Citation Nr: 1035846 Decision Date: 09/22/10 Archive Date: 09/28/10 DOCKET NO. 05-38 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disorder, to include as secondary to a service-connected seizure disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1942 to January 1944. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of October 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. A hearing before the undersigned Veterans Law Judge was held at the RO in January 2008. The hearing transcript has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's psychiatric disorder was caused by the service- connected seizure disorder. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for a psychiatric disorder, which he contends began in service and is related to his service- connected epilepsy. He reports that he has had "panic attacks" and depressed mood at least once a month for "all his adult life since" service, and he has indicated that the episodes are due to fear of the seizures. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Secondary service connection shall be awarded when a disability "is proximately due to or the result of a service- connected disease or injury." In addition, any increase in severity of a nonservice- connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. During the course of the appeal, VA amended 38 C.F.R. § 3.310 (effective October 10, 2006) to implement the decision in Allen v. Principi, 7 Vet. App. 439 (1995), which addressed the subject of the granting of service connection for the aggravation of a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The amended 38 C.F.R. § 3.310 institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran served from February1942 until January 1944, when he was medically discharged due to episodes of epilepsy in service. At the time of discharge, the Veteran reported no histories suggestive of a psychiatric disorder and examiners noted no findings suggestive of a psychiatric disorder. VA treatment records dated in 1964 reflect the Veteran's history of being afraid of "getting spells again." He indicated that he associated his seizures with reading which caused him to be fearful, anxious, and somewhat depressed whenever he had to do any intensive reading. These records note that the Veteran had been on Librium since approximately 1963. Subsequent VA and private treatment records reflect additional complaints of and treatment for anxiety and depression, and in December 2009, a VA examiner determined that the Veteran had major depression. A VA examiner has opined that the Veteran's depression is at least as likely as not the result of a head injury in service. See December 2009 VA examination record. VA has determined that service connection is not warranted for a head injury, however. See October 2004 rating decision. Thus, in May 2010, the Board requested another opinion to resolve whether it is at least as likely as not that the currently diagnosed depression began in service or is causally related to service or a service-connected disability. The requested opinion was provided by a VA staff psychiatrist in August 2010. The psychiatrist indicated that she had reviewed the available medical record and noted that the Veteran had been diagnosed with major depression, dysthymia, and anxiety disorder, that the Veteran was treated for seizure disorder while in the military, and that there was no record of treatment for depression while the Veteran was in the military. The psychiatrist also noted that it did "appear that [the Veteran] has been treated for depression for the majority of his adult life and that he had consistently stated that he related both his anxiety and depression to the onset of the seizure disorder." The psychiatrist reported that study has shown depression is more common in patients with seizure disorder than in the general population and that medications used in the treatment of seizure disorder may also cause problems in overall functioning which can lead to depression. The psychiatrist noted that the treatment records reflect the Veteran's histories that social stressors were worsening his depression. She believed that the worsening could be a function of epilepsy treatment, however. The psychiatrist further noted that the Veteran reported a history of traumatic brain injury in service and that depression was a common sequelae of traumatic brain injury. She stated that, given the Veteran's history and the noted incidences of depression in both seizure disorder and traumatic brain injury, it would be presumptive to state definitively that the depression resulted from the seizure disorder. However, she believed it was as likely as not that the depression is related to or caused by the seizure disorder. After review of the evidence, the Board finds that service connection is warranted for a psychiatric disorder based on the competent evidence that the Veteran's depression is secondary to the service-connected seizure disorder. The Veteran is competent to report his symptomatic history, i.e. his history of recurrent psychiatric symptoms since the in-service seizure and his history that the episodes are preceded by increased fear of seizure, and the Board finds his history credible. The Veteran's statements in this regard show a continuity of pertinent symptomatology to link his psychiatric disorder to his active duty service. Furthermore, the Board finds the August 2010 opinion by the VA staff psychiatrist that the Veteran's depression was caused by the seizure disorder is competent and probative. The Board notes that the VA psychiatrist cites the Veteran's history of an in- service brain injury in her opinion and acknowledges that service connection is not in effect for residuals of an in-service head injury. However, although the psychiatrist indicates that brain injury often results in depression, she does not base her ultimate opinion on the history of brain injury; rather, she solely links the depression to the service-connected seizure disorder and provides a rationale for this conclusion. As such, the Board finds the opinion is highly probative (see Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008)), and, in the absence of countervailing evidence, the Board finds that service connection is warranted. The Board notes that VA has a duty to notify and assist claimants for benefits. The decision above grants service connection, however. As such, there is no further need to discuss compliance with the duties to notify and assist. ORDER Service connection for a psychiatric disorder is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs