Citation Nr: 1312652 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 08-16 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from May 1988 to April 1992. He also served on active duty for training (ACDUTRA) from April 1985 to July 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veteran's Law Judge in January 2008. A transcript of the hearing is of record. In April 2008, the Board denied the claim for service connection for an acquired psychiatric disorder as well as several other claims for service connection. The Veteran's claim for service connection for residuals of a head injury was reopened and remanded for further development. In addition, the Board remanded for the claim for service connection for a gastrointestinal disability for further development. The Veteran appealed the Board's April 2008 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the parties submitted a Joint Motion for an Order Partially Vacating and Remanding the Board's decision (JMR), in which the Veteran's attorney indicated that he was appealing only the issue relating to service connection for an acquired psychiatric disorder; the other issues were abandoned on appeal. In May 2009, the Court granted the JMR for further explanation of reasons and bases. The record did not reflect that, during the pendency of the Veteran's appeal to the Court, the RO has had an opportunity to work on the two issues that were remanded by the Board in May 2008. Those issues remained in appellate status, and in addition to the issue of service connection for an acquired psychiatric disorder which was the subject of the JMR, were remanded by the Board in March 2010. In June 2011, the Board denied the Veteran's claims for service connection for residuals of a head injury and a gastrointestinal disorder and remanded the claim for an acquired psychiatric disorder for further evidentiary development. FINDING OF FACT The Veteran's diagnosed depression and anxiety is the result of his active service. CONCLUSION OF LAW A depressive and anxiety disorder was incurred or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. The Board notes that the Veteran requested a video conference hearing before the Board. See VA Form 9 dated December 2012. The Veteran is entitled to only one hearing before the Board, which was conducted in 2008 and addressed the issue on appeal. See 38 C.F.R. § 2031507(b) (1). Moreover, inasmuch as the Veteran's claim is being granted in the decision below, his request for a second hearing in this appeal has been rendered moot. II. Legal Principles The Veteran contends that his current psychiatric disability is related to an in-service incident in which he was falsely accused of sexual assault. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). The parties to the May 2009 JMR found that in the April 2008 decision, the Board failed to adequately discuss the issue of continuity of the Veteran's psychiatric symptomatology since service pursuant to Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Under Savage, continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. However, Savage was recently overruled by Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) in which the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Here, the Veteran has not been diagnosed with a chronic disease or psychosis listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.309(b) is not applicable. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Background There is evidence of a current psychiatric disability in this case. When the Veteran underwent medical examination in connection with his claim in June 2010, the examiner diagnosed mood disorder, NOS and ADD. Thus, as the evidentiary record clearly shows a current psychiatric disability, the Board will now consider in-service incurrence. The Veteran's service treatment records (STRs) do not indicate that he ever complained of, or was treated for, a psychiatric disability in service. On March 1992 separation examination, the Veteran denied a history of depression or excessive worry or nervous trouble of any sort. Likewise, on the corresponding report of medical examination, the examiner reported that the Veteran was psychiatrically normal. The report of a February 1993 VA general medical examination was also silent with respect to the presence of any type of psychiatric disorder and the Veteran made no complaints of such at that time or when he filed a claim for benefits in 1995. Post-service, records first reflect complaints related to anxiety and depression in January 1999. Specifically, VA treatment records show that the Veteran was admitted to the acute inpatient psychiatric unit in January 1999 after complaining of anxiety and depression and depressive episodes during service. He gave a history of outpatient psychiatric treatment since July 1998. He noted at that he had initially experienced problems with depression in service, and that he had been experiencing bouts of depression on and off each year since that time. After psychological testing was complete, the Veteran was diagnosed with anxiety disorder, NOS. VA treatment records include a May 2001 ambulatory care note which documents that the Veteran left his job to clear his name with regard to the in-service sexual assault charge of which he was later acquitted. Private treatment records include a December 2001 report which documented that the Veteran had been depressed and withdrawn since his service in the Persian Gulf. The Veteran was afforded a VA mental disorders examination in December 2003 at which time he indicated that he had legal problems during service because a woman accused him of inappropriately touching her. He indicated that he was never cleared of the charges and that the false accusation interfered with his ability to obtain a security clearance for employment. Upon examination and review of the claims file, the Veteran was diagnosed with an anxiety disorder, NOS. The examiner did not opine as to whether the Veteran's anxiety disorder was related to his service. Records from the Social Security Administration include an April 2005 private psychiatric evaluation in which the Veteran stated that his mental health symptoms began during service. Upon examination, he was diagnosed with major depression with psychosis by history, in partial remission; anxiety disorder, NOS; and alcohol abuse, in apparent remission. At the January 2008 hearing before the undersigned, the Veteran testified that he had a psychiatric disability that was related to an in-service incident in which he was falsely accused of sexual assault. He submitted a statement which explained that between April and June 1991, he was falsely accused of touching a woman and was taken into custody, but was released later that day. He was embarrassed by the incident and felt like a monster. He stated that he appeared at a court-martial, but his accused failed to appear and the charges were later dropped. At the hearing, the Veteran submitted a copy of Temporary Additional Duty Travel Orders which documents a June 1991 reassignment for "pending disciplinary action." The Board issued an adverse decision in April 2008 that was subsequently vacated and remanded in a May 2009 JMR. Additional evidence added to the claims file includes the report of a June 2010 VA examination and opinion, the September 2009 opinion of VA psychiatrist Dr. Douyon, and legal documents that pertain to legal proceedings concerning the matter of the Veteran being accused of a sexual assault during service. In May 2009 correspondence, the United States Citizenship and Immigration Services provided the Veteran with a copy of a June 1991 charge sheet which shows that the Veteran was accused of grabbing K.J.G. by the arm and grabbing her breasts "with a means likely to produce death or grievous bodily harm." An October 1991 memorandum from a commanding officer in the United States Navy documents that the charges were withdrawn without prejudice to the government due to the victim's unavailability for trial. Notably, this evidence was not made available to the Board at the time of the April 2008 decision. In September 2009, the Veteran underwent a mental capacity assessment provided by VA psychiatrist R. Douyon at which time he was diagnosed with depressive disorder, NOS; anxiety disorder, NOS, and ADD. Dr. Douyon opined that it is more than likely that the Veteran's current diagnoses and symptoms are a direct result of the Veteran's service. Pursuant to the Board's March 2010 remand, the Veteran underwent a VA mental disorders examination in June 2010 at which time he presented with a history of being accused of sexually assaulting a waitress during service. He had a history of heavy alcohol abuse in 1989. However, he drank more after the incident, due in part to the fact that he was still upset by the fact that he was never totally exonerated of the sexual assault charges. On examination, the Veteran was diagnosed with mood disorder, NOS and ADD. The examiner indicated that VA psychiatric and psychology notes did not relate his diagnoses to an accusation of sexual misconduct during service. The examiner stated that while the Veteran was displeased that he was never exonerated of the charges they were later withdrawn. The examiner opined that it is less likely than not that the Veteran's current psychiatric disorders are caused by or a result of withdrawn sexual assault charges in service. Pursuant to the Board's June 2011 remand for an addendum opinion that considered Dr. Douyon's opinion in support of the Veteran's claim, in a November 2012 addendum, the June 2010 examiner indicated that he reviewed Dr. Douyon's opinion, but found that his opinion was unsupported by any rationale. The examiner explained that he did not relate the Veteran's psychiatric disorders to his service because there is no evidence of any psychiatric treatment or diagnosis until 6 years after service. IV. Analysis After a review of the record, the Board finds that the evidence in this case is at least in equipoise with regard to whether the Veteran's acquired psychiatric disorder is related to his service. Entitlement to service connection for an acquired psychiatric disorder is warranted. The STRS are absent of any complaints or findings related to a psychiatric disorder during active service. And, as noted above, nothing was noted on discharge examination in March 1992. There are also no findings pertaining to a psychiatric disorder in the February 1993 VA general medical examination. Such weighs against the Veteran's claim of experiencing problems with depression since service. Indeed, had depressive symptoms existed since service, the Board is left to wonder why the Veteran made no reference to the same when he filed his claim for benefits in 1992 and 1995. Indeed, there was no mention of any complaints of a psychiatric disorder or treatment of the same until January 1999. However, and of some import, when the Veteran was seen in January 1999 he provided a history of depressive episodes that occurred on and off each year during service. This psychiatric history was provided 2 years prior to the Veteran's 2001 claim for benefits. The Board ascribes great probative value to this statement made 2 years prior to the filing of a claim for benefits, as opposed to a statement made contemporaneous to a claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons"). As to the cite to Rucker, the Federal Rules of Evidence at 803(4) exclude from the hearsay rule statements made in the course of seeking medical diagnosis or treatment based on an underlying reasoning that such statements are particularly trustworthy because the individual has a compelling interest in providing truthful statements. The Board finds that underlying reasoning applicable to this case. The record also includes the positive opinion from Dr. Douyon. The probative value of the opinion is limited. Dr. Douyon provided no rationale for his conclusion that it was likely that the Veteran's depression and anxiety were related to his active service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-1 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes to the probative value to a medical opinion). The negative opinions of record are also flawed, however. The June 2010 opinion only stated that it was unlikely that the Veteran's current psychiatric disorders were related to the sexual misconduct charges that were brought against him. The examiner provided no rationale for this conclusion and did not address the Veteran's reported history of depression since service. Similarly, while he highlighted that the Veteran had no documented treatment for depression until six years post-service, no consideration was given to his report of recurrent depressive episodes since active service. Indeed, given the Veteran's credible report of experiencing depressive episodes on an "on and off basis" since service, which is discussed above, this oversight is significant. There is no dispute that Veteran is competent to report symptoms of depression and anxiety disorder, because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Veteran testified at his January 2008 hearing that he was greatly affected by the false accusation of sexual assault during service and that he first sought treatment around 1995. He testified that he was aware that he needed help, because he could not function. The January 1999 medical record shows that he then stated that he has experienced psychiatric symptoms during and since his service. The Board finds the Veteran's statements to be credible, as there is internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Although the record reflects that the Veteran first received psychiatric treatment in January 1999 and the report of that treatment does not show that the Veteran reported in-service onset of any psychiatric disability at that time, the Veteran's testimony appears to be genuine, credible, and consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("In the case of oral testimony, a hearing officer may properly consider the demeanor of the witness, the facial plausibility of the testimony, and the consistency of the witness' testimony with other testimony and affidavits submitted on behalf of the [V]eteran."); Jones v. Derwinski, 1 Vet. App. 210, 217 (1991) (finding that "the assessment of the credibility of the veteran's sworn testimony is a function for the BVA in the first instance"). Moreover, the Veteran has consistently provided a history of the in-service incident and false allegations of sexual assault. Although there is more than a 6 year gap between the Veteran's discharge from service and when the available post-service records first reflect complaints and treatment of the Veteran's anxiety and depression, the evidence is at least in equipoise as to whether the Veteran's diagnosed depressive and anxiety disorder is etiologically related to his active service. The Board acknowledges the negative opinion rendered by the June 2010 VA examiner and his finding that Dr. Douyon's opinion, in support of the Veteran's claim, is unsupported by any rationale. While that is true, the Board, has reviewed the record in its entirety and finds that the lay and medical evidence for and against the claim of service connection for a depressive and anxiety disorder is in equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's depressive and anxiety disorder is related to his active service. The claim, therefore, is granted. ORDER Service connection for a depressive and anxiety disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs