Citation Nr: 1310271	
Decision Date: 03/26/13    Archive Date: 04/02/13

DOCKET NO.  08-33 804	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include depression, NOS (not otherwise specified).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and Spouse


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel

INTRODUCTION

The Veteran had active service from April 1997 to March 2000 and from October 2004 to May 2005.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating action by the Department of Veterans Affairs (VA) Muskogee, Oklahoma, Regional Office (RO) which denied service connection for a right foot condition and service connection for a stress related condition.

In November 2011, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge.  

The case was previously before the Board in February 2012.  At that time, the Board remanded the case for further development.  

In a rating decision issued in January 2013, the RO granted service connection for bilateral pes planus (claimed as a right foot condition).  As such, this issue is no longer on appeal.
 
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a) (2) (West 2002).


FINDING OF FACT

The Veteran's depression NOS had its onset in service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression, NOS have been met.  38 U.S.C.A. § 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

In this decision, the Board grants service connection for an acquired psychiatric disorder.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

II. 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).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The Veteran's service treatment records dated in June 1997 note that the Veteran was treated for a mental problem.  The record reflects that his mental state was found to be unstable.  In service treatment records dated in August 1997, it was noted that the Veteran was depressed during basic training.  The report reflects that the Veteran was better and that the overwhelming feelings had been resolved.  In an April 2005 service treatment record, it reflects a diagnosis of depression. 
 
On his October 2008 Substantive Appeal, the Veteran indicated that his psychiatric condition caused him to have trouble interacting with people he worked with and that he would get stressed out due to heavy workloads.  

Post-service VA treatment records found on the Virtual VA system show that the Veteran was treated for depression in August 2010.  The records reflect that the Veteran complained of a lack of focus, and extreme unhappiness at home and at work.  The Veteran complained of insomnia, and stated that his symptoms had been worsening in the past month.  

At the November 2011 Board hearing, the Veteran stated that he was self-employed and would get irritated with his customers, sometimes having confrontations with them.  He stated that after he was discharged, he could not afford the medication he had been prescribed in service, because of lack of health insurance.  His spouse reported that she knew the Veteran before his first period of service and had observed a change in his behavior since discharge.  She stated that he now suffers from mood swings, will get depressed and will want to be left alone or lay in bed.  She noted that his current condition was not present before active service.  

The Veteran was afforded a VA examination in June 2012.  The examiner diagnosed the Veteran with depression NOS.  The Veteran reported that his main stressor, while in service, was due to aggression felt towards a sergeant.  He stated that he continued to feel angry after service and felt that his agitation has progressively gotten worse.  After a review of the Veteran's claims file and results of the examination, the examiner opined that it is less likely than not that the Veteran's current depression is related to his depression in service.  The examiner noted that the Veteran's current life stressors (ie. conflict in his marriage, frustration at work, his close friend moving) were not related to stressors found in service.  

After a review of the entire record, the Board finds that service connection is warranted.  The Veteran is currently diagnosed with depression and treatment records show that he was treated for depression while in service.  The Board finds that the required nexus has been established.  A showing of a recurrent condition can serve to satisfy the requirement for a nexus between an in-service occurrence and a current psychiatric disability.  Here, the Veteran's lay statements and hearing testimony from his spouse regarding the Veteran's recurrent psychiatric symptoms since service, such as mood swings, wanting to be left alone and getting irritated at work, are found to be competent and credible.  See Layno v. Brown, 6 Vet. App. at 470.  Further, the Veteran's lay statements describing his recurrent psychiatric symptoms support the diagnosis of depression, NOS.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).   

Although the VA examiner has opined that the Veteran's current depression, NOS is not related to the Veteran's military service, the Board finds the examiner's opinion is inadequate.  In the report, the examiner acknowledged that the Veteran suffered from an ongoing psychiatric condition.  However, the examiner focused on VA treatment records which did not reflect treatment for depression until August 2010.  The examiner's conclusion considered the lack of medical evidence documenting the Veteran's depression and psychiatric treatment rather than the Veteran's competent, credible and probative statements regarding recurrent psychiatric symptoms since service, especially given his report regarding his lack of health insurance coverage.  See Dalton v. Nicholson, 21 Vet. App. 12, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

In light of the inadequate VA medical nexus opinion, the Board is left only with the in-service treatment and the competent and credible lay reports from the Veteran and his spouse regarding ongoing psychiatric symptoms since service.  In this instant case, the statements are sufficient to establish a nexus to the currently diagnosed psychiatric disability, i.e., depression NOS.  See Jandreau; 38 C.F.R. § 3.303(a).  Accordingly, service connection for depression NOS is warranted. 


ORDER

Service connection for depression NOS is granted. 




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs