Citation Nr: 1311899 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-27 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a depressive disorder and an anxiety disorder. 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from February 1980 to April 1982, with service in the U.S. Marine Corps Reserves prior to 1980, including active service from April 1973 to November 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A September 2005 rating decision denied TDIU and a July 2007 rating decision denied reopening a claim for service connection for depression. In May 2010, a Board hearing was held at the RO before the undersigned; the transcript is of record. In July 2010, the Board reopened the claim for service connection for depression and remanded it for further development. The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT An acquired psychiatric disability first manifested in service. CONCLUSION OF LAW An acquired psychiatric disability was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The nexus between service and the current disability can be satisfied by competent evidence of continuity of symptomatology and evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board finds that the competent evidence of record establishes that the Veteran's acquired psychiatric disorder, to include depressive disorder and an anxiety disorder, incurred in service. No mental or emotional defects were noted upon entry to service and the Veteran is presumed to have been sound. There is no evidence to suggest that the Veteran's disease both pre-existed service and was not aggravated by service, therefore the presumption of soundness is not rebutted. Service treatment records indicate that the Veteran was treated for depression and migraine headaches in service. In 1982 after the Veteran's wife left him with two young children he sought emotional help. He was evaluated and diagnosed with clinical depression and anxiety and prescribed antidepressants and anti-anxiety tranquilizer. The Veteran was requested and received a discharge for hardship. Shortly after service at a November 1982 VA examination the Veteran was diagnosed with adjustment disorder with mixed emotional features, partially recovered. A June 2010 letter from the Veteran's private treating psychologist, Dr. ML, and countersigned by the Veteran's VA psychiatrist, Dr. OL, describes how his current disorder and in service disorder are the same. Dr. ML reviewed the Veteran's service medical records and VA examination report. DR. ML explained that at the time the Veteran was diagnosed, the Diagnostic and Statistic Manual III (DSM III) was being used as a standard for psychiatric diagnosis. Since that time many revisions of this manual have been made. She opined that by today's standards using the Diagnostic and Statistic Manual IV Revised (DSM IV R), the Veteran's diagnosis would be major depressive disorder recurrent, chronic, and severe without psychotic features with an underlying generalized anxiety disorder. Dr. ML reported that her treatment of the Veteran revealed similar findings that despite length of treatment, motivation ot improve and cooperation with treatment the Veteran remains severely depressed and anxious. Based upon review of the service medical records and treatment of the Veteran she opined that it is more likely than not that his currently diagnosed depression was caused by his military service. In September 2010 a VA examination was conducted. The examiner noted the Veteran's medical history to include VA treatment, family structure growing up, family psychiatric history, military service, and post-military history. The Veteran reported seeking treatment from VA since 2000 and from Dr OL since 2003. The examiner evaluated the Veteran and diagnosed post-traumatic stress disorder (non-military) with major depressive disorder recurrent and opiate dependence in sustained remission. The examiner opined that the Veteran's PTSD was not caused by or a result of his military service and that his major depressive disorder likely preceded his military service and is related to a number of continued difficulties in his life (including PTSD from his employment as a fire fighter and difficult romantic relationships). The examiner opined that the Veteran's major depressive disorder was not caused by his service connected migraine headaches. However, in consecutive statements, the VA examiner contradicted herself by first opining that that the Veteran's major depressive disorder was at least as likely as not to be aggravated by his service-connected migraine headaches and then opining that his major depressive disorder was not worsened beyond its natural progression by his migraine headaches, the standard for determining aggravation. An August 2012 follow up letter from Dr. ML, the Veteran's private treating psychologist, reviewed the subjective and objective medical evidence of record to include the September 2010 VA examination. Dr. ML disagreed with the September 2010 VA examiner's conclusion, noting that there was no objective medical evidence to support the statement that the Veteran's major depressive disorder preceded military service, and this conclusion was speculative as it was based upon the Veteran's reported subjective experience. Dr. ML found that the objective evidence documents that the Veteran had no health problems prior to service and only after his wife abandoned the family did he need to seek emotional help. She found there was no indication of evidence of depression or mental illness prior to service. Dr. ML opined that the November 1982 diagnosis of "adjustment disorder with mixed emotional features" is consistent with the Veteran's depression being treated pharmacologically. Dr. ML also noted that in the past twenty years it has been common to treat migraines with antidepressants, therefore any depression the Veteran may have been suffering may have been masked as it was inadvertently being treated. Dr. ML concluded that the Veteran's depression initially present in service when his family splintered. He was already suffering from migraines and he spun in a cycle of depression and headaches. Dr. ML opined that it was more likely than not that his currently diagnosed depression was caused by his military service. While the standard for service connection is the preponderance of the evidence, the weight of the competent medical evidence is in the Veteran's favor, there is no doubt to be resolved, and service connection for an acquired psychiatric disability to include depression and anxiety, is warranted. In this case, the private medical evaluations are found to have more probative weight than the VA examination for reasons noted above. ORDER Service connection for an acquired psychiatric disorder, to include a depressive disorder and an anxiety disorder, is granted. REMAND In light of the grant of service connection for an acquired psychiatric disability, to include a depressive disorder and an anxiety disorder, the claim for TDIU cannot be adjudicated until a rating percentage is assigned. The assigned rating will also determine whether the TDIU claim is assessed under 38 C.F.R. § 4.16(a) or 38 C.F.R. § 4.16(b). The evidence of record suggests that the Veteran is unemployable due to his psychiatric disability. In August 2012, Dr. ML opined that the Veteran is permanently disabled and in September 2010 the VA examiner opined that the Veteran was permanently disabled as the result of his PTSD. If the Veteran does not meet the requirements under 38 C.F.R. § 4.16(a), for TDUI consideration, in light of the above the Board believes consideration should be given in this case under 38 C.F.R. § 4.16(b) (this will most likely not be necessary in this case). Accordingly, the case is REMANDED for the following action: 1. Assign a rating disability percentage for the service connected acquired psychiatric disability. 2. Address the issue of TDIU. If the combined ratings of the service connected disabilities do not meet the criteria identified in 38 C.F.R. § 4.16(a), for consideration of TDIU, submit the claim of entitlement to TDIU to the Director, Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 4.16(b) (it is important for the AMC/RO to understand that this will most likely not be necessary in this case as the Veteran is already at 50% for his migraine). Prior to submission of the claim to the Director, Compensation and Pension Service, prepare a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue of entitlement to TDIU. Submit that statement, along with the Veteran's claims file and VA Vocational Rehabilitation file to the Director of VA's Compensation and Pension Service (again, it is important for the AMC/RO to understand that this will most likely not be necessary in this case as the Veteran is already at 50% for his service connected migraine). 2. After ensuring that the above development has been completed and the examination report is adequate, readjudicate the issue on appeal. If any benefit sought by the Veteran is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The appellant 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs