Citation Nr: 1454149 Decision Date: 12/09/14 Archive Date: 12/16/14 DOCKET NO. 12-12 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (referred to simply herein as a "psychiatric disability"). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran had active duty from December 2005 to March 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of the Veteran Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2012, the Veteran testified regarding this matter at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. FINDING OF FACT The evidence of record shows that Veteran's psychiatric disability clearly and unmistakably pre-existed service and was aggravated in-service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the Veteran's pre-existing psychiatric disability was aggravated by active duty service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.304(f), 3.306, 4.125 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection for a psychiatric disability is warranted because her depression existed prior to service and was aggravated while serving as a psychiatric/mental health nurse practitioner and officer in charge of a combat stress unit in Iraq. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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 also be granted for aggravation of a pre-existing injury suffered or disease contracted in line of duty. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. Aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening which existed not only during service and/or at the time of separation but also continued thereafter - is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). For defects, infirmities, or disorders not noted when a veteran is examined, accepted and enrolled for service, the burden lies with the government to show, by clear and unmistakable evidence, that the defect, infirmity, or disorder both pre-existed and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case the service department records, including the service treatment records (STRs) and service personnel records, do not include a report of medical examination in conjunction with the Veteran's entrance into service into active duty service for the period December 2005 to March 2007; nor is there any meaningful documentation recording her acceptance or enrollment to this period of service. As such, the Board finds that the presumption of soundness does not apply under the circumstances of this case. Indeed, the STRs appear not to be comprehensive, and do not reference any psychiatric complaints, treatment, or diagnosis during the period of active duty service. However, for the reasons described below, the competent and credible lay and medical evidence tend to support the Veteran's claim that here pre-existing psychiatric disability was aggravated by active duty service. An August 2011 letter from P.S.M., a Behavioral Health Officer who currently serves with the Oregon Army National Guard, explains that the Veteran was deployed under her command during their Iraq deployment. During this time the Veteran experienced difficult conditions, including mortar attacks. P.S.M. observed that during the deployment, the Veteran " . . . experienced weight gain, inability to sleep, increased irritability, short term memory problems, difficulty focusing, and intermittent feelings of hopelessness. " For these " . . . symptoms she was prescribed Bupropion." It was opined that the Veteran's " . . . deployment impacted her health and any increase should be recognized as combat related." In October 2011, the Veteran submitted a statement from an Army psychiatrist D.E.G., M.D., which noted the Veteran was deployed to Iraq in support of the combat stress control team while he was attached to the 82nd Sustainment Brigade as a psychiatrist. He stated the following: [The Veteran] was under intense pressure from her chain of command and became irritable, depressed, and unmotivated. She had been taking Lexapro 10mg up until that point and I augmented her treatment with bupropion SR 150mg twice daily which was helpful and well tolerated. At that time records were not yet being kept on AHLTA and so were not available for review. The Veteran was afforded a VA examination in January 2012. The Veteran reported she was treated by a psychologist for bereavement following her mother's death in 1989. She saw this psychologist off and on for a couple of years, possibly until 1992 and stated the psychologist referred to her condition as depression. Her primary care provider prescribed her antidepressants. She started to take Lexapro somewhere between 2002 and 2004, prior to deployment, because she was experiencing cardiac symptoms and anxiety associated with work-related stress. The examiner opined that the Veteran was a highly credible reporter and there was a history of depression and anxiety prior to deployment, and there was evidence of similar adjustment difficulties during military service, but there is no evidence that the pre-existing anxiety and depression were permanently aggravated because the Veteran does not report any current mental health symptoms and is currently not taking medication. During the November 2012 Board hearing, the Veteran stated the following: [O]n the last C and P exam I minimized everything because I'm a female Army and mental health profession and that's hard to say how I feel or what my symptoms are. I'm just - I lie about it or I minimize it because I don't want people to know. I work as a mental health professional so it's hard to acknowledge that you might have depression yourself. An April 2012 statement from psychiatric nurse practitioner L.L.W., A.P.R.N., stated she saw the Veteran from 2001 to 2005 for symptoms consistent with depressive disorder. The relevant current diagnosis was major depressive disorder, recurrent. She observed that the Veteran's depression was in remission prior to her deployment to Iraq in 2005. I saw her shortly after her return (March 2007) for medication management. She took Lexapro during her deployment which was continued after her return. She saw a psychiatrist in the Combat Stress clinic who started Wellbutrin, for an exacerbation of depressive signs and symptoms. She did not tolerate Wellbutrin well and it was discontinued, but she remained on Lexapro during her deployment, as her symptoms remained, including depression, anxiety and irritability. A May 2012 statement by a psychiatrist, G.C.P., M.D., states that the Veteran was "seen and treated at this facility with an Axis I diagnosis of Major Depressive Disorder prior to her Active Duty in 2005. I have also seen her since her return from active duty and the illness persists and in fact was intensified by her service." The Veteran further submitted a December 2012 private psychological evaluation from psychiatrist R.E.E., M.D. This was a comprehensive evaluation that included a detail review of the Veteran's history, including numerous medical records. The Veteran was diagnosed with posttraumatic stress disorder, chronic; and major depressive disorder, recurrent, moderate. The examiner specifically associated her psychiatric symptoms to the traumatic experiences of active duty service in Iraq. Based upon the evidence of record in conjunction with the applicable laws and regulations, the Board finds the evidence for and against the Veteran's service connection claim at least in relative equipoise. While the January 2012 VA examiner ultimately determined that there is no evidence that the pre-existing anxiety and depression were permanently aggravated, most of the medical evidence points to the contrary. Various Mental health professionals who evaluated the Veteran before, during, and after her deployment all recount a similar narrative: that the traumatic experiences in service caused a chronic increase in the Veteran's preexisting psychiatric symptoms that has continued since. The Board notes that the December 2012 private psychological evaluation also noted a diagnosis of PTSD. PTSD has not been dissociated from the Veteran's major depressive disorder or military service. To the extent that such a disorder exists, the Board finds that the PTSD is either a manifestation/symptom of the Veteran's existing psychiatric disability or is related to her military service. Resolving reasonable doubt in the Veteran's favor, the Board finds the Veteran has a pre-existing psychiatric disability that was chronically aggravated in-service. See 38 U.S.C.A. § 1110, 1153; 38 C.F.R. §§ 3.303, 3.304(f), 3.306, 4.125; see also M21-1, Part III, 5.14(d). Accordingly, service connection for a psychiatric disability must be granted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). As the Board is granting in full the benefit sought on appeal, any error with respect to the duties to notify or assist was harmless and will not be further discussed. ORDER Service connection for aggravation of a pre-existing psychiatric disability is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs