Citation Nr: 1306121 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-04 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from September 1962 to November 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The April 2006 rating decision was confirmed in October 2006, and was confirmed and continued in May 2007, after a February 2007 request for "reconsideration." The Veteran testified at a personal hearing before the RO in October 2008. In his February 2009 substantive appeal to the Board, the Veteran specified that the claim listed on the title page of this decision was the only issue he wished to appeal to the Board. Therefore, the Board does not have jurisdiction over any other issue. The Board notes that, in his February 2009 substantive appeal, the Veteran indicated that he did not want a hearing before the Board. However, in March 2009, the Veteran sent a statement indicating that he previously requested a local hearing, but he now wished to request a hearing in Washington. The Veteran has not been asked to clarify this statement, and he has not been scheduled for a hearing before the Board. However, in view of the grant of his claim in this decision, it would be adverse to the Veteran's interest to schedule him for a hearing rather than granting the claim. The Veteran is not prejudiced by lack of a hearing. FINDING OF FACT The preponderance of the medical evidence establishes that the Veteran's current major depression was first manifested during and has been chronic and continuous since the Veteran's service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder for which a diagnosis of major depression is assigned are met. 38 U.S.C.A. §§ 1110, 1131, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants the claim for service connection for an acquired psychiatric disorder for which a diagnosis of major depression is assigned. 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 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. 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). Analysis A June 1965 treatment note reflects that the Veteran's wife was pregnant and "ill." The note reflects that the Veteran did not know what was wrong with his wife's pregnancy or what he could do help her. The Veteran was also consulting the chaplain. The assigned diagnosis was "agitated depression," and Librium was prescribed. (Post-service information establishes that the Veteran's wife had an ectopic pregnancy and that surgical intervention was required.) In July 1965 and August 1965, the Veteran had a weight loss of 25 pounds. He sought medical evaluation. He complained of rapid beating of his heart at times. Laboratory examinations and electrocardiogram disclosed no abnormality. No cause for the weight loss was determined. No abnormality was noted at the time of October 1965 separation examination other than the Veteran's recent weight loss. In October 2006, the Veteran sought service connection for depression, among other disorders. The Veteran did not provide clinical records showing that he was treated for depression, nor did he identify any specific treatment records. In April 2007, the Veteran sought VA psychiatric care. He reported a history of depression and panic disorder. He was taking medications. The Veteran reported long-standing anxiety, but not depression, on VA evaluation in November 2007. At a personal hearing before the RO in October 2008, the Veteran testified that he had depression and anxiety chronically after service, as manifested by the multiple divorces and marriages, multiple jobs, and self-medication with alcohol, before he began treatment for anxiety. Following this hearing, the Veteran was afforded VA examination on December 2008. The VA examiner concluded that it was his impression that the Veteran still had some depressive symptoms with social anxiety issues, but the examiner was unable to resolve this issue without resort to speculation. The examiner also stated that it was his impression that the Veteran's current depression "may not be related" to his "service-connected agitated depression." As this report states each "opinion" as requiring resort to speculation or without a specific likelihood, this report is neither favorable nor unfavorable to the claim. In May 2009, the Veteran submitted an opinion from a VA provider (Dr. B), who indicated that he had been treating the Veteran for major depression since 2008, but the Veteran had not obtained remission of his symptoms despite compliance with all modalities of therapy. Since this opinion does not state whether the Veteran's current psychiatric disorder was or was not linked to his service, the opinion is neither favorable nor unfavorable. In July 2009, the Veteran submitted a private clinical statement from D.M., Ph.D. Dr. M provided a detailed summary of the Veteran's work history, marital history, medical history, current complaints, objective symptoms, and treatment history. Dr. M administered a battery of tests, including the Minnesota Multiphasic Personality Inventory (MMPI-2) and Beck Depression Inventory, among others. The Veteran's scores indicated a satisfactory reading ability, visual-spatial and visual scanning deficits, severe anxiety, severe depression, suicide risk, disturbed thinking, and the possibility of an invalidating response style. The assigned diagnoses were major depression and alcohol dependence. Dr. M opined that the Veteran's current depression began 44 years ago, and was a consequence of the depression first manifested in service. VA outpatient treatment records dated from July 2009 to March 2012 reflect that the Veteran continued to participate in outpatient therapy and medication therapy for a psychiatric disorder, and that a diagnosis of depression was assigned. In May 2010, Dr. M. submitted a medical statement restating his June 2009 opinion that the Veteran's current depression was "as a consequence" of depression first manifested during the Veteran's service. Dr. M restated this opinion, indicating that, based on the review of the Veteran's service treatment records, historical data, observational data, and psychological testing, it was his opinion that the Veteran's major depression was directly related to the Veteran's time on active duty. Dr. M's statements are favorable to the Veteran's claim for service connection for an acquired psychiatric disorder for which a diagnosis of major depression is assigned. Dr. M's statements are persuasive, because he accurately summarized the Veteran's service treatment records, provided observations regarding medical and occupational history, and explained how he arrived at the conclusion that depression had been continuous since the Veteran's service, even though the Veteran did not seek medical treatment for a psychiatric disorder until many years after service. There is no unfavorable evidence, except to the extent that the speculative December 2008 VA examination report may be considered unfavorable. As the 2008 VA report provides no specific opinion as to the etiology or onset of a current psychiatric disorder, that report is of minimal probative value. When the value of the favorable evidence from Dr. M is weighed against the report of the December 2008 VA examination, the preponderance of the medical evidence is favorable to the Veteran. The claim for service connection for an acquired psychiatric disorder, for which a diagnosis of major depression is assigned, must be granted. ORDER The appeal for service connection for an acquired psychiatric disorder for which a diagnosis of major depression is assigned is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs