Citation Nr: 1301072 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-46 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression, but other than generalized anxiety disorder. 2. Entitlement to a disability rating in excess of 30 percent for a generalized anxiety disorder. 3. Entitlement to total disability based for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1990 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran testified at a Board hearing at the RO in March 2011 before the undersigned Veterans Law Judge. A copy of the transcript of that hearing has been associated with the record on appeal. The issues were remanded for further development by the Board in May 2011 to afford the Veteran with a VA psychiatric examination regarding her depression and generalized anxiety claims and to determine her ability to maintain gainful employment. The Veteran was afforded a VA examination in August 2012 with a gynecological addendum in September 2012. The examiners provided the requested opinions and a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of entitlement to an increased evaluation for generalized anxiety disorder and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's depressive disorder had its onset in service. CONCLUSION OF LAW The criteria for service connection for a depressive disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for depression. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran asserts that she has a diagnosis of depression that is causally and etiologically related to service. She has a current diagnosis of depression, to include a June 2010 Axis I diagnosis of depressive disorder, NOS. Service connection is in effect for status-post hysterectomy due to caesarean section. The Veteran was afforded a VA examination in August 2012. The examiner performed a thorough psychiatric examination, reviewed the claims file, and determined that it is at least as likely as not that the Veteran's current psychiatric difficulties, to include depression, had its onset in service. The Veteran's depression is related to her hysterectomy in service and results in mild impairment in social or occupational functioning. The Board finds that the Veteran has competently testified as to the extent and onset of her depression and that the August 2012 VA examiner was competent and credible in determining that the Veteran's depression is related to her service-connected hysterectomy. There is no contrary evidence of record. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a depressive disorder is warranted as secondary to her in-service hysterectomy and service-connected status-post hysterectomy due to caesarean section. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a depressive disorder is granted. REMAND The Board notes that the evaluation of the same manifestation of a disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14. However, in Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that two psychiatric disabilities "could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability." Whether two diagnoses have overlapping manifestations is a factual finding. Amberman, 1381. Upon a grant of service connection, the RO must assign an evaluation in the first instance. Therefore, the Board has not provided a disability rating for the grant of depression as noted above. However, as the symptoms and manifestations of depression and general anxiety disorder may have overlapping manifestations, the Board finds that the Veteran's increased rating claim for generalized anxiety and her TDIU claim are inextricably intertwined with the issue of rating service connection for depression in the first instance. Therefore, the Board is remanding the issues for development in conjunction with the initial rating of depression. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran that she may submit lay statements from herself as well as from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, severity and manifestations of her service-connected psychiatric disabilities and the impact of the Veteran's psychiatric impairment on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. After physically or electronically associating any pertinent, outstanding records with the claims folder and conducting any additional development deemed necessary, determine if the Veteran's depression and generalized anxiety disorder have overlapping manifestations and symptoms and provide a disability rating for each individually or combined. 3. Then in light of the Federal Circuit's decision in Amberman readjudicate the appeal regarding entitlement to an increased or separate ratings for psychiatric disability and to a TDIU. If the claims remain denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs