Citation Nr: 1305657 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 09-22 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired chronic psychiatric disorder. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Adrian D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from May 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied, inter alia, entitlement to the benefit sought. The Veteran testified during a Board videoconference hearing in June 2010, a transcript of which is of record. Upon original consideration of this appeal in December 2010, the Board denied claims for service connection for bilateral sensorineural hearing loss and tinnitus. The remaining claim for service connection for a mental disorder was remanded to the RO (via the Appeals Management Center (AMC)) for specified evidentiary development. In a decision dated in April 2012, the Board denied service connection for a mental disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated in December 2012, the Court vacated the Board's April 2012 decision, and remanded the issue back to the Board for development consistent with the Court's Order. In vacating the decision, the parties to the Joint Motion for Remand (JMR) pointed out that the Board and RO received notification letters from the Veteran's attorney on February 6, 2012 regarding his representation. The AMC also received copies of these letters on February 7, 2012. The attorney requested a copy of the Veteran's claims file. In order to submit additional evidence, the attorney also requested a stay of an additional 60 days after he received the claims the file. While the Board responded to the request for a copy of the claims file, the Board failed to respond to the attorney's request for additional time to submit evidence. However, on April 11, 2012, the Board issued a decision denying the Veteran's claim. The parties indicated that the Board did not adequately address the question of whether the Veteran's attorney submitted an appropriate and timely request for additional time to submit evidence. As explained below, in light of the grant of benefits, this question of whether the Veteran's attorney submitted an appropriate and timely request for additional time to submit evidence, is now moot. FINDING OF FACT The Veteran's major depressive and anxiety disorders are as likely as not related to his active military service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the Veteran's major depressive and anxiety disorders were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting service connection for the variously diagnosed psychiatric disorders. This award represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary for this case. II. Analysis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. In addition, certain chronic diseases, such as a psychoses, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran alleges that his present depression and associated mental health symptomatology had an onset during military service, specifically due to circumstances involving a family health emergency. The Veteran had been transferred to a military duty assignment in the Philippines when he learned that his older sister had become very ill from a kidney disease. The Veteran indicates that he then went back on military leave to visit his sister and was considered as a potential kidney donor, but this was ultimately deemed to be medically unfeasible. From then on he continued to receive letters about her deteriorating condition, and at one point went Absent Without Leave (AWOL) to spend further time with his family when her condition continued to worsen. As a result of going AWOL, the Veteran received disciplinary action and was demoted. In response to the stress of the situation, the Veteran indicates, he began drinking heavily and came to abuse alcohol. The Veteran has also identified stress over his own well-being during a period of political instability in the Philippines as contributing to later mental health problems. The service medical history includes a June 1986 notation to the effect that the Veteran was considering donating a kidney. In November 1988, the Veteran was seen for requested Antabuse medication. He related excessive heavy drinking with alcohol related incidents as the basis for seeking medication, and related an aggressive personality when drinking. Antabuse was prescribed. In January 1989, the Veteran was admitted to Great Lakes Naval Hospital on an inpatient basis due to substance and alcohol abuse. The detailed clinical records that follow pertaining to detoxification and treatment over the next two months reflect information concerning his level of participation or lack thereof in various scheduled personal and group treatment modalities. At times there was concern expressed about his degree of participation in alcohol rehabilitation, however the records do not at any point identify by psychological assessment a standalone diagnosed mental disorder. Also, the Veteran in a statement of psychosocial history indicated as to any serious illness in his family that his sister had kidney failure. Nothing further was stated in this regard. A February 1989 discharge summary report describes the Veteran's course of recovery. There is reference to one point during the third week of treatment when the Veteran displayed a poor attitude, and presented with an angry mood, but eventually submitted a written statement that he wished to remain in treatment. It was ultimately determined after five weeks that the Veteran had achieved as many benefits from treatment as possible, and he was discharged with a poor prognosis, and what was deemed a poor potential for continued military service. The final diagnosis was alcohol dependence, and polysubstance dependency. The Veteran's June 1989 separation examination did not mention any abnormalities and indicated only "healthy male." There was reference to the period of alcohol rehabilitation in Great Lakes, Illinois. The Veteran's mother has provided a statement describing the aforementioned circumstances under which the Veteran returned home from the service, initially for an approved period of 30 days to determine if he could provide his sister with a kidney, which was found not be feasible. The Veteran had to return to service and leave his sister not knowing whether he would ever see her again. The author of the statement then described in some detail how the Veteran was a changed person upon completion of his military service, and how he continued to experience symptoms of depression. The Veteran's sister has provided a statement describing the serious medical condition she experienced contemporaneous with the Veteran's period of military service, and the depressive symptoms that the Veteran manifested during and since this time period. More recent medical history indicates a complaint of depressive symptomatology on VA outpatient evaluation in July 2003. In April 2006, there was a positive screen for depression. The Veteran underwent subsequent outpatient counseling for depression, alcohol abuse, and bipolar disorder. The Veteran underwent VA Compensation and Pension examination in February 2011. The VA examiner initially noted his review of the claims file, including service treatment records, and the electronic VA medical records. Also noted was review of the aforementioned statements from members of the Veteran's family. It was further noted as to medical history that the Veteran first had a VA mental health intake evaluation in July 2003, at which time he was diagnosed with alcohol abuse and rule-out adjustment disorder with depressed mood vs. substance-inducted mood disorder and assigned a Global Assessment of Functioning (GAF) score of 50. He received residential substance dependent treatment at the VA in 2006. A July 2006 treatment note indicated that this was the Veteran's second alcohol rehabilitation process, the first of which occurred in service because he was avoiding legal charges after threatening someone while intoxicated. The Veteran left the residential treatment program against VA advice later in July 2006. The Veteran further reported he was not then involved in psychiatric treatment and did not take any psychiatric medications. He reported that he first received treatment for depression and anxiety about six years previously. He denied any psychiatric treatment in the military. The Veteran denied any recent drug or alcohol use. A mental health examination followed. The diagnoses given were major depressive disorder, panic disorder with agoraphobia, and alcohol dependence in early full remission. The GAF assigned was 50. The VA examiner further expressed the opinion that the Veteran's major depressive disorder and panic disorder with agoraphobia were less likely as not caused by or a result of his service-connected experience. According to the VA examiner's findings, the Veteran had denied a history of depression or anxiety on his military entrance and exit exams. From the Veteran's report, he did not receive treatment for depression or anxiety until six years previously. VA medical records showed his first contact with mental health treatment providers in 2003. In addition, it was the VA examiner's medical opinion that the Veteran's major depressive disorder and panic disorder with agoraphobia was less likely as not related to or caused by the circumstances around the in-service attempt to donate his kidney to his sister, her failing health while he was stationed in the Philippines, or any other incident of his military service. While it was considered reasonable to assume that the situation surrounding his sister's health and kidney donation significantly impacted the Veteran at that time, it was not credible to assume that this situation was related to or caused the type of longstanding issues with depression and anxiety the Veteran reported. The VA examiner further opined that the Veteran's alcohol dependence in early full remission was less likely as not caused by or related to his military service. The Veteran reported that he did not start drinking heavily until he was in the military, but his alcohol use was not reported as having developed secondary to any mental disorder. In other words, his alcohol use was a primary diagnosis. In addition, the Veteran's electronic medical records documented an extensive family history of alcoholism which was consistent with the Veteran having a predisposition to alcoholism prior to the military. Since then, additional private psychiatric evaluation and diagnoses have been reported. In January 2013, the Board received a copy of a May 2012 private psychologist evaluation and opinion regarding the Veteran's psychiatric disorders. After diagnostic testing and evaluation, the diagnoses included major depressive disorder, anxiety disorder not otherwise specified (NOS), psychotic disorder NOS, and features of PTSD. This examiner reviewed the claims file and the Veteran completed the Penn Inventory for PTSD (Penn), and the Structured Inventory of Malingered Symptoms (SIMS), the Spielberger State-trait Anxiety Inventory. The examiner also conducted the Beck Depression Inventory. In reporting the Veteran's service history he noted that the Veteran had no problems during his first 2 years of military; however, following his sister's need for a kidney, his performance deteriorated. By August 1987, he was on a downward spiral which ended with him being treated for alcohol abuse, going AWOL and being reduced in rank. Although he did not seek treatment until 2006, the lay statements of the Veteran's sister and mother describe virtually continuous depression and anxiety from the time of discharge to the present day. The examiner concluded that these disorders had their onset during active duty. There has been some variation in terms of the Veteran's current psychiatric diagnoses. Although some examination reports have revealed findings of PTSD features, none have revealed a PTSD diagnosis. Although the 2012 private examiner indicated a diagnosis of psychosis, it is unclear what the basis of this opinion is aside from the Veteran's complaints. Objective testing did not appear to yield a finding of a psychosis. The diagnoses that are consistently demonstrated in the record are major depressive and anxiety disorders (to include panic disorder). In this regard, both the VA examination in February 2011 as well as the May 2012 private examination report have similarly reported that the Veteran's objective testing yielded anxiety and depression. In this case, there are two opposing opinions of record which address whether the Veteran's psychiatric issues are related to service. In such instances, the Board must weigh the credibility of these medical opinions to determine their ultimate probative value and, in so doing, the Board may favor one medical opinion over another provided there is sufficient explanation of the underlying reasons and bases. See Evans v. West, 12 Vet. App. 22, 30 (1998). The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The medical opinions of record are considered competent as they were provided by those possessing the necessary medical competence, education, training, qualifications or experience to, according to 38 C.F.R. § 3.159(a)(1), offer medical diagnoses, statements or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). See also Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (indicating that, where this is not called into question, VA need not affirmatively establish an examiner's competency). They both provide reasoning that can be debated but neither opinion can be dismissed based on their assumptions or reasoning. Both are based on the entire claims file as well as a psychiatric evaluation of the Veteran. In light of the medical evidence establishing the required relationship or correlation between the Veteran's psychiatric disorders and his military service, the Board finds that 38 C.F.R. § 3.102 warrants application. According to 38 C.F.R. § 3.102, when reasonable doubt arises regarding service origin, the degree of disability, or any other point, this doubt will be resolved in the Appellant's favor. A reasonable doubt is one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence supporting the claim certainly is at least on balance with and as probative as any evidence against the claim concerning whether the Veteran's major depressive disorder is related to his military service. Therefore, especially when resolving all reasonable doubt in his favor, it is at least as likely as not that his major depressive disorder is related to his military service. 38 C.F.R. § 3.102. His claim therefore must be granted. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating that an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). ORDER Service connection for major depressive and anxiety disorders is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs