Citation Nr: 1311076 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 03-17 991A ) 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, to include posttraumatic stress disorder (PTSD) and an anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran's periods of active service include active duty for training from October 1979 to May 1980, and regular active service from November 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2001 rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Montgomery Alabama. By way of background, a July 1998 RO decision denied entitlement to service connection for PTSD, which became final. An October 2001 RO decision denied the Veteran's request to reopen the claim, which the Veteran appealed herein. A November 2007 Board decision granted the Veteran's application to reopen and remanded the Veteran's claim for further development. The Veteran's claim was again remanded in June 2010, September 2011, and November 2012 for further development, which development has been completed and associated with the claims file, and this matter is returned to the Board for further review. It is noted that during the pendency of the claim for PTSD, the RO also separately denied service connection for depression. However, a separate notice of disagreement was not required to place the issue in appellate status due to the appellant's assertions during the pendency of the appeal that she is entitled to service connection for a psychiatric disorder, variously diagnosed. In that regard, the Board notes that the June 2010 Board remand recharacterized the issue on appeal more broadly to include service connection for an acquired psychiatric disorder based on the evidence of record and the Veteran's assertions during the pendency of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran has an acquired psychiatric disorder, to include PTSD and a depressive disorder, that is related to her military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, an acquired psychiatric disorder, including PTSD and a depressive disorder, was incurred as a result of her military service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder, is granted, as explained below. As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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. C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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). However, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, and disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004); VAOPGPREC 3-2003 at 10-11 (July 16, 2003). The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 at 10-11 (July 16, 2003). However, the 38 U.S.C.A. § 1111 presumption of soundness "requires that there be an examination prior to entry into the period of service on which the claim is based. In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based." Smith v. Shinseki, 24 Vet.App. 40 (2010) (citing Crowe v. Brown, 7 Vet.App. 238, 245 (1994) (presumption of sound condition attaches where there was an induction examination); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991)). Presumptions of soundness, aggravation, and regarding certain conditions that are considered to be chronic, per se, only apply to periods of active duty, not ACDUTRA or inactive duty training. See Paulson v. Brown, 7 Vet. App. 466 (1995); Biggins v. Derwinski, 1 Vet. App. 47478 (1991). The Veteran served on active duty for training from October 1979 to May 1980, and on regular active duty from November 1990 to May 1991, including service in Saudi Arabia from January 1991 to April 1991. She claims that she has an acquired psychiatric disorder, to include PTSD, as a result of her active service. Her alleged PTSD stressors in service primarily include transporting injured and dead soldiers into the hospital as a member of an evacuation hospital unit, and military sexual trauma from being raped on base (by non-US personnel). Her alleged stressors also include having inhaled chemicals from scud missiles and experiencing severe burning in her eye, nose, and throat. See, e.g., Stressor Statements, February 2006. The Boards also acknowledges that she has reported experiencing continued depression since service. See, e.g., Form 21-4138, January 1996. The Board acknowledges that the Veteran's personnel records reflect that she served in Saudi Arabia from January 1991 to April 1991 as a clerk typist with the 109th Evacuation Hospital unit. The Board notes that despite the clerical nature of her MOS, she reports that her duties in Saudi Arabia included transporting injured and dead soldiers into the hospital. In that regard, the Board also acknowledges a January 2006 buddy statement from M.F., in which he wrote that he served directly with the Veteran in a number of triage situations with wounded and dead soldiers from the combat zone, and that the Veteran's duties as one of the lowest ranking personnel involved a lot of hands on treatment. The Board finds no reason to find these statements made by the Veteran and her buddy to be not credible. Therefore, in light of their credible statements regarding the Veteran's having worked with injured and dead soldiers in service, which the Board finds is consistent with the circumstances, conditions, or hardships of the Veteran's service in Saudi Arabia with an evacuation hospital unit, the Board concedes this stressor. The Board also acknowledges the Veteran's reported military sexual trauma, although in light of the fact that service connection for PTSD is being granted herein relating to the other stressors described above, the Board notes that a lengthy discussion of the military sexual trauma provisions is not necessary in this case. The Veteran's active duty service treatment records are silent as to any complaints of PTSD or any anxiety disorder or depression, although the Board acknowledges that on her March 1980 and June 1984 reports of medical history for the reserves, she checked the box indicating that she had experienced excessive worry or depression at some time. However, no psychiatric disabilities were found by military examiners in July 1979, March 1980, June 1984, March 1991 and April 1991. Post-service, in 1996, the Veteran reported that she had been treated for depression at the Birmingham, Alabama VAMC. See, e.g., Claim, January 1996. The earliest VA treatment records in the claims file, however, date back to January 1994, and the Board acknowledges that a search for any other treatment records dated from 1991 to 1994 was negative. See VAMC Reply, November 2011. A January 1994 Persian Gulf Registry Examination Report reflects that the Veteran appeared slightly depressed, and the examiner noted that the Veteran reported that her depression began while she was in the Persian Gulf and continued. Likewise, an August 1995 VA treatment record reflects that the Veteran reported experiencing depression she related to her Gulf War service. Subsequent VA treatment records reflect that the Veteran has been followed for diagnosed PTSD and depression. See, e.g., VA Treatment Records, June 2010, July 2006, December 2005, December 2000. Also, the Veteran has been followed for a long history of substance abuse (cocaine, crack, marijuana, and alcohol), including substance abuse treatment at the VAMC in 1995, 2000, and 2010. She has reported to VA clinicians a history of using marijuana since around the age of 16, and cocaine or crack since the age of 40 (around 1994). See, e.g., June 2010. A September 2006 VA examination report reflects that the Veteran reported a pre-service history of physical abuse by her father and being raped at gunpoint. In service, she reported stressors including working with severely injured and dead soldiers coming off helicopters, being raped by two men in Saudi Arabia that were hired as cooks on her base. The examiner noted that these in-service stressors caused her to experience intense fear, feelings of helplessness, and horror. Post-service, she reported attempting suicide by cutting herself in 1992 but stopping due to fear of no medical attention, and starting to use drugs in 1995 after losing a job. She also reported a post-service romantic relationship from 1996 to 2000 that was physically, sexually, and emotionally abusive. The examiner noted that this relationship was also a stressor and that it caused her to have symptoms of PTSD. She reported having attempted suicide during this time (jumping out of a window, jumping out of a car, and overdosing). The Veteran reported experiencing nightmares, intrusive memories, flashbacks, emotional reactivity, depressed mood, avoidance of discussing or thinking about the events, detachment or estrangement, numbing, insomnia, irritability, a startle reaction, and hypervigilance. Mental status examination revealed a good mood and full affect, although the Veteran became tearful when discussing her sexual and military traumas. No delusions or suicidal or homicidal thoughts were noted. The examiner noted that the Veteran experienced PTSD symptoms including persistent re-experiencing the traumatic events, persistent avoidance of stimuli, including efforts to avoid thoughts, feelings, or conversations, markedly diminished interest or participation in significant activities, and feelings of detachment and estrangement from others, and persistent symptoms of increased arousal, including difficulty falling asleep and irritability and outbursts of anger. The examiner recorded diagnoses of chronic PTSD, and cocaine dependence, in full sustained remission, secondary to PTSD. The examiner opined that the Veteran's primary stressor involved seeing dead and wounded bodies in Saudi Arabia. At the same time, the examiner acknowledged that the Veteran had "multiple layerings" of trauma exposure in her childhood, at the age of 27, in service, and post service from 1996 to 2000. The Board also acknowledges several letters from VA clinicians submitted by the Veteran in support of her claim. A May 2003 letter from B.C., a nurse at the VAMC, reflects that he wrote that the Veteran was under his care for chronic depression and certain pains, and that the Veteran had difficulty maintaining employment since service (indicating depression since service). A February 2005 letter from W.H., a physicians assistant at the VAMC, reflects that he wrote that the Veteran was followed for ongoing treatment for chronic depression that had been present since her service in Saudi Arabia. A January 2006 statement from Dr. S.H. at the VAMC reflects that he wrote that the Veteran's diagnoses include dysthymia, PTSD, and military sexual trauma, and that her substance abuse issues are likely due to her memories of being a gurney carry in service, and that she used drugs and alcohol to self-medicate. A December 2006 letter from Dr. F.N. at the VAMC reflects that he wrote that the Veteran had chronic depression since service. With regard to the Veteran's claimed PTSD, in light of the conceded stressors involving the transport of dead and injured soldiers in Saudi Arabia, and the September 2006 VA examination report reflecting diagnosed PTSD, a discussion of all of the DSM-IV criteria, and linking the diagnosis of the conceded stressor, the Board finds that having taken into consideration other VA examiner's opinions addressed below, the evidence is at least in relative equipoise as to whether the Veteran has PTSD that was incurred in service and, based thereon, the Board will grant service connection for PTSD. See 38 U.S.C.A. § 5107(b). In light of this grant of service connection for a type of anxiety disorder, the Board finds that a discussion of whether the Veteran may also be entitled to service connection for another type of anxiety disorder that shares symptomatology is not necessary. With regard to the Veteran's claimed depression, in light of the Veteran's reported continuity of symptomatology since service, which the Board finds to be credible, the VA treatment records reflecting diagnosed depression since 1994 (shortly after service), and the letters from W.H., Dr. S.H., and Dr. F.N. of the VAMC opining that the Veteran has had depression since service, the Board finds that having taken into consideration other VA examiner's opinions addressed below, the evidence is at least in relative equipoise as to whether the Veteran has a depressive disorder that was incurred in service and, based thereon, the Board will also grant service connection for a depressive disorder. See 38 U.S.C.A. § 5107(b). It is also noted that the September 2006 examiner determined that depression as well as substance dependence was secondary to the PTSD. In light of this grant of service connection for a type of depressive disorder, the Board finds that a discussion of whether the Veteran may also be entitled to service connection for another type of psychiatric disorder involving depressive symptoms, such as dysthymia, is not necessary because of the shared symptomatology. The Board acknowledges that the Veteran was also provided with VA examinations in September 2001, December 2010, and October 2011, and that none of these VA examination reports tend to link her PTSD or depression to service. The September 2001 VA examination report, however, contains no discussion of the Veteran's PTSD whatsoever, and although it reflects diagnosed depression, the examiner merely attributed it to the Veteran's history of job losses without explaining the cause of the Veteran's job losses. The December 2010 VA examination report reflects that the examiner was unable to opine which stressor was responsible for the Veteran's anxiety disorder, and, regarding her depression, that it was attributable to her substance abuse. The October 2011 VA examiner opined that although the Veteran's stressors met the DSM criteria for PTSD, her symptoms did not. The October 2011 examiner further opined that the Veteran had a dysthymic disorder likely due to substance abuse and the impact of her personality disorder on her life, and that it preexisted service due to her environment and trauma and was not aggravated by service (albeit the Board notes that there is no documented diagnosis of any psychiatric condition until after second period of active service). While the Board has taken these VA examiner's opinions into serious account, the Board ultimately finds that they are not sufficient to bring the evidence out of equipoise in this case in light of the September 2006 examiner's determination that the Veteran had PTSD, at least in part, due to a military stressor, and that depression as well as substance dependence were secondary to the PTSD. While the Veteran did report in June 2010 that she had orthopedic pain and self medicated by abusing substances and alcohol and later reported during the 2011 VA examination that she used crack cocaine due to losing a job and living with a crack addict, substance abuse was attributed to PTSD by an examiner during the pendency of the claim. Regarding medical findings of a personality disorder, it is noted that personality disorders are not considered disease or injuries for compensation purposes. See 38 C.F.R. § 3.303(c). In summary, having resolved doubt in favor of the Veteran, the Board will grant the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD and a depressive disorder. ORDER Service connection for an acquired psychiatric disorder, including PTSD and a depressive disorder, is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs