Citation Nr: 1136826 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 05-10 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from October 1963 to March 1972, including service in Vietnam from December 1967 to December 1968. This case was remanded by the Board of Veterans' Appeals (Board) in May 2010 to the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada (RO) for additional treatment reports, which were subsequently added to the claims file. The Board has recharacterized the issue of entitlement to service connection for posttraumatic stress disorder (PTSD) to service connection for a psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). FINDINGS OF FACT 1. All known and available service medical records have been obtained; the Veteran has been advised under the facts and circumstances of this case as to the evidence which would substantiate his claim for service connection for a psychiatric disability; and he has otherwise been assisted in the development of his claim. 2. The Veteran was diagnosed during the appeal period with a depressive disorder that was causally related to service. CONCLUSION OF LAW The criteria for service connection for a depressive disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. § 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App"). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veteran seeks service connection for a psychiatric disability. He has contended, including at his March 2006 personal hearing, that he incurred a psychiatric disability as a result of being subjected to rocket and mortar fire while in Vietnam. As the evidence on file shows a depressive disorder due to service, service connection is warranted. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). In order to establish service connection for the claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). There were no psychiatric complaints or findings on the Veteran's October 1963 enlistment medical history and medical examination reports. It was reported in September 1965 that the Veteran had been involved in an automobile accident and had total amnesia; the impression was immature personality. There were no psychiatric complaints or findings on separation evaluation in February 1972. The Veteran's service personnel records reveal that he was awarded a Bronze Star Medal for outstanding meritorious service in connection with ground operations against a hostile force in the Republic of Vietnam during the period from April to November 1968. He was part of Vietnam Counteroffensive Phase III, IV, V, and VI and the TET Counteroffensive. Treatment reports from E.J. Lynn, M.D., dated from September 1991 to September 1992 include a diagnosis of adjustment disorder with depressed mood. VA treatment reports for May 2002 reveal that the Veteran had sleep disturbances with flashbacks and nightmares. The diagnosis was possible mild PTSD or bipolar syndrome. The Veteran filed an informal claim for service connection for PTSD in October 2002 and a formal claim in January 2003. According to an April 2003 statement from C.D. DeGraff, Ph.D., the Veteran had been seen for counseling on an intermittent basis from January 2000 to April 2002 for marital and career dissatisfaction. He had symptoms of moderate depression, emotional ambivalence, and malaise. According to a May 2003 Vet Center report, the Veteran had been subjected to rocket and mortar attacks in service and his symptoms indicated that he met the criteria for a diagnosis of PTSD. A VA evaluation, which included review of the claims file, was conducted in November 2003. It was noted that the Veteran had told Dr. Lynn that he did not feel that he had PTSD and that the Veteran had not reported any combat memories that continued to cause distress. No diagnosis was provided because the Veteran did not report enough symptomatology to meet the PTSD criteria. Also on file are Vet Center treatment reports from September 2004 to May 2006, which show that the Veteran was receiving counseling for his psychiatric problems. A VA psychologist concluded in outpatient treatment records in July 2005 that the Veteran had depression and PTSD symptoms. The Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in March 2006 that he had a psychiatric disorder as a result of being subjected to enemy rocket and mortar fire in service and of seeing dead bodies. VA treatment reports dated from December 2006 to December 2008 contained the diagnosis of chronic PTSD. The VA psychologist who signed the July 2005 report reviewed the claims file and examined the Veteran in March 2010. The Veteran was working full time and had been married to his second wife for 15 years. He noted that his PTSD symptoms had resolved for the most part. It was reported that although the Veteran met the stressor criteria by being exposed to enemy rocket and mortar fire, the Veteran's score on the Mississippi Scale for combat-related PTSD was below the recommended cutoff score of 107 points and was not consistent with a diagnosis of PTSD. The examiner concluded that the Veteran's symptoms were neither sufficient nor severe enough to meet the criteria for PTSD. No Axis I diagnosis was made. According to a May 2011 statement from the VA psychologist who evaluated the Veteran in July 2005 and March 2010, while the Veteran's PTSD symptoms were not severe enough in July 2005 to warrant a diagnosis of PTSD, the July 2005 diagnosis of depression and subsequent treatment were due to the Veteran's fear of hostile military or terroristic activity during service in Vietnam. In McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007), the Court stated that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim." Because there is medical evidence that the Veteran had a depressive disorder due to service when evaluated by VA in July 2005, which is during the pendency of his claim for service connection for a psychiatric disability, service connection for a depressive disorder is warranted under McClain even though no psychiatric disorder was diagnosed on subsequent VA evaluation in March 2010. ORDER Service connection for a depressive disorder is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs