Citation Nr: 1313686 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 08-14 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for major depressive disorder and generalized anxiety disorder. (The issue of entitlement to service connection for a hypotonic bladder with hydronephrosis (claimed as a kidney disorder) is addressed in a separate Board decision) REPRESENTATION Veteran represented by: Heather E. Vanhoose, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran had active service from February 1975 to October 1975. This matter initially came before the Board of Veterans' Appeals (Board) from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO denied entitlement to service connection for an acquired psychiatric disorder to include depression, anxiety and personality disorder. In August 2010, the Veteran testified during a hearing at the RO before Veterans Law Judge (VLJ) Kane, one of the undersigned. In November 2010, the Board remanded the claim, characterized as entitlement to service connection for a psychiatric disorder, to the RO. Given that the Board is granting entitlement to service connection in this decision, it has recharacterized the issue to reflect the specific disabilities for which service connection is being granted. In July 2012, the Veteran testified during a hearing at the RO before VLJ Mason. Transcripts of each hearing are of record. During the October 2012 hearing, the Veteran was informed that, because of the two hearings, a decision on the claim would have to be rendered by a panel of three VLJs, consisting of VLJs Kane, Mason, and a third VLJ, and that the Veteran had the right to a hearing before the third VLJ. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran's attorney indicated that he waived his right to a hearing before the third VLJ. Hearing Transcript, at 3. Accordingly, the panel below will issue a decision in this case. FINDING OF FACT The evidence is approximately evenly balanced as to whether major depressive disorder and generalized anxiety disorder are related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, major depressive disorder and generalized anxiety disorder were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As the Board is granting the only claim on appeal herein, however, further discussion of the VCAA is unnecessary. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As discussed below, the Veteran was not diagnosed with a psychiatric disorder in service. Service connection is warranted, however, for a disease first diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the following reasons, the Board finds that major depressive disorder and generalized anxiety disorder, first diagnosed many years after service, are related to service. The January 1975 enlistment examination report indicated that the psychiatric examination was normal. The Veteran indicated at that time that he did not have depression or excessive worry or nervous trouble of any sort. During service, the only reference to psychiatric issues was in a September 1975 psychiatric consultation report prepared in connection with a pending chapter 5 discharge. The referral was based on a life long persistent nocturnal enuresis. The Veteran indicated that he washed his sheets every night, while no one had said anything to him about this, people looked at him "funny" and he expected his barracks mates to turn against him because of the smell. The impression was nocturnal enuresis of psychogenic origin, symptoms support patient's expectation of failure. Shortly before this consultation, an August 1975 discharge examination report indicated that psychiatric examination was normal and the Veteran indicated in the report of medical history that he had had symptoms of bed wetting since age 12 and frequent trouble sleeping. The Veteran stated during the Board hearings that he waited many years before seeking psychiatric treatment and the evidence contains multiple psychiatric diagnoses beginning with an April 2006 VA mental health evaluation with a diagnosis of chronic dysthymic disorder. There are conflicting opinions as to the nature and etiology of the Veteran's current psychiatric disorders. In May 2010, a psychologist, Dr. Atkinson, examined the Veteran. During the examination, the Veteran stated, as he did during the Board hearings, that he began to feel symptoms of depression in service and received a general discharge under honorable conditions due to being "messed up, depressed, drinking, AWOL." After the examination, Dr. Atkinson diagnosed major depressive disorder and generalized anxiety disorder and opined, "It is felt that the patient is having significant emotional problems which were greatly exacerbated by his military service and which are ongoing." Noting the ambiguity in this opinion, in particular the term, "exacerbated," the Board in its November 2010 remand instructed that the Veteran be afforded a VA psychiatric examination. In October 2011, after reviewing the claims file and examining the Veteran, a VA psychologist found that it was not possible to diagnose any psychiatric condition due to over-reporting of symptoms, but that even if it were possible to offer such a diagnosis, there was no discernible connection among symptoms and service. The psychologist reasoned that the service treatment records were "negative for any mental health concerns or treatment," and that the Veteran "was not treated for mental health concerns until 2006"; therefore, there was no continuum of treatment that would suggest a link between a current psychiatric disorder and service. The VA psychologist also noted that it was unclear why the Veteran filed a claim based on an acquired psychiatric condition as he did not indicate that his symptoms were caused by military service. Finding this opinion inadequate as well, the Board requested an opinion pursuant to 38 C.F.R. § 20.901 from the Veteran's Health Administration (VHA). The request asked for opinions as to whether there was evidence of a preexisting psychiatric disorder, if so, whether it was aggravated by service and, if not, whether a currently diagnosed psychiatric disorder was related to service. In December 2012, a VHA physician responded that the Veteran had major depressive disorder and generalized anxiety disorder, and that there was no evidence that the Veteran entered service with a psychiatric disorder, as reflected by the normal enlistment examination and report of medical history. He also opined that there was no evidence that the Veteran's depression and anxiety began during service. In support of this opinion, he noted that the evidence available from the Veteran's statements, including that to a VA psychiatrist in October 2009, that he began feeling depressed in 1975. Each of the above opinions as to the nature and etiology of the Veteran's psychiatric disorder is flawed in some way. Dr. Atkinson's opinion is ambiguous in that it referred to exacerbation, possibly suggesting aggravation rather than occurrence in service. The October 2011 VA examiner's opinion was flawed for two reasons. First, the October 2011 VA examiner erroneously stated that the service treatment records were negative for any health concerns or treatment when in fact there was a psychiatric consultation indicating at least a mental health "concern." Her opinion was therefore based on an inaccurate factual premise and must be discounted. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). See also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)). In addition, the VA examiner focused on when the Veteran was first treated for a psychiatric disorder and expressed surprise as to his claim because of a lack of attribution of his psychiatric disorder when in fact the Veteran has consistently and credibly indicated that his symptoms were long standing and began in service, and he is competent to describe observable symptoms such as depression. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The VHA opinion was also based on an inaccurate factual premise because the physician stated there was no evidence that symptoms of depression and anxiety started in service based on statements indicating that they began in 1975, when in fact that was during the one year in which the Veteran had active service. This opinion must therefore be discounted as well. Based on the above, the Board finds that the evidence is approximately evenly balanced as to whether the currently diagnosed major depressive disorder and generalized anxiety disorder are related to service. As no psychiatric disorders were noted on the enlistment examination, the Veteran is presumed to have been psychiatrically sound when he entered service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). Here, not only is there no clear and unmistakable evidence of preexistence, the only medical opinion on this question found to the contrary that no psychiatric disorder preexisted service. The issue is therefore whether the currently diagnosed psychiatric disorders are related to service. The opinions finding that they are not - those of the October 2011 VA examiner and the VHA physician - are each significantly flawed because they were based on inaccurate factual premises, and the October 2011 VA examiner did not address the Veteran's statements regarding his symptoms, which the Board has found competent and credible. While Dr. Atkinson used ambiguous language without elaborate reasoning, viewing his opinion in the context of his examination report and the evidence of record, it contains probative evidence in support of the claim. See Monzingo, 26 Vet. App. at 106 (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Dr. Atkinson accurately recounted the Veteran's statements regarding his difficulties in service and did not specifically indicate that there was a preexisting psychiatric disorder. His reference to exacerbation, while not a model of clarity, therefore conveyed that the Veteran's current psychiatric disorders likely had their origin in service, although the Veteran may have had either predisposition or some type of problem (as opposed to clear and unmistakable evidence of a preexisting psychiatric disorder) prior to that time. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that although clarity is preferred, it cannot be demanded in every instance or "finality would forever be delayed pending perfection in draftsmanship"). Given that the positive nexus opinion is of at least as much probative value as the negative nexus opinions, the reasonable doubt created by this approximate balance of positive and negative evidence must be resolved in favor of the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Moreover, to request yet another medical opinion in this case could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Entitlement to service connection for major depressive disorder and generalized anxiety disorder is therefore warranted. ORDER Entitlement to service connection for major depressive disorder and generalized anxiety disorder is granted. __________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals __________________ Michelle L. Kane Veterans Law Judge, Board of Veterans' Appeals _________________ Kelli Kordich Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs