Citation Nr: 1305022 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 07-36 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder or depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran served on active duty from November 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for an acquired psychiatric disorder. The Board notes that the Veteran's acquired psychiatric disorder has been variously diagnosed as depressive disorder, NOS (not otherwise specified), mood disorder, NOS, bipolar disorder, NOS, and bipolar disorder with psychotic features. See VA medical treatment records dated January 2007, March 2007, September 2011, and November 2012 VA examination report. In this regard, the Board considers the Veteran's claim for service connection for an acquired psychiatric disorder as encompassing all psychiatric disorders evident in the record. Clemons v. Shinseski, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). In October 2011, the Board denied service connection for an acquired psychiatric disorder. The Veteran appealed the Board's October 2011 decision to the Court of Appeals for Veterans Claim (Court). Following a March 2012 Order which incorporated a Joint Motion of the Parties to vacate the Board's decision regarding the issue of service connection for an acquired psychiatric disorder, the Board Remanded the appeal in October 2012. FINDING OF FACT The VA examiner opined that the Veteran's current acquired psychiatric disorder, for which a current diagnosis of mood disorder, NOS, was assigned, was first manifested as depression and anxiety beginning at discharge and continuing chronically after that time, although the Veteran did not seek medical treatment until nearly three months after service discharge. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, for which a current diagnosis of mood disorder NOS has been assigned, are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that service connection is warranted for an acquired psychiatric disorder based on service incurrence. In this decision, the Board grants the claim for service connection for an acquired psychiatric disorder. In view of the Board's decision to grant the Veteran's claim, a discussion of VA's duties to notify and assist in regards to that claim is not necessary, since further action to address the duty to notify or assist as to the claim for service connection would not be in the Veteran's interest. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Applicable Law Under applicable law, service connection is granted if the evidence establishes that coincident with his service, the Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, such as a psychosis, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis During the Veteran's service, she sustained an injury to the right knee. She was placed on a limited physical profile to prevent additional injury, but the knee pain did not resolved. A Physical Evaluation Board (PEB) convened in August 2006 recommended discharge due physical unfitness, and the Veteran was discharged effective in late October 2006. No notation of depression, anxiety, trouble sleeping, or other symptom of a psychiatric disorder was noted during the PEB examination, and the Veteran denied such symptoms on the history she completed. In March 2012, a Joint Motion of the Parties vacated the Board's October 2011 decision denying service connection for an acquired psychiatric disorder, and issued a remand back to the Board, consistent with the terms of the Joint Motion. The Joint Motion referenced records of treatment for an acquired psychiatric disorder during the one year period after the Veteran's discharge from service, noting, in particular, that it was not clear whether the Veteran's variously diagnosed acquired psychiatric disorder and symptoms were manifestations of a psychosis. As noted above, a psychosis may be presumed related to a period of service if manifested within one year following service. Following the Veteran's service discharge in late October 2006, the Veteran sought service connection for a "nervous condition" in December 2006. She underwent VA examination in January 2007. At that time, she reported chronic depression and anxiety. In February 2007, she sought treatment for depression and anxiety, and medication was prescribed. She required urgent care in February 2007 when she had an acute anxiety attack. Treatment records in March 2007 through October 2007 reflect that the Veteran remained continuously on medications and attended outpatient group therapy, medication evaluation, and occupational therapy, but continued to report chronic symptoms of depression, with variations in severity. In October 2007, she attempted suicide by ingesting more than 70 aspirin, and was hospitalized. VA treatment records totaling more than 700 written pages reflect that the Veteran was treated regularly and continuously from February 2007 to the present. On Remand, the Veteran's VA records were associated with the virtual (electronic) file. More than 300 pages of virtual records were added to the claims file, with some being duplicates of VA clinical records associated with the claims files in October 2011. The Veteran was afforded VA examination in November 2012. The examiner reviewed and summarized the clinical records of the Veteran's initial post-service examination in January 2007. At that time, the Veteran reported that she began noticing sadness, depression, crying spell, and trouble sleeping at the time of her service discharge in October 2006. Possible bipolar disorder or depression, NOS, were the assigned diagnoses. The examiner summarized the Veteran's treatment since the January 2007 VA examination, including her August 2011 hospitalization. The examiner assigned one diagnosis, mood disorder, NOS. The examiner chose, as the statement that most closely approximated the etiology of the Veteran's acquired psychiatric disorder, the following, "The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. In the rationale for this opinion, the examiner noted that there was no notation of symptoms consistent with psychosis. Although the examiner did not explain why she concluded that the Veteran's depression began during or as a result of her service, that opinion is favorable to the Veteran. In view of the fact that the record reflects that the Veteran hoped to have a career in the military, and in view of the Veteran's lay observations of chronicity and continuity of symptoms of depression noted beginning at service discharge, followed by formal diagnosis of an acquired psychiatric disorder, less than three months following her discharge, and continuing treatment though the present, there is no medical evidence or opinion that is unfavorable to the Veteran's claim. While the persuasive value of the 2012 VA opinion is somewhat diminished by a lack of rationale, nevertheless, that opinion is favorable to the Veteran. Given the favorable opinion linking the Veteran's service to the current acquired psychiatric disorder, service connection for the current acquired psychiatric disorder, for which a diagnosis of mood disorder, NOS, has been assigned, is warranted. [Continued on Next Page] ORDER Service connection for an acquired psychiatric disorder, for which a current diagnosis of mood disorder, NOS has been assigned, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs