entitlement to service connection for a depressive disorder, to include as secondary to a service-connected right knee disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 3, 1972 to June 5, 1972.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. The veteran's case comes from the VA Regional Office in Sioux Falls, South Dakota (RO).

The Board notes that the veteran was born as a male and has had a sex change and a legal name change to become a female. Accordingly, the veteran's medical records variously refer to her in both male and female terms, depending on the time frame of the medical records. The evidence of record clearly shows that the veteran prefers to be referred to as a female, and thus this decision is written in that context; however, accurate quotation of relevant medical records requires some references to the veteran as a male. These have been restricted only to direct quotations from the medical records themselves.

FINDING OF FACT

The competent medical evidence of record does not show that the veteran's depressive disorder is related to military service or to a service-connected disability.

CONCLUSION OF LAW

A depressive disorder was not incurred in, or aggravated by, active military service, nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication, letters dated in April 2005 and June 2005 satisfied the duty to notify provisions. Additional letters were also provided to the veteran in March 2006 and February 2007, after which the claim was readjudicated. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records, VA medical treatment records, and indicated private medical records have been obtained. VA examinations were provided to the veteran in connection with her claim. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence.

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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 established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The veteran's service medical records are negative for any complaints, symptoms, or diagnoses of a psychiatric disorder.

After separation from military service, in a November 1980 suicide note the veteran wrote "I realize I have done wrong but this is the only way out in style. You know I could not handle prison." A VA medical report dated the same day stated that the veteran attempted suicide with prescription medication and alcohol because "he 'couldn't take prison' (?) apparently he has been convicted of passing bad checks."

A second November 1980 VA medical report stated that the veteran was "[v]erbalizing feelings of depression, being no good, hating the world and other people, has had everything that money can buy but shall never be happy."

A December 1980 VA medical report stated that the veteran attempted suicide after she "was arrested for writing bad checks and was fearful that he was going to go to prison. He also had a suicide attempt five months ago. [The veteran] states he hears voices mostly female that tell him to die that life isn't worth living." The veteran reported that she left the Marines because "he didn't like being told what to do." The assessment was rule out paranoid schizophrenia, rule out drug related psychosis, and rule out depression.

A second December 1980 VA medical report stated that the veteran had not displayed much objective depressive symptomatology since admission and within the last few days. The examiner stated that the veteran was "very manipulative."

A third December 1980 VA medical report gave diagnoses of depression, passive aggressive personality disorder, and poly-drug abuse. The medical evidence of record shows that depression has been consistently diagnosed since December 1980.

A January 1984 VA medical report included a prescription for anti-depression medication.

A June 1998 private medical report gave an impression of depression.

A November 1999 private medical report stated that the veteran had depression and "[h]is memory is somewhat impaired, he doesn't know the name of the governor of Florida, he cannot subtract successive sevens from 100." The impression included "history of emotional problems and impaired memory."

A November 1999 private psychological report stated that the veteran "describes having had depression for years, but it has become worse, due to pain and to the suicide of his (now ex-) fiancée's son." On mental status examination, the veteran's memory was below average. The report noted that the veteran appeared to be in pain, but did not state what was causing the pain. The diagnosis was major depression, recurrent, and indications of memory problems.

A June 2005 VA medical report stated that the veteran's depression treatment "started at about age 12. He states his father sent him all over the country to psychiatrists 'sent him to the best of the best.'" The veteran's medical history included transgender disorder. The veteran stated "that he did not like authority figures, and that is why he didn't like the [M]arines. Felt he 'got into the wrong branch of the service.'" The examiner noted that the veteran "seems to have some discrepancies in her stories." The veteran reported that she "was born with partial uterus and that his penis is buried inside vaginal vault. He states that he has had 2 periods in the last month." On physical examination, the veteran had "a penis that is not in the vaginal vault, as she believes, but in fact is just difficult for her to reach secondary to pendulous abdomen." The assessment included transgender disorder and depression with history of suicide attempt. The examiner told the veteran that "her penis was not buried inside her vagina, but that the reason she could not reach it was due to her obesity." The examiner stated that the veteran could not remember contact information about numerous locations of previous medical treatment. The examiner stated that

I think that she has elected not to remember many of these since she has been told things by these people she does not want to hear or believe and that she would just as soon I didn't receive records from them since she wants me to believe she has a functioning uterus and vagina (stating she is hav[ing] vaginal bleeding).

A June 2005 VA mental disorders examination report stated that the veteran's claims file had been reviewed. The veteran stated that

she first became aware of "gender issues" when she was about 15 years of age. . . . she first took medicine for depression in 1972 or 1973. She indicated that she was given the medication Elavil. She also indicated then in the early part of the interview that she had attempted suicide three times during the mid 1970s, shortly after leaving the military. She stated that she felt that she was suicidal because of her knee injury. When asked to describe that in more depth, she said that "I could not do the things that boys would do and I wanted to die because of my knee." . . .

She indicated that she had worked for [her father] for about 27 years, and referenced the time period of 1972 to 1993, of only 21 years. In this latter part of the clinical interview, the veteran indicated that she had first taken Elavil in 1978, and also modified her report of her suicide attempts to indicate that her three suicide attempts had been over about an 11 year period from 1972 to 1983. . . .

The examiner formed the opinion that this veteran was not a reliable reporter during the clinical interview. The examiner did not have the impression that the veteran was deliberately deceptive, but that she had difficulty with memory and may have been confused.

This veteran's long history of living as a man while believing that she was a woman was certainly a long term stressor that could easily be responsible for her depressive symptoms. It was also possible that her knee injury contributed to or was possibly responsible for her depressive symptoms. The veteran's inconsistent reporting regarding such things as when she last worked, how long she worked for her father, how often she attempted suicide over one period of time, all indicate that she may not have been a reliable reporter. . . .

It was not possible to determine from the data available to the examiner whether her depression was likely due to her long term struggle with gender issues versus her knee injury. The examiner could not form an opinion without resorting to mere speculation.

A second June 2005 VA medical report stated that the veteran "reports the depression started 45 to 50 years ago, and she has felt depressed since. She realized she was a girl born in a male body. The veteran reports her sister told her that she was born with the genitalia of both a male and a female, but she was raised as a boy. She reports that she has always wanted to be a girl and in fact acted like a girl a lot during childhood." The veteran reported that "she had gender change surgery about four months ago and now has a penis and an inverted vagina, and she reports that she has periods monthly." The veteran reported having an orchiectomy several years before and could not recall the doctor who performed it.

In a July 2005 private medical report, a private examiner stated that

it is my medical opinion that more likely than not her DSM IV diagnosis of dysthymia has been exacerbated by recently being told by an orthopedic specialist her right leg may need to be amputated. Her right knee damage and subsequent replacement has been identified as a service connected injury. Therefore the exacerbation of her depression is also service connected in my opinion.

A July 2005 VA medical report stated that the veteran was facingan amputation or fusion in this right knee and neither one of those in my opinion is a good option. I don't know of anything to reconstruct the medial ligaments successfully. The [veteran] is out of my league as far as surgical corrections are concerned and I would try this brace and if it is not satisfactory, I would be more than happy to refer him to [another physician].

A second July 2005 VA medical report stated that the veteranwas seen by [a VA physician] just last week and at that time was told that she might need to have her leg amputated. As a result of this, of course, her depression has become worse, and she stated, "It really freaks me out to think about." . . . It sounds like depression is really more the issue for this veteran in terms of mood disorder. The veteran does have a great deal of difficulty with memory and also the questionable delusional material, regarding the vagina and regular monthly bleeding that she reports.

An August 2005 VA medical report gave assessments of cognitive disorder, not otherwise specified, gender identity disorder, dysthymia, and psychosis, not otherwise specified. The examiner stated that "[w]e did discuss her inability to answer most questions clearly and her lack of recall. She does identify that she has problems with her memory and has been having problems with her memory."

A September 2005 VA medical report stated that the veteran "has given this much consideration and desires right leg amputation." A September 2005 VA neuropsychological consultation report stated that the veteranstated that her sister informed the veteran that she was born as a hermaphrodite, and at age 3 months had surgery to establish her as a male. At approximately age 9, she started realizing that she felt more comfortable as a female. She became depressed and has experienced lifelong depression over her sexual conflict. She reported that she then had surgery to convert her into a female in 2003. . . .

She reported forgetfulness, in that she forgets what she has watched on television and forgets other important events in her life.

On mental status examination, the veteran's affect was depressed and she reported having depressed moods for "most of her life." The veteran "stated that she is much happier now that she is considered a female." The impression was[t]he veteran is a 52-year-old female who has had significant conflicts in her life, starting extremely early. She presents with a complex diagnostic picture reflecting the sum total of her many both unhappy and satisfying experiences. According to her report, she has had a lifelong depression that has kept her from significantly enjoying her life. Her conflicts have centered primarily around her sexuality. While her parents strongly guided her in male directions, she felt more comfortable as a female. It was not until midlife that she was able to decide that becoming a female was the correct path for her. She has developed personality patterns that involve manipulation and difficulty being direct in expressing her feelings and intentions. Thus, she tends to use her physical discomfort to get what she desires.

The diagnoses were major depressive disorder, recurrent, with psychotic features, gender identity disorder, and personality disorder, not otherwise specified. The only disability listed under Axis III was diabetes.

An October 2005 VA medical report stated that a VA surgeon "tried to tell [the veteran] that [above-knee amputation] is drastic but she was convinced that it should be done. I will cancel operation this week pending psych review." A subsequent VA psychiatry clinician note dated the same day stated that

t is my recommendation based on [the veteran's] history of being delusional or vague about male to female surgery that [she] should exhaust all nonsurgical options for knee pain before considering amputation. [The veteran] does not demonstrate a clear understanding of what if any male to female gender reassignment surgery has been done which makes one wonder about the level of [her] understanding regarding a surgery as serious as amputation.

A subsequent October 2005 VA medical reports stated that an amputation would not be performed until all departments were satisfied that the veteran understood the consequences of the operation.

An October 2005 VA medial report stated that the veteran "had requested surgery service to amputate the leg and this was not done."

In a January 2006 VA psychiatry report, the veteran reported that an increase in her prescription medication had helped her depression. She reported continued problems with her right leg, but that it was healing and she was glad she did not have the limb amputated. The assessment was cognitive disorder, not otherwise specified, gender identity disorder, dysthymia, and psychosis, not otherwise specified. The examiner stated that "[w]e did discuss the results of [the September 2005 VA neuropsychological consultation report] which did show that this veteran has a pattern of using manipulation and her health issues to get her needs met."

In a September 2006 VA mental health outpatient report, the veteran stated that she has been depressed since childhood due to gender identity issues. . . . Her depression apparently was exacerbated following a knee injury and subsequent discharge from the military in 1972. . . .

[The veteran] reports treatment for mental health problems since 1972 or 1973, although says she had emotional problems (depression) because of her desire to be a female since she was quite young. She says she has been cross dressing since she was around 8 years old, but she did not decide to pursue sex reassignment surgery until she was in her early 40's. She describes becoming very depressed after she joined the Marine Corps, received a severe knee injury in a fall and has had ongoing surgeries and pain for this injury limiting her physical activities. . . .

[The veteran] has difficulty proving an accurate psychiatric history, reporting some memory problems. She was hospitalized in the early 70's . . . after she overdosed on 375 Elavil "because I wanted to be a girl."

A second September 2006 VA mental health outpatient report stated that the veteran was "feeling depressed . . . primarily having difficulty dealing with stressors of chronic pain and financial stressors. Reports significant leg pain, chronic since accident."

In a November 2006 VA mental health outpatient medical report, the veteran reported "[p]hysically not feeling well, although she reports much of depression revolves around continued urinary problems and no clear plans for her completed sex change surgery."

A March 2007 VA psychiatry clinician report stated that the veteran "histrionically volunteers that they were trying to amputate her right leg last year but tells that she would not allow it saying 'I am not going to l[o]se my knee.' Point of fact is that [the veteran] was pushing to have the above the knee amputation done." The veteran reported that she sensed she was female at about the age of 5 and had been dressing as a female since that age. The examiner stated that the veteran had been "motivated to get her [medication] renewed and has been very manipulative. Judgment has been poor related to her attempts to get her leg amputated."

A May 2007 VA psychiatry clinician report stated that the veteran wasvague about when she started living as a female. She tells of wearing female clothes since she was a grade schooler and is indefinite about who knew about this. . . . [she] tells that she attended college for 5 years to get a masters in business. [The veteran] later says that this was misinformation since she has a degree that she got after only 3 years.

A June 2007 VA psychiatry clinician report stated that the veteran reported "that her memory is poor but there seems to be some selective memory problems so it is difficult [to determine] how organic this might be."

In a November 2007 VA psychiatry clinician report the veterantells she was 16 when her psychologist alcoholic mother committed suicide. This does not match with other parts of her story and she explains that her mother actually died in between 1989 and 1991 when she was in her 40's. She says her mother left when she was about 9 and she didn't see her again until she [w]as 19 or 20. This does not match with the encounter she tells of having with her mother when she was 16 and her mother was walking around in front of her without any top on. She clarifies that her mother did come to her boarding school and kidnapped her but the police came the next day to get her back to school. She thinks this occurred when she was 14 or 15. She tells me clearly that she does not lie and I explain that I am just trying to clarify how it is that her stories don't jive. . . .

She reviews that when she was about 15 and wanting so badly to become a girl, she overdosed on about 350 Elavil. She says her records indicate that she was committed to a WV State Mental Hospital at that time in 1980 but she has no recall of this. She reports she knew by the time she was 8 years old that she wanted to be a girl.

A January 2008 VA psychiatry clinician report stated that the veteran wanted the examiner to give her a statement that would provide an etiology relating the veteran's depressive disorder to her right knee disorder. The examiner agreed to make the following statement:

It is likely that the stress [the veteran] has experienced dealing with knee problems over the years has contributed to a depressive disorder in this [veteran.] The diagnosis of [major depressive disorder] is made from the symptoms and history [the veteran] has presented to me on Dec[ember] 21, 2007 and Jan[uary] 17, 2008. I will need to get a history of [her] life and psychiatric treatment before I can confirm that she does meet criteria for [major depressive disorder], recurrent.

A March 2008 VA mental disorders examination report stated that the veteran's claims file had been reviewed. The veteran reported receiving psychiatric treatment in 1980 at the facility where she was treated for her November 1980 suicide attempt. She was not able to recall any other psychiatric hospitalizations. The veteran reported receiving outpatient mental health care in multiple places, but could not provide further details. The examiner stated that in June 2005, the veteran

told the nurse practitioner that her depression started 45 to 50 years ago, and indicated that she has felt depressed since that time. That would mean that the [veteran's] depression started between 1955 and 1960. The [veteran] entered military service on April 3, 1972, and was discharged on June 5, 1972. The [veteran] was not clinically depressed at the time of her entry into military service. The [veteran] told me that her depression started one to two months after her discharge from the United States Marine Corps. However, an entry in the [veteran's] medical record dated February 12, 2008 that was written by her treating psychiatrist . . . indicates "The [veteran] volunteers that she lies too much. She then identifies it as an exaggeration of the truth." It is noteworthy that the [veteran] has a history of severe personality disorder. In reviewing her claim files, it is clear to me that her personality disorder includes borderline, antisocial, histrionic, and narcissistic features. Although the [veteran's] knee injury occurred while she was in military service, there is no documentation that the [veteran] had any complaints, treatment, or diagnosis of depression or any other mental disorder during military service. . . .

During the past year, the [veteran] has evidenced the characteristics of an individual with a personality disorder not otherwise specified. She has a sense of entitlement, displays rapidly shifting and shallow expression of emotions, shows self-dramatization, has an unstable sense of self, has affective instability due to a marked reactivity of mood (e.g., episodic dysphoria, irritability, or anxiety), and has a pattern of unstable interpersonal relationships characterized by alteration between extremes of idealization and devaluation. The [veteran's] personality disorder includes primarily borderline traits, but it also includes narcissistic, antisocial, and histrionic features. The antisocial element in the [veteran's] personality disorder involves her tendency to be deceitful or to manipulate others for her personal profit. As a result of her severe personality disorder, the [veteran] experiences significant difficulty in interacting with the world around her. She indicated that she has a depressed mood for most of the day on a daily basis. The [veteran] does have a depressive disorder, but her depressive disorder is clearly secondary to the psychosocial consequences of her personality disorder. That is, the [veteran's] personality disorder precludes her being able to maintain employment, and her personality disorder also prevents her from maintaining satisfying and fulfilling long-term social relationships.

On mental status examination, the veteran had significant impairment in her long-term and short-term memory processes. The diagnoses were depressive disorder, not otherwise specified, and personality disorder, not otherwise specified. The examiner stated that

it is my opinion that the [veteran's] depressive disorder is not caused by or a result of her service-connected right knee disability. It is my opinion that the [veteran's] depressive disorder is caused by the psychosocial consequences of her severe personality disorder. Her personality disorder causes her to experience serious impairment in social functioning and in terms of her social relationships. Her personality disorder also causes her to be unable to maintain substantial, gainful employment. The [veteran's] personality disorder involves an enduring pattern of perceiving, relating to, and thinking about the environment and herself, and this enduring pattern is exhibited in a wide range of social and personal contexts. Her personality traits are inflexible and maladaptive, and they cause her significant functional impairment and subjective distress. The [veteran's] personality disorder is characterological, and it should thus be considered non-service-connected in nature. Since her personality traits are so inflexible and maladaptive, she experiences considerable difficulty in a wide range of social, personal, and occupational contexts. It is my opinion that her depressive disorder is the direct result of her personality disorder. It is my opinion that the [veteran's] right knee disability is not a significant etiological factor in her depression. That is, it is my opinion that the [veteran] would still have the same degree of depression even if she did not have a right knee disability.

The preponderance of the medical evidence of record does not show that the veteran's depressive disorder is related to military service or to a service-connected disability. The veteran's service medical records are negative for any complaints, symptoms, or diagnoses of a depressive disorder.

While the veteran has a current diagnosis of a depressive disorder, there is no medical evidence of record that provides a diagnosis of a psychiatric disorder prior to December 1980, over 8 years after separation from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

There are multiple medical reports which discuss the etiology of the veteran's currently diagnosed depressive disorder. However, nearly all of them are based entirely on the veteran's reported history, which is shown to be inconsistent and unreliable. Without even pointing out the numerous contradictions in the veteran's statements within the evidence of record, the medical evidence itself shows that the veteran's reported history is unreliable at best, and intentionally deceptive at worst. A December 1980 VA medical report stated that the veteran was "very manipulative."

Two separate November 1999 private medical reports stated that the veteran's memory was impaired. A June 2005 VA medical report stated that there were discrepancies in the veteran's stories and that the veteran could not remember certain things. The examiner in that report indicated that these memory problems may have been deliberate. A June 2005 VA mental disorders examination report noted multiple discrepancies in the veteran's reported history and opined that the veteran "was not a reliable reporter" and that she had memory problems and confusion. A July 2005 VA medical report stated that the veteran had memory problems and was possibly delusional. An August 2005 VA medical report stated that the veteran had memory problems and was unable to answer most questions clearly. The veteran herself reported being forgetful in a September 2005 VA medical report. An October 2005 VA medical report stated that the veteran had a history of being delusional or vague. A January 2006 VA psychiatry report stated that the veteran had "a pattern of using manipulation and her health issues to get her needs met." A September 2006 VA mental health outpatient report stated that the veteran had difficulty providing an accurate history and reported some memory problems. A May 2007 VA psychiatry clinician report noted that the veteran was distorting the facts regarding her attempt to have her right leg amputated and that she had "been very manipulative." A May 2007 VA psychiatry report noted that the veteran reported conflicting histories and that the veteran said that these conflicts were "misinformation." A June 2007 VA psychiatry clinician report stated that the veteran had poor memory and possibly "some selective memory problems." A November 2007 VA psychiatry clinician report noted inconsistencies in the veteran's reported history. In a March 2008 VA mental disorders examination report, the veteran stated that "she lies too much" and the report noted significant impairment in short- and long-term memory. As such, the Board finds that the veteran's reported history is entirely unreliable. As such, any etiological evidence which is based exclusively on the veteran's reported history is not competent.

A June 2005 VA medical report stated that the veteran's depression began at the age of 12, prior to entering into military service. This nexus was based entirely on the veteran's reported history and thus is not competent.

A June 2005 VA mental disorders examination report stated that the examiner could not form an opinion about the etiology of the veteran's depressive disorder without resorting to mere speculation. Accordingly, the June 2005 VA mental disorders examination report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A second June 2005 VA medical report stated that the veteran's depression began prior to entering into military service. This nexus was based entirely on the veteran's reported history and thus is not competent.

July 2005 private and VA medical reports stated that the veteran's depressive disorder had been exacerbated by being told that her right leg might need to be amputated. This nexus was based entirely on the veteran's reported history and thus is not competent. In addition, the medical evidence of record shows that the veteran herself requested and pursued the amputation against the recommendation of her physicians, which further demonstrates that the reported history on which the etiological opinion was based is not consistent with the medical evidence of record.

A September 2005 VA medical report stated that the veteran's depression began at age 9, prior to military service, and was caused by her sexual conflict issues. Accordingly, the September 2005 VA medical report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A September 2006 VA mental health outpatient report stated that the veteran's depression began in childhood, prior to military service, and was caused by her gender identity issues. Accordingly, the September 2006 VA mental health outpatient report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A second September 2006 VA mental health outpatient report stated that the veteran was feeling depressed primarily due to difficulty dealing with chronic pain and financial stressors. This nexus was based entirely on the veteran's reported history and thus is not competent.

A November 2006 VA mental health outpatient report stated that the veteran's depression was mainly due to urinary problems and sex change surgery issues. Accordingly, the November 2006 VA mental health outpatient report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A January 2008 VA psychiatry clinician report stated that it was likely that the veteran's right knee disorder had contributed to her depressive disorder. However, the report specifically stated that the veteran's history and psychiatric treatment records had not been reviewed. Accordingly, this nexus was based on the veteran's reported history and thus is not competent.

A March 2008 VA mental disorders examination report specifically stated that the veteran's depressive disorder was not related to her right knee disorder and was instead due to "the psychosocial consequences of her personality disorder." This etiological opinion was based on an in-depth mental status examination and a review of the veteran's medical history. As this opinion was not based on the veteran's reported history, it is competent nexus evidence.

The veteran's statements alone are not sufficient to prove that her currently diagnosed depressive disorder is related to military service or a service-connected disability. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As she is not a physician, the veteran is not competent to make a determination that her currently diagnosed depressive disorder is related to military service or a service-connected disability. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the only competent etiological opinions of record either state that a nexus opinion could not be provided or that the veteran's depressive disorder is not related to military service or to a service-connected disability. As such, service connection for depressive disorder, to include as secondary to a service-connected right knee disability, is not warranted.

In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for a depressive disorder, to include as secondary to a service-connected right knee disability, is denied.____________________________________________

JOY A. MCDONALDVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

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Wow - This one does seem like a time waster to me also.

This vet was only AD for 2 months.

http://www4.va.gov/v...es4/0831035.txt

Citation Nr: 0831035 Decision Date: 09/12/08 Archive Date: 09/22/08DOCKET NO. 06-19 397 ) DATE ) )

On appeal from theDepartment of Veterans Affairs Regional Office in Sioux Falls, South Dakota

THE ISSUE

Entitlement to service connection for a depressive disorder, to include as secondary to a service-connected right knee disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

David S. Ames, Associate Counsel

INTRODUCTION

The veteran served on active duty from April 3, 1972 to June 5, 1972.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. The veteran's case comes from the VA Regional Office in Sioux Falls, South Dakota (RO).

The Board notes that the veteran was born as a male and has had a sex change and a legal name change to become a female. Accordingly, the veteran's medical records variously refer to her in both male and female terms, depending on the time frame of the medical records. The evidence of record clearly shows that the veteran prefers to be referred to as a female, and thus this decision is written in that context; however, accurate quotation of relevant medical records requires some references to the veteran as a male. These have been restricted only to direct quotations from the medical records themselves.

FINDING OF FACT

The competent medical evidence of record does not show that the veteran's depressive disorder is related to military service or to a service-connected disability.

CONCLUSION OF LAW

A depressive disorder was not incurred in, or aggravated by, active military service, nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication, letters dated in April 2005 and June 2005 satisfied the duty to notify provisions. Additional letters were also provided to the veteran in March 2006 and February 2007, after which the claim was readjudicated. See 38 C.F.R. § 3.159(b)(1); Overton v. Nicholson, 20 Vet. App. 427 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran's service medical records, VA medical treatment records, and indicated private medical records have been obtained. VA examinations were provided to the veteran in connection with her claim. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claim, to include the opportunity to present pertinent evidence.

Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, service connection may 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 established on a secondary basis for a disability which is shown to be proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310(a). 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) caused by a service connected disability or (b) aggravated by a service connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

The veteran's service medical records are negative for any complaints, symptoms, or diagnoses of a psychiatric disorder.

After separation from military service, in a November 1980 suicide note the veteran wrote "I realize I have done wrong but this is the only way out in style. You know I could not handle prison." A VA medical report dated the same day stated that the veteran attempted suicide with prescription medication and alcohol because "he 'couldn't take prison' (?) apparently he has been convicted of passing bad checks."

A second November 1980 VA medical report stated that the veteran was "[v]erbalizing feelings of depression, being no good, hating the world and other people, has had everything that money can buy but shall never be happy."

A December 1980 VA medical report stated that the veteran attempted suicide after she "was arrested for writing bad checks and was fearful that he was going to go to prison. He also had a suicide attempt five months ago. [The veteran] states he hears voices mostly female that tell him to die that life isn't worth living." The veteran reported that she left the Marines because "he didn't like being told what to do." The assessment was rule out paranoid schizophrenia, rule out drug related psychosis, and rule out depression.

A second December 1980 VA medical report stated that the veteran had not displayed much objective depressive symptomatology since admission and within the last few days. The examiner stated that the veteran was "very manipulative."

A third December 1980 VA medical report gave diagnoses of depression, passive aggressive personality disorder, and poly-drug abuse. The medical evidence of record shows that depression has been consistently diagnosed since December 1980.

A January 1984 VA medical report included a prescription for anti-depression medication.

A June 1998 private medical report gave an impression of depression.

A November 1999 private medical report stated that the veteran had depression and "[h]is memory is somewhat impaired, he doesn't know the name of the governor of Florida, he cannot subtract successive sevens from 100." The impression included "history of emotional problems and impaired memory."

A November 1999 private psychological report stated that the veteran "describes having had depression for years, but it has become worse, due to pain and to the suicide of his (now ex-) fiancée's son." On mental status examination, the veteran's memory was below average. The report noted that the veteran appeared to be in pain, but did not state what was causing the pain. The diagnosis was major depression, recurrent, and indications of memory problems.

A June 2005 VA medical report stated that the veteran's depression treatment "started at about age 12. He states his father sent him all over the country to psychiatrists 'sent him to the best of the best.'" The veteran's medical history included transgender disorder. The veteran stated "that he did not like authority figures, and that is why he didn't like the [M]arines. Felt he 'got into the wrong branch of the service.'" The examiner noted that the veteran "seems to have some discrepancies in her stories." The veteran reported that she "was born with partial uterus and that his penis is buried inside vaginal vault. He states that he has had 2 periods in the last month." On physical examination, the veteran had "a penis that is not in the vaginal vault, as she believes, but in fact is just difficult for her to reach secondary to pendulous abdomen." The assessment included transgender disorder and depression with history of suicide attempt. The examiner told the veteran that "her penis was not buried inside her vagina, but that the reason she could not reach it was due to her obesity." The examiner stated that the veteran could not remember contact information about numerous locations of previous medical treatment. The examiner stated that

I think that she has elected not to remember many of these since she has been told things by these people she does not want to hear or believe and that she would just as soon I didn't receive records from them since she wants me to believe she has a functioning uterus and vagina (stating she is hav[ing] vaginal bleeding).

A June 2005 VA mental disorders examination report stated that the veteran's claims file had been reviewed. The veteran stated that

she first became aware of "gender issues" when she was about 15 years of age. . . . she first took medicine for depression in 1972 or 1973. She indicated that she was given the medication Elavil. She also indicated then in the early part of the interview that she had attempted suicide three times during the mid 1970s, shortly after leaving the military. She stated that she felt that she was suicidal because of her knee injury. When asked to describe that in more depth, she said that "I could not do the things that boys would do and I wanted to die because of my knee." . . .

She indicated that she had worked for [her father] for about 27 years, and referenced the time period of 1972 to 1993, of only 21 years. In this latter part of the clinical interview, the veteran indicated that she had first taken Elavil in 1978, and also modified her report of her suicide attempts to indicate that her three suicide attempts had been over about an 11 year period from 1972 to 1983. . . .

The examiner formed the opinion that this veteran was not a reliable reporter during the clinical interview. The examiner did not have the impression that the veteran was deliberately deceptive, but that she had difficulty with memory and may have been confused.

This veteran's long history of living as a man while believing that she was a woman was certainly a long term stressor that could easily be responsible for her depressive symptoms. It was also possible that her knee injury contributed to or was possibly responsible for her depressive symptoms. The veteran's inconsistent reporting regarding such things as when she last worked, how long she worked for her father, how often she attempted suicide over one period of time, all indicate that she may not have been a reliable reporter. . . .

It was not possible to determine from the data available to the examiner whether her depression was likely due to her long term struggle with gender issues versus her knee injury. The examiner could not form an opinion without resorting to mere speculation.

A second June 2005 VA medical report stated that the veteran "reports the depression started 45 to 50 years ago, and she has felt depressed since. She realized she was a girl born in a male body. The veteran reports her sister told her that she was born with the genitalia of both a male and a female, but she was raised as a boy. She reports that she has always wanted to be a girl and in fact acted like a girl a lot during childhood." The veteran reported that "she had gender change surgery about four months ago and now has a penis and an inverted vagina, and she reports that she has periods monthly." The veteran reported having an orchiectomy several years before and could not recall the doctor who performed it.

In a July 2005 private medical report, a private examiner stated that

it is my medical opinion that more likely than not her DSM IV diagnosis of dysthymia has been exacerbated by recently being told by an orthopedic specialist her right leg may need to be amputated. Her right knee damage and subsequent replacement has been identified as a service connected injury. Therefore the exacerbation of her depression is also service connected in my opinion.

A July 2005 VA medical report stated that the veteran was facingan amputation or fusion in this right knee and neither one of those in my opinion is a good option. I don't know of anything to reconstruct the medial ligaments successfully. The [veteran] is out of my league as far as surgical corrections are concerned and I would try this brace and if it is not satisfactory, I would be more than happy to refer him to [another physician].

A second July 2005 VA medical report stated that the veteranwas seen by [a VA physician] just last week and at that time was told that she might need to have her leg amputated. As a result of this, of course, her depression has become worse, and she stated, "It really freaks me out to think about." . . . It sounds like depression is really more the issue for this veteran in terms of mood disorder. The veteran does have a great deal of difficulty with memory and also the questionable delusional material, regarding the vagina and regular monthly bleeding that she reports.

An August 2005 VA medical report gave assessments of cognitive disorder, not otherwise specified, gender identity disorder, dysthymia, and psychosis, not otherwise specified. The examiner stated that "[w]e did discuss her inability to answer most questions clearly and her lack of recall. She does identify that she has problems with her memory and has been having problems with her memory."

A September 2005 VA medical report stated that the veteran "has given this much consideration and desires right leg amputation." A September 2005 VA neuropsychological consultation report stated that the veteranstated that her sister informed the veteran that she was born as a hermaphrodite, and at age 3 months had surgery to establish her as a male. At approximately age 9, she started realizing that she felt more comfortable as a female. She became depressed and has experienced lifelong depression over her sexual conflict. She reported that she then had surgery to convert her into a female in 2003. . . .

She reported forgetfulness, in that she forgets what she has watched on television and forgets other important events in her life.

On mental status examination, the veteran's affect was depressed and she reported having depressed moods for "most of her life." The veteran "stated that she is much happier now that she is considered a female." The impression was[t]he veteran is a 52-year-old female who has had significant conflicts in her life, starting extremely early. She presents with a complex diagnostic picture reflecting the sum total of her many both unhappy and satisfying experiences. According to her report, she has had a lifelong depression that has kept her from significantly enjoying her life. Her conflicts have centered primarily around her sexuality. While her parents strongly guided her in male directions, she felt more comfortable as a female. It was not until midlife that she was able to decide that becoming a female was the correct path for her. She has developed personality patterns that involve manipulation and difficulty being direct in expressing her feelings and intentions. Thus, she tends to use her physical discomfort to get what she desires.

The diagnoses were major depressive disorder, recurrent, with psychotic features, gender identity disorder, and personality disorder, not otherwise specified. The only disability listed under Axis III was diabetes.

An October 2005 VA medical report stated that a VA surgeon "tried to tell [the veteran] that [above-knee amputation] is drastic but she was convinced that it should be done. I will cancel operation this week pending psych review." A subsequent VA psychiatry clinician note dated the same day stated that

t is my recommendation based on [the veteran's] history of being delusional or vague about male to female surgery that [she] should exhaust all nonsurgical options for knee pain before considering amputation. [The veteran] does not demonstrate a clear understanding of what if any male to female gender reassignment surgery has been done which makes one wonder about the level of [her] understanding regarding a surgery as serious as amputation.

A subsequent October 2005 VA medical reports stated that an amputation would not be performed until all departments were satisfied that the veteran understood the consequences of the operation.

An October 2005 VA medial report stated that the veteran "had requested surgery service to amputate the leg and this was not done."

In a January 2006 VA psychiatry report, the veteran reported that an increase in her prescription medication had helped her depression. She reported continued problems with her right leg, but that it was healing and she was glad she did not have the limb amputated. The assessment was cognitive disorder, not otherwise specified, gender identity disorder, dysthymia, and psychosis, not otherwise specified. The examiner stated that "[w]e did discuss the results of [the September 2005 VA neuropsychological consultation report] which did show that this veteran has a pattern of using manipulation and her health issues to get her needs met."

In a September 2006 VA mental health outpatient report, the veteran stated that she has been depressed since childhood due to gender identity issues. . . . Her depression apparently was exacerbated following a knee injury and subsequent discharge from the military in 1972. . . .

[The veteran] reports treatment for mental health problems since 1972 or 1973, although says she had emotional problems (depression) because of her desire to be a female since she was quite young. She says she has been cross dressing since she was around 8 years old, but she did not decide to pursue sex reassignment surgery until she was in her early 40's. She describes becoming very depressed after she joined the Marine Corps, received a severe knee injury in a fall and has had ongoing surgeries and pain for this injury limiting her physical activities. . . .

[The veteran] has difficulty proving an accurate psychiatric history, reporting some memory problems. She was hospitalized in the early 70's . . . after she overdosed on 375 Elavil "because I wanted to be a girl."

A second September 2006 VA mental health outpatient report stated that the veteran was "feeling depressed . . . primarily having difficulty dealing with stressors of chronic pain and financial stressors. Reports significant leg pain, chronic since accident."

In a November 2006 VA mental health outpatient medical report, the veteran reported "[p]hysically not feeling well, although she reports much of depression revolves around continued urinary problems and no clear plans for her completed sex change surgery."

A March 2007 VA psychiatry clinician report stated that the veteran "histrionically volunteers that they were trying to amputate her right leg last year but tells that she would not allow it saying 'I am not going to l[o]se my knee.' Point of fact is that [the veteran] was pushing to have the above the knee amputation done." The veteran reported that she sensed she was female at about the age of 5 and had been dressing as a female since that age. The examiner stated that the veteran had been "motivated to get her [medication] renewed and has been very manipulative. Judgment has been poor related to her attempts to get her leg amputated."

A May 2007 VA psychiatry clinician report stated that the veteran wasvague about when she started living as a female. She tells of wearing female clothes since she was a grade schooler and is indefinite about who knew about this. . . . [she] tells that she attended college for 5 years to get a masters in business. [The veteran] later says that this was misinformation since she has a degree that she got after only 3 years.

A June 2007 VA psychiatry clinician report stated that the veteran reported "that her memory is poor but there seems to be some selective memory problems so it is difficult [to determine] how organic this might be."

In a November 2007 VA psychiatry clinician report the veterantells she was 16 when her psychologist alcoholic mother committed suicide. This does not match with other parts of her story and she explains that her mother actually died in between 1989 and 1991 when she was in her 40's. She says her mother left when she was about 9 and she didn't see her again until she [w]as 19 or 20. This does not match with the encounter she tells of having with her mother when she was 16 and her mother was walking around in front of her without any top on. She clarifies that her mother did come to her boarding school and kidnapped her but the police came the next day to get her back to school. She thinks this occurred when she was 14 or 15. She tells me clearly that she does not lie and I explain that I am just trying to clarify how it is that her stories don't jive. . . .

She reviews that when she was about 15 and wanting so badly to become a girl, she overdosed on about 350 Elavil. She says her records indicate that she was committed to a WV State Mental Hospital at that time in 1980 but she has no recall of this. She reports she knew by the time she was 8 years old that she wanted to be a girl.

A January 2008 VA psychiatry clinician report stated that the veteran wanted the examiner to give her a statement that would provide an etiology relating the veteran's depressive disorder to her right knee disorder. The examiner agreed to make the following statement:

It is likely that the stress [the veteran] has experienced dealing with knee problems over the years has contributed to a depressive disorder in this [veteran.] The diagnosis of [major depressive disorder] is made from the symptoms and history [the veteran] has presented to me on Dec[ember] 21, 2007 and Jan[uary] 17, 2008. I will need to get a history of [her] life and psychiatric treatment before I can confirm that she does meet criteria for [major depressive disorder], recurrent.

A March 2008 VA mental disorders examination report stated that the veteran's claims file had been reviewed. The veteran reported receiving psychiatric treatment in 1980 at the facility where she was treated for her November 1980 suicide attempt. She was not able to recall any other psychiatric hospitalizations. The veteran reported receiving outpatient mental health care in multiple places, but could not provide further details. The examiner stated that in June 2005, the veteran

told the nurse practitioner that her depression started 45 to 50 years ago, and indicated that she has felt depressed since that time. That would mean that the [veteran's] depression started between 1955 and 1960. The [veteran] entered military service on April 3, 1972, and was discharged on June 5, 1972. The [veteran] was not clinically depressed at the time of her entry into military service. The [veteran] told me that her depression started one to two months after her discharge from the United States Marine Corps. However, an entry in the [veteran's] medical record dated February 12, 2008 that was written by her treating psychiatrist . . . indicates "The [veteran] volunteers that she lies too much. She then identifies it as an exaggeration of the truth." It is noteworthy that the [veteran] has a history of severe personality disorder. In reviewing her claim files, it is clear to me that her personality disorder includes borderline, antisocial, histrionic, and narcissistic features. Although the [veteran's] knee injury occurred while she was in military service, there is no documentation that the [veteran] had any complaints, treatment, or diagnosis of depression or any other mental disorder during military service. . . .

During the past year, the [veteran] has evidenced the characteristics of an individual with a personality disorder not otherwise specified. She has a sense of entitlement, displays rapidly shifting and shallow expression of emotions, shows self-dramatization, has an unstable sense of self, has affective instability due to a marked reactivity of mood (e.g., episodic dysphoria, irritability, or anxiety), and has a pattern of unstable interpersonal relationships characterized by alteration between extremes of idealization and devaluation. The [veteran's] personality disorder includes primarily borderline traits, but it also includes narcissistic, antisocial, and histrionic features. The antisocial element in the [veteran's] personality disorder involves her tendency to be deceitful or to manipulate others for her personal profit. As a result of her severe personality disorder, the [veteran] experiences significant difficulty in interacting with the world around her. She indicated that she has a depressed mood for most of the day on a daily basis. The [veteran] does have a depressive disorder, but her depressive disorder is clearly secondary to the psychosocial consequences of her personality disorder. That is, the [veteran's] personality disorder precludes her being able to maintain employment, and her personality disorder also prevents her from maintaining satisfying and fulfilling long-term social relationships.

On mental status examination, the veteran had significant impairment in her long-term and short-term memory processes. The diagnoses were depressive disorder, not otherwise specified, and personality disorder, not otherwise specified. The examiner stated that

it is my opinion that the [veteran's] depressive disorder is not caused by or a result of her service-connected right knee disability. It is my opinion that the [veteran's] depressive disorder is caused by the psychosocial consequences of her severe personality disorder. Her personality disorder causes her to experience serious impairment in social functioning and in terms of her social relationships. Her personality disorder also causes her to be unable to maintain substantial, gainful employment. The [veteran's] personality disorder involves an enduring pattern of perceiving, relating to, and thinking about the environment and herself, and this enduring pattern is exhibited in a wide range of social and personal contexts. Her personality traits are inflexible and maladaptive, and they cause her significant functional impairment and subjective distress. The [veteran's] personality disorder is characterological, and it should thus be considered non-service-connected in nature. Since her personality traits are so inflexible and maladaptive, she experiences considerable difficulty in a wide range of social, personal, and occupational contexts. It is my opinion that her depressive disorder is the direct result of her personality disorder. It is my opinion that the [veteran's] right knee disability is not a significant etiological factor in her depression. That is, it is my opinion that the [veteran] would still have the same degree of depression even if she did not have a right knee disability.

The preponderance of the medical evidence of record does not show that the veteran's depressive disorder is related to military service or to a service-connected disability. The veteran's service medical records are negative for any complaints, symptoms, or diagnoses of a depressive disorder.

While the veteran has a current diagnosis of a depressive disorder, there is no medical evidence of record that provides a diagnosis of a psychiatric disorder prior to December 1980, over 8 years after separation from military service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition).

There are multiple medical reports which discuss the etiology of the veteran's currently diagnosed depressive disorder. However, nearly all of them are based entirely on the veteran's reported history, which is shown to be inconsistent and unreliable. Without even pointing out the numerous contradictions in the veteran's statements within the evidence of record, the medical evidence itself shows that the veteran's reported history is unreliable at best, and intentionally deceptive at worst. A December 1980 VA medical report stated that the veteran was "very manipulative."

Two separate November 1999 private medical reports stated that the veteran's memory was impaired. A June 2005 VA medical report stated that there were discrepancies in the veteran's stories and that the veteran could not remember certain things. The examiner in that report indicated that these memory problems may have been deliberate. A June 2005 VA mental disorders examination report noted multiple discrepancies in the veteran's reported history and opined that the veteran "was not a reliable reporter" and that she had memory problems and confusion. A July 2005 VA medical report stated that the veteran had memory problems and was possibly delusional. An August 2005 VA medical report stated that the veteran had memory problems and was unable to answer most questions clearly. The veteran herself reported being forgetful in a September 2005 VA medical report. An October 2005 VA medical report stated that the veteran had a history of being delusional or vague. A January 2006 VA psychiatry report stated that the veteran had "a pattern of using manipulation and her health issues to get her needs met." A September 2006 VA mental health outpatient report stated that the veteran had difficulty providing an accurate history and reported some memory problems. A May 2007 VA psychiatry clinician report noted that the veteran was distorting the facts regarding her attempt to have her right leg amputated and that she had "been very manipulative." A May 2007 VA psychiatry report noted that the veteran reported conflicting histories and that the veteran said that these conflicts were "misinformation." A June 2007 VA psychiatry clinician report stated that the veteran had poor memory and possibly "some selective memory problems." A November 2007 VA psychiatry clinician report noted inconsistencies in the veteran's reported history. In a March 2008 VA mental disorders examination report, the veteran stated that "she lies too much" and the report noted significant impairment in short- and long-term memory. As such, the Board finds that the veteran's reported history is entirely unreliable. As such, any etiological evidence which is based exclusively on the veteran's reported history is not competent.

A June 2005 VA medical report stated that the veteran's depression began at the age of 12, prior to entering into military service. This nexus was based entirely on the veteran's reported history and thus is not competent.

A June 2005 VA mental disorders examination report stated that the examiner could not form an opinion about the etiology of the veteran's depressive disorder without resorting to mere speculation. Accordingly, the June 2005 VA mental disorders examination report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A second June 2005 VA medical report stated that the veteran's depression began prior to entering into military service. This nexus was based entirely on the veteran's reported history and thus is not competent.

July 2005 private and VA medical reports stated that the veteran's depressive disorder had been exacerbated by being told that her right leg might need to be amputated. This nexus was based entirely on the veteran's reported history and thus is not competent. In addition, the medical evidence of record shows that the veteran herself requested and pursued the amputation against the recommendation of her physicians, which further demonstrates that the reported history on which the etiological opinion was based is not consistent with the medical evidence of record.

A September 2005 VA medical report stated that the veteran's depression began at age 9, prior to military service, and was caused by her sexual conflict issues. Accordingly, the September 2005 VA medical report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A September 2006 VA mental health outpatient report stated that the veteran's depression began in childhood, prior to military service, and was caused by her gender identity issues. Accordingly, the September 2006 VA mental health outpatient report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A second September 2006 VA mental health outpatient report stated that the veteran was feeling depressed primarily due to difficulty dealing with chronic pain and financial stressors. This nexus was based entirely on the veteran's reported history and thus is not competent.

A November 2006 VA mental health outpatient report stated that the veteran's depression was mainly due to urinary problems and sex change surgery issues. Accordingly, the November 2006 VA mental health outpatient report does not provide medical evidence which relates the veteran's currently diagnosed depressive disorder to military service or to a service-connected disability.

A January 2008 VA psychiatry clinician report stated that it was likely that the veteran's right knee disorder had contributed to her depressive disorder. However, the report specifically stated that the veteran's history and psychiatric treatment records had not been reviewed. Accordingly, this nexus was based on the veteran's reported history and thus is not competent.

A March 2008 VA mental disorders examination report specifically stated that the veteran's depressive disorder was not related to her right knee disorder and was instead due to "the psychosocial consequences of her personality disorder." This etiological opinion was based on an in-depth mental status examination and a review of the veteran's medical history. As this opinion was not based on the veteran's reported history, it is competent nexus evidence.

The veteran's statements alone are not sufficient to prove that her currently diagnosed depressive disorder is related to military service or a service-connected disability. Medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. As she is not a physician, the veteran is not competent to make a determination that her currently diagnosed depressive disorder is related to military service or a service-connected disability. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Accordingly, the only competent etiological opinions of record either state that a nexus opinion could not be provided or that the veteran's depressive disorder is not related to military service or to a service-connected disability. As such, service connection for depressive disorder, to include as secondary to a service-connected right knee disability, is not warranted.

In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Service connection for a depressive disorder, to include as secondary to a service-connected right knee disability, is denied.____________________________________________

JOY A. MCDONALDVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs

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This is pretty pathetic wasting all the time. expense,,,,,, on a case of this nature for a 2 monther, when we have terminal vets waiting with more desperate claims...time mananagement and validity needs to utalized more. JMHO.

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  • HadIt.com Elder

The question in this claim no matter how bizzare was asking if the vet's depression was secondary to a SC knee injury. There is so much information about past history and suicide attempts, sex change, and unnecessary stuff that the water is so muddied the question is lost. The vet may have been depressed about the knee injury, but it is impossible to separate that from all the past and post history of two months of service. This is a vet who can't keep his/her mouth shut. She/he needed a lawyer or VSO immediately after discharge to pursue the case. I don't think this claim can be saved. You know if a vet falls down at the reception station and break his leg in three places he is SC. If he is depressed about having a bum leg then that is secondary. If he sticks to those facts he can win. If he drags in a bunch of other issues about childhood injury to the leg or childhood depression he loses most like.

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  • HadIt.com Elder

That's probably the most unusual BVA case I will ever read...

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Now thats someone the Goverment should of used there covert tests on.

That's a shame to waste all the resources they did on that claim.

Could of probably closed 10 other valid claims for the time this one took.

Sgt

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  • HadIt.com Elder

The length of time that he/she/whatever served should not enter into the discussion. IF DURING THAT TIME they received a service-connectable injury that led to a ratable disability.

And, as noted, if he/she had kept the he/she out of the picture long enough for the VA to actually decide IF the knee was service-connected and IF the depression resulted from the knee and not some OTHER etiology, then and only then the veteran should have prevailed.

Instead, the VA, trying to be "sensitive/understanding" or, dare I say "politically correct", spent an inordinate amount of time skirting around (or, maybe, Skating Around) the sexual/psychological/sociological implications raised as a matter of no consequence to the original claim, to the extent of deciding OTHER issues un-related to the issue(s) (knee/depression) legally raised.

I would wonder about filing a new claim, if, in fact there is evidence to support the knee/depression scenario?

just sayin...................

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  • How to get your questions answered...

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    All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.
    2. Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.
    3. Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.

    Leading to:

    Post clear questions and then give background info on them.

    Examples:

    • A. I was previously denied for apnea – Should I refile a claim?
      • was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?
    • B. I may have PTSD- how can I be sure?
      • I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?

    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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