Citation Nr: 0813405 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 98-01 827A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1990 to May 1991 with subsequent inactive duty for training with the U.S. Marine Corps Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from October 1997 and May 2002 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which, in pertinent part, denied entitlement to service connection for an acquired psychiatric disorder. In September 2003, the veteran provided testimony at a videoconference hearing before the undersigned. A transcript of this hearing is of record. The veteran's appeal was previously before the Board in June 2000, May 2004, and June 2007 at which times the Board waived the requirement for a substantive appeal and remanded the case for further action by the originating agency. The case has been returned to the Board for further appellate action. In an August 2007 rating decision, the Appeals Management Center granted service connection for headaches and flu-like symptoms including joint pain, weakness, and fatigue as an undiagnosed illness. Evaluations of 30 and 10 percent were assigned, respectively, effective January 23, 1997. The grant of service connection constitutes a full grant of benefits of these claims. Therefore, they are not before the Board and are not addressed in this decision. FINDING OF FACT The veteran has major depressive disorder that was incurred in active duty service. CONCLUSION OF LAW Service connection for the veteran's major depressive disorder is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.317(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Legal Criteria Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability." A "qualifying chronic disability," includes (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The veteran contends that he incurred a psychiatric disability as a result of his active duty service in Southwest Asia. Service records show that the veteran served in Southwest Asia from December 1990 to April 1991. There is no evidence of depression or any other psychiatric condition during the veteran's active duty service. In March 1991, the veteran was noted to have been examined within the past 12 months and found to be physically qualified for separation from active duty with no defects noted. Records from the veteran's inactive reserve service show that he reported undergoing psychiatric treatment in March 1995. The post-service medical evidence shows that the veteran first complained of depression in July 1994 to his private physician. He stated that he was sent home from Marine summer camp due to depression. The doctor suggested that the veteran enter psychiatric emergency care as he reported being suicidal. Thereafter, the veteran was noted to have a history of being bipolar in February 1996 and a history of depression in May 1996. Upon VA examination in April 1997, the veteran reported having bouts of depression from time to time with a very serious episode approximately two years ago. He also stated that he did not have any bouts of depression during his active duty service in the Persian Gulf. The diagnosis was major recurrent depressive disorder. The veteran was provided another VA examination in January 2006. After reviewing the claims folder, noting the veteran's service in the Gulf War and reserve service before and after the war, and examining the veteran, the examiner concluded that it was more likely than not that the veteran's major depressive disorder began while the veteran was in service in "the early 1990s." The examiner noted that the veteran's statements were corroborated by his service records and that he had reported being afraid during his active service due to the possibility of chemical attacks. The pertinent diagnosis was major depression. On VA general medical examination in June 2006, it was reported that the veteran had had symptoms of post-traumatic stress disorder (PTSD) since 1991. The impressions included "PTSD/Depression" with symptoms noted during "service time" in March 1995. A current PTSD screen was found to be positive. During the veteran's most recent VA psychiatric examination in November 2007, the examiner concluded that the veteran did not have a current psychiatric condition and there was no evidence to support diagnoses of PTSD or depression. The veteran had reported unpleasant and stressful experiences during active duty service, but no circumstances of a traumatogenic nature. Analysis Initially, the Board notes that the veteran has alleged that his psychiatric condition is the result of an undiagnosed illness. His symptoms, however, have been attributed to a diagnosed condition, specifically, major depression. Therefore, the veteran's psychiatric complaints may not be characterized as signs or symptoms of an undiagnosed illness or a medically unexplained chronic multi-symptom illness. 38 C.F.R. § 3.317(a) (2007). Turning to the elements necessary for service connection for a diagnosed illness, the record clearly shows the presence of a current disability. While the most recent VA examiner concluded that there was no evidence to support a diagnosis of depression, the presence of a chronic disability at any time during the claim process satisfies the requirement for a current disability, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board also notes that the veteran has reported that his depression occurred because of his active duty service in Southwest Asia. While the service medical records do not document treatment for this condition, the veteran is competent to report symptoms during active duty. Resolving reasonable doubt in his favor, the Board finds that the second element necessary for service connection-an in- service incurrence-is demonstrated. Finally, the record contains competent medical evidence of a nexus between the veteran's current disability and his active duty service. The January 2006 examiner concluded that it was more likely than not that the veteran's major depressive disorder began while the veteran was in the service in the early 1990s. This opinion was rendered following complete review of the veteran's claims folder and after an examination of the veteran. Accordingly, service connection is warranted for an acquired psychiatric disability, namely major depression. ORDER Entitlement to service connection for a psychiatric disability, major depressive disorder, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs