Citation Nr: 1309369 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-13 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include depression. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Cheryl E. Handy, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1973 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The claim of service connection for a low back disability was previously before the Board in May 2010, when it was denied. The Veteran appealed the denial of service connection for a low back disability to the United States Court of Appeals for Veterans Claims (Court), which in November 2011, issued a Memorandum Decision setting aside the Board's May 2010 decision with regard to service connection for a low back disability and remanded the case for readjudication pursuant to 38 U.S.C. § 7252(a). These matters then came before the Board in July 2012, when they were remanded for further development, to include a VA examination of the Veteran's low back. As the examination that was provided in August 2012 was inadequate, the matter will be remanded again to ensure compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a low back disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's depression is shown to be the result of his military service. CONCLUSION OF LAW The criteria for service connection for depression have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The VCAA applies to the instant claim. However, with respect to the claim of service connection for depression, this decision grants the benefit sought on appeal, and there is no reason to belabor the impact of the VCAA on this matter; any notice error or duty to assist failure as to this claim is harmless. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding in veterans cases is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis The Veteran's service treatment records contain no mention of any complaints, symptoms, treatment, or diagnosis of any mental health or psychiatric disabilities in service. The Veteran has provided sworn testimony regarding his experiences in the military, stating that he observed many of his fellow marines being injured or injuring themselves while he was in the rehabilitation platoon. He stated that he observed physical abuse of recruits by drill instructors and was himself subjected to harsh treatment by both his superiors and by other members of his platoon. It was his belief that he was tortured and abused in boot camp and afterwards. He testified that he never had problems with depression or anxiety or other mental health issues until his time in the military and he therefore attributes them to those experiences. Since service, the Veteran's mental health history has included use and abuse of several types of illegal drugs, including heroin, and of alcohol. He has been diagnosed with various mental health disabilities, including depression and anxiety and related conditions. On February 2002 mental health evaluation, the Veteran presented for substance abuse treatment. He reported a history of using heroin, marijuana, and alcohol and four previous stays at rehabilitation facilities. He reported experiencing disciplinary problems in the military but receiving an honorable discharge. He reported symptoms of anxiety and panic, difficulty sleeping, and distant relationships with his family. He wished to quite using drugs because he was certain if he did not, his life style would lead to his death. At the time of the admission he was homeless and living at a VA facility. The evaluator offered preliminary findings of drug dependence and polysubstance abuse, with a Global Assessment of Functioning (GAF) score of 35. On August 2012 VA mental health examination, the Veteran was given diagnoses of opioid dependence in sustained full remission, depression, and anxiety disorder, as well as some PTSD symptoms. The examiner noted that none of his current symptoms were attributable to his opioid dependence because that condition was in sustained full remission. He did, however, have depression symptoms including pessimism, sadness, loss of pleasure, poor self-esteem, loss of interest, decreased energy, and sleep disturbance. The examiner indicated that the Veteran's current level of impairment was compatible with a finding of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner was not asked to provide an opinion regarding the etiology of the Veteran's diagnoses and did not do so of his own initiative. On January 2013 VA mental health examination, performed by the same examiner as the August 2012 examination, the Veteran was diagnosed with depressive disorder and PTSD, as well as tobacco use disorder and opioid dependence in sustained full remission. The examiner felt that 70 percent of the Veteran's current level of impairment was a result of his depression and 30 percent was due to his PTSD. The examiner agreed with the earlier assessment, that the impairment was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran's current symptoms consisted of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, neglect of personal appearance or hygiene, and intermittent inability to perform activities of daily living. The examiner stated that the Veteran's 30 percent of his symptoms were as likely as not due to his military experiences and that 70 percent of his symptoms were attributable to his experiences before and after the military, including childhood abuse and chronic pain. In light of the evidence set forth above, the Board finds that the criteria for service connection for depression have been met. Specifically, the evidence demonstrates a clear current disability in the diagnosis of depression, which the VA examiner states is responsible for 70 percent of the Veteran's current symptoms. In addition, the Veteran has identified multiple incidents in service which he asserts contributed to his current depression and which the VA examiner inherently accepted as plausible based on his diagnosis of PTSD as a result of those incidents. Further, the examiner's opinion attributes at least 30 percent of the Veteran's current symptoms to his military experiences. While the RO denied service connection because the examiner felt that 70 percent of the current symptoms were due to depression and also attributed only 30 percent of the current symptoms to his military experience, the same percentage as attributed to PTSD (which is not established to VA standards), the examiner did not make such a direct correlation. The law provides that when it is not possible to separate the effects of the service-connected condition and the non-service-connected condition or conditions, VA regulations clearly dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this instance, although the VA examiner clearly indicated that some of the Veteran's mental health problems are due to service, he did not specify which of the 30 percent of the present symptoms were included in that category. As such, the Board finds that the entirety of the Veteran's depression must be found to be service connected under the prevailing legal standard. Such a finding includes application of the benefit-of-the-doubt standard of proof in the Veteran's favor. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for depression is granted, subject to the laws and provisions governing the award of monetary benefits. REMAND As noted above, the matter of service connection for a low back disability was previously denied by the Board in a decision that was subsequently set aside by the Court. The Court directed that a new VA examination be obtained which included consideration of the evidence provided by the Veteran of continued back pain after service and before the 1976 motor vehicle accident. The May 2012 Remand directives specifically directed that the VA examiner consider and address the Veteran's competent and credible statements, and that the AMC/RO ensure that this instruction was followed. However, a review of the August 2012 VA examination shows that the VA examiner noted the Veteran's "lay statements" but did not explicitly consider or address them in the opinion. As a result, the examination is inadequate and the matter must be remanded for compliance with the Board's and the Court's instructions. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination by an examiner other than the one utilized for the August 2012 VA examination to determine whether it is at least as likely as not that his current low back disability was incurred in or aggravated by his military service, to include the injuries documented in service. The examiner is specifically advised that both the Board and the Court have found the Veteran's statements regarding back pain since service and prior to the 1976 motor vehicle accident to be both competent and credible, notwithstanding the lack of any evidence of treatment during that time. The examiner should elicit a full history from the Veteran regarding the back pain between the time of service and the 1976 motor vehicle accident. The examiner is instructed to address this history and indicate the significance, if any, of such ongoing back pain prior to the motor vehicle accident. The examiner is further instructed to offer an opinion regarding whether the 1976 motor vehicle accident constituted a superseding injury, that is, an injury, the effects of which, overrode and canceled out any ongoing effects of previous injuries or back pain, or whether it constituted an exacerbating injury, one in which the effects were added to those of any prior existing injury shown by the complaints of back pain. Any differences in pathology or symptomatology should be discussed, as well as any relevant imaging studies. The examiner should provide the rationale for any opinion(s) rendered. A copy of the claims file should be provided to the examiner for review. If, however, after a review of the record, the Veteran's history, and the examination, an opinion cannot be provided without resort to speculation, the examiner should explain why this is so and whether there is additional evidence that would permit the necessary opinion to be provided. 2. Following completion of the foregoing, the RO/AMC must review the claims folder and ensure that the foregoing development actions have been conducted and completed in full. Specific attention is directed to the requested examiners' opinions. If the reports do not include fully detailed responses to the Board's requests for comments asked therefore, the report(s) must be returned for corrective action. 38 C.F.R. § 4.2 (2012) and Stegall v. West, 11 Vet. App. 268 (1998). 3. On completion of the foregoing, the claim should be adjudicated. If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs