Citation Nr: 1304967 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-31 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a major depressive disorder, a mood disorder, a generalized anxiety disorder, dysthymia, a nervous disorder, schizoaffective disorder, and a bipolar disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Tenner, Counsel INTRODUCTION The Veteran served on active duty from May 1956 to May 1958. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO denied reopening a claim for service connection for dysthymia and a generalized anxiety disorder. In a May 2011 decision, the Board denied reopening the Veteran claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the parties to the appeal filed a Joint Motion for Remand. The Court granted the motion that same month and vacated and remanded the matter back to the Board. In an April 2012 decision, the Board reopened the claim and remanded it the RO for additional development. In August 2012, the Board requested a medical expert opinion from a VA psychiatrist, pursuant to its authority under 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901. In October 2012, the Board received an opinion from a VA psychiatrist. In November 2012, it provided a copy of the opinion to the appellant and his representative and provided them 60 days to review the opinion and submit any additional evidence or argument. In January 2013, the Veteran's representative submitted a Written Brief Presentation. Accordingly, the case is once again before the Board ready for appellate review. FINDINGS OF FACT 1. After affording the benefit of the doubt, the Veteran's diagnosed Major Depressive Disorder had its onset during his active duty service. 2. The Veteran does not have bipolar disorder or schizoaffective disorder. CONCLUSION OF LAW The criteria for service connection for Major Depressive Disorder have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Before addressing the merits of the issues of the claim on appeal, the Board must first discuss whether VA has met its duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). As the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder is granted herein, any deficiencies with regard to VCAA for this issue are harmless and non-prejudicial. II. Background The Veteran contends that he had symptoms of a psychiatric disorder while in service that went untreated; that he was treated within three months of his discharge from service in Manatee, Puerto Rico, for a psychiatric disorder. He recalls that he was treated by a Dr. Nicholas Mendez. He says he his psychiatric treatment has continued to the present time. In addition to his own testimony and written statements to that effect, he has obtained statements from relatives and acquaintances, regarding their observations that the Veteran experienced behavioral changes beginning in service, and which have continued to the present time. Service treatment records did not show any psychiatric abnormalities during service, and his psychiatric status was noted to be normal on the separation examination. On a claim for VA benefits filed in October 1979, the Veteran did not mention any psychiatric treatment or abnormality. The contemporaneous medical evidence first shows the presence of psychiatric complaints in January 1987, when he was seen at a VA facility complaining of marked anxiety and sadness. At that time, he provided a history of having been nervous several years ago, and that he had been treated with Librium while in New York. The impression was severe depression with anxiety. On a mental hygiene clinic consultation, he complained of depression which he said developed during his Army service. He felt nervous, irritable, with insomnia and crying spells, and had been unable to work for six years. He also referred to an episode in Korea where he was hit with a carbine over the head, after which he had begun experiencing headaches. He had been given no medication for depression, but had been given Librium for anxiety. In a treatment note dated in July 1988, he dated all of his problems to the incident in which he had been hit in the head with a carbine. Efforts to obtain records of treatment prior to January 1987 were unsuccessful. The Veteran was informed that records of his claimed treatment in Manatee shortly after service were no longer available. However, in a letter dated in September 1992, M. Casanova, M.D., indicated that although records for that time period were not available, a Dr. Nicolas Mendez worked at the clinic at the time during which the Veteran claimed to have been treated by him. The Veteran stated that he moved to New York in 1964, at which time he was treated at Kings County Hospital in about 1964 or 1965. When attempting to obtain these records in December 1991, the Hospital responded that records were generally not kept after six years, and that there were no records pertaining to the Veteran. However, the file does contain records from the San Juan City Hospital, which document the Veteran's hospitalization from November to December 1967, and again from January to June 1968, for evaluation of chest pain, and which report a history pertaining to treatment at Kings County Hospital. In November 1967, the Veteran stated that he had been doing well until three months ago when he had experienced chest pains. He had been admitted to Kings County Hospital for evaluation, and he stated that the doctor had told him that he had not had a heart attack, that his diagnosis was "cardiac angina," and that he had been discharged on "Librium." He had returned to Puerto Rico, run out of medication, and was again hospitalized with shortness of breath, chest pain, rapid respirations, and dizziness. He was in mild distress secondary to chest pain, and appeared somewhat nervous and apprehensive yet cooperative. In a history provided during the hospitalization from January to June 1968, the Veteran again related that he had been hospitalized in Kings County Hospital six months earlier for severe chest pain. Neither of these hospitalizations in Puerto Rico City Hospital reported any psychiatric diagnosis, or indicated that a psychiatric diagnosis had been involved with the Veteran's treatment at Kings County Hospital. The Veteran states that he has been treated by the VA in Orlando since 1986. Records from that facility show that the Veteran was initially seen in January 1987, complaining of marked anxiety and sadness. He stated that he had been nervous several years ago, and had been treated with Librium while in New York. The impression was severe depression with anxiety. On a mental hygiene clinic consultation, he complained of depression which he said developed during his Army service. He felt nervous and irritable, with insomnia and crying spells, and had been unable to work for six years. He also referred to an episode in Korea where he had been hit with a carbine over the head, after which he had begun experiencing headaches. He had been given no medication for depression, but had been given Librium for anxiety. In a treatment note dated in July 1988, he dated all of his problems to the incident in which he had been hit in the head with a carbine. Subsequent records show his continued treatment with diagnoses of depression, anxiety and dysthymia noted on various occasions. In addition to personal hearing testimony and several written statements from the Veteran, the file contains written statements, received in September 1992, from siblings and other acquaintances of the Veteran, who related their observations of the Veteran's psychiatric condition since service. The lay statements include a letter from a fellow serviceman of the Veteran, J. R. B., wrote that he observed that the Veteran had been sick in service due to his nerves. He noticed this on the trip back from Korea to the U.S. In addition, two siblings of the Veteran and another friend wrote that they had observed that the Veteran's emotional problems since his return from service. All three recalled him receiving mental health treatment beginning at the end of 1958. The file also contains the report of an examination in November 1991 by A. R., Ph.D., pursuant to a request from a state disability determinations board, at which time the Veteran stated that his military service had affected his nerves. He reported inpatient treatment for a nervous condition in 1964 and 1965. The examiner diagnosed major depression with psychotic features, but did not provide any opinion regarding the etiology or time of onset. Similarly, a VA examination in February 1995 noted the Veteran appeared to have some anxiety/depression, did not mention etiology or onset. On a VA examination in September 1995, the Veteran stated that he had been hit in the head with a carbine in service, which had affected his psychological functioning. He reported that he had been seen by a psychiatrist in service. Subsequent to his discharge, he had been seen by a general practitioner, Nicolas Mendez, M.D., who prescribed medication for a nervous condition, and he had been on medication until the current time. He related that at Kings County Hospital, in 1962, he had been prescribed Librium and sleep medication. On mental status examination, he was observed to be preoccupied with events in service. The diagnosis was major depression. Again, no opinion regarding the etiology or onset of the diagnosed disability was provided. In August 1997, the Veteran underwent a VA psychiatric examination by an examiner who reviewed the claims file. The Veteran stated that he had had a nervous condition since 1958, precipitated by events in service, including being slapped on the face on several occasions, a change of occupational specialty, having to sweep the street, and being hit on the head by a carbine. He stated that these events and others had contributed to a feeling of nervousness and despair which had persisted to the current date. He explained that the incident involving the carbine had been accidental, and that the individual involved had apologized after the event. He stated that he had been treated from 1958 to the present time. On examination, the Veteran appeared dysthymic. The examiner concluded that it was highly unlikely that the Veteran's emotional difficulties stemmed from an attack with a carbine while in service, and it was highly unlikely that his current situation was in any way connected to that incident. It was not clear, however, whether his current dysthymic condition was present in service or within one year of service. The letters in support by family members indicated that he was experiencing some psychological dysphoria shortly after his separation from service, but were not consistent with his current diagnosis of dysthymia. Although it was unlikely that the Veteran's current condition of dysthymia was present at the time of discharge, based on history of quite different symptomatology at that time, it was impossible to determine precisely in the absence of records from that time. In a July 2003 and October 2003 letters, the Veteran repeated his contention that he was treated for a nervous condition two months following his discharge from service but that records of treatment were not available. He was hospitalized in April 2009 and diagnosed with bipolar disorder with psychotic features and a cognitive disorder. In letters dated in April 2010, S.C. and M.R. indicate that they have known the Veteran for the past 40 years, and that he has been suffering from mental problems since that time. An August 2010 VA treatment record noted diagnoses of schizoaffective disorder, bipolar type and a cognitive disorder, described as multifactoral included vascular, degenerative, and age-related. In February 2012, the Veteran's private physician, H. P. D., M.D. stated that he treated the Veteran since 2011 for several cardiac conditions. He noted that he was anxious and on anti-anxiety medication. The Veteran underwent a VA examination in May 2012. The May 2012 VA examiner considered: (a) the Veteran's consistent statements that his acquired psychiatric disorder occurred within months of service discharge; (b) that the current Medical Director of the clinic in Puerto Rico where he claimed to have received treatment confirmed that he would have received treatment where he claims he did and the physician whom the Veteran claimed to have treated him used to work there, although there are no medical records to corroborate this; (c) that the earliest documentation of psychiatric treatment dates back to the 1980s; (d) that a number of friends and family members provided statements indicating that he had changed after service; and, that (e) his service treatment records including a discharge physical were absent for any psychiatric complaints. Considering, these main factors, the VA examiner indicated that while the Veteran "has clearly been suffering from mental illness, which is currently best qualified as [s]chizoaffective disorder [and] [b]ipolar type . . . for several years, there is no way to state with any great certainty that his current condition occurred in service or because of his service without resorting to mere speculation." In October 2012, a VA psychiatrist reviewed the claims file. The examiner acknowledged that there were several psychiatric diagnoses rendered over the years. He noted that depression and anxiety predominated until relatively recently when psychotic and cognitive symptoms arose. The examiner went to great pains to reject the current diagnosis of Schizoaffective Disorder, finding instead that the former diagnosis Major Depressive Disorder was more accurate. His anxiety symptoms were subsumed by this diagnosis. Moreover, he found that the Veteran did not meet the diagnostic criteria for Bipolar Disorder as he had no history of mania or hypomania. The examiner also concluded that current psychosis and cognitive decline were unrelated to Major Depressive Disorder. Instead, he found that they were related to stroke or dementing process or to Parkinson's disease. Finally, he rejected the theory that a blow to the head with a carbine rifle in service resulted in current disability, reasoning that evidence of traumatic brain injury or post-traumatic stress disorder were not found in the record. Turning to the etiology of the current Major Depressive Disorder, the examiner provided two opinions. First, he noted that it was less likely that the current disability was related to service when considering the claim solely on the medical evidence. In this respect, the examiner acknowledged that psychiatric symptoms were not demonstrated in service or upon service separation and that the first post-service treatment for a psychiatric condition was not until the 1980's, many years following service discharge. However, after considering the numerous lay statements submitted in support of the claim, the examiner took such as prima facie evidence to indicate the onset of mental disturbance during or immediately following his period of active service. The examiner found that if those lay statements were factual and accurate, then there was no choice but to find a service connection. III. Analysis 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"). For certain chronic disorders, including psychoses, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Here, the Board has reviewed the evidence of record and notes that there is evidence both for and against the claim. First, it is undisputed that the Veteran did not seek treatment for a mental health condition during service. It is also undisputed that there are no medical documentation showing treatment for a psychiatric condition for many years following service discharge. Records of the alleged earlier treatment have been destroyed as routine course of business. These facts, while not constituting negative evidence, are nevertheless factors that the Board must consider in determining the most likely etiology of his psychiatric disability as well as the credibility of the lay evidence. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Turning to the medical opinion evidence, here, it appears that the May 2012 VA examiner was unable to provide a more definitive opinion merely because there are no medical records documenting psychiatric treatment before the 1980's. The Board notes however, that the fact that a Veteran does not obtain treatment or produce evidence of such for a period of time following service is not automatically detrimental to their claim. Here, the Veteran's assertions that he was anxious and nervous in service are deemed credible. The Board has found no evidence in the record that contradicts his statements or makes them less trustworthy. He has credibly explained why post-service records are unavailable and has presented supporting statements from long-time friends, family, and service colleagues who verify that he has a history of psychiatric symptoms dating back to his time in the military. Hence, the Board finds that the credible lay statements may be used to support the assertion of in-service incurrence of a psychiatric disability and continuity of psychiatric symptoms since service discharge. In this respect, the Board notes that it is "symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997). Therefore, failure to seek medical treatment for years following service is not dispositive of the issue of continuity of symptoms. In addition, the May 2012 VA examiner did not provide an explanation as to whether the inability to provide a more definitive opinion was the result of a need for additional information or that she had exhausted the limits of all current medical knowledge in providing the answer to that particular question. In Jones v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. Id. at 390. It must also be clear that the physician has considered "all procurable and assembled data." Id. (citing Daves v. Nicholson, 21 Vet. App. 46 (2006)). Finally, the physician must clearly identify precisely what facts cannot be determined. Id. The opinion included with the May 2012 examination report was defective in these respects. The examiner's determination that there was no way to state with any "great certainty" that the Veteran's disorder occurred in service, was also not the correct standard of review for establishing service connection. Rather, it need only be shown that it is "at least as likely as not" that the Veteran's disorder had its onset during service or is otherwise causally related to his service. See 38 U.S.C.A. § 5107(b) ("when there is an approximate 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."). For these reasons, the May 2012 VA examination opinion is afforded only limited probative weight. Turning to the October 2012 VHA opinion, the Board acknowledges that the examiner struggled with the fact that the medical records were silent for treatment for symptoms of a psychiatric condition both in service and for several years following service discharge. The October 2012 VHA opinion, however, is persuasive and afforded significant probative weight for several reasons. First, the examiner concludes that if the lay evidence regarding the initial onset of psychiatric symptoms is credible, then the current disability is related to service. As noted, the Board, herein, finds the lay evidence credible. As such, there is competent medical opinion evidence supporting the claim. The opinion is also persuasive because the examiner clarified the nature of the current psychiatric disabilities and distinguished those symptoms or conditions that were not associated with the underlying diagnosis of Major Depressive Disorder. See generally 38 C.F.R. § 4.125(b) (providing that if the diagnosis of a mental disorder is changed, the rating agency must determine whether the new diagnosis represents a progression of the prior diagnosis, a correction of an error in the prior diagnosis, or a development of a new and separate condition). The examiner provided a detailed discussion and analysis explaining that the Veteran's symptoms best fit the diagnostic criteria for a diagnosis of Major Depressive Disorder. The Board finds the October 2012 VHA examiner's reasoning and analysis persuasive. There are no other competent opinions with this same level of detail that refutes these findings. Based on such, after affording the Veteran the benefit of the doubt, the Board concludes that Major Depressive Disorder was incurred during active military service. The Board further finds that the Veteran does not have bipolar disorder or schizoaffective disorder. ORDER Service connection for Major Depressive Disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs