Citation Nr: 1317332 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 07-18 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2003 to June 2004, including service in the Southwest Asia Theater of Operations. The Board notes the Veteran has also had service in the Reserves since January 1985. This appeal to the Board of Veterans' Appeals (Board) is from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In March 2011, the Board remanded these claims for additional development and consideration. In a subsequent September 2012 rating decision, the RO granted service connection for left hip bursitis, and assigned an initial disability rating of 10 percent, retroactively effective from January 18, 2006. The Veteran has not appealed either this initial rating or effective date. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal and have been considered in the decision below. FINDINGS OF FACT 1. It is as likely as not the Veteran's major depressive disorder had its onset in service. 2. The Veteran was not afforded an entrance examination for her active duty service. 3. The Veteran's hypertension pre-existed service but increased in severity during active duty. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in her favor, the Veteran's major depressive disorder was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012). 2. Resolving all reasonable doubt in her favor, the Veteran's hypertension was aggravated by her military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board is granting service connection for an acquired psychiatric disorder and hypertension, which represent complete grants of the benefits sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The Veteran seeks service connection for an acquired psychiatric disorder and hypertension. 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). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the 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). Only such conditions as are recorded in entrance examination reports are to be considered as "noted," and a history of pre-service existence of conditions recorded at the time of examination does not constitute a "notation" of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this case, the Board acknowledges that the Veteran was not afforded an examination prior to her into active service. The governing VA statute provides that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991))). 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, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), 492 F.3d at 1376-77. 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. 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). Moreover, the 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). The evidence of record confirms the Veteran has been diagnosed with major depressive disorder and hypertension. Therefore the determinative issue, and focus of the analysis to follow, is whether there is sufficient evidence of a relationship between the Veteran's respectively diagnosed conditions and her military service. Acquired Psychiatric Disorder The Veteran's service treatment records are completely silent regarding any complaints of or treatment for a psychiatric disorder. However, her private treatment records from Dr. D.R., dated from October 2004 to September 2005, note her complaints of depression since returning from active duty. Dr. D.R.'s initial assessment in October 2004 is listed as depression. Thereafter, the report of a July 2006 VA compensation examination notes the Veteran's complaints of depression and also her reported history that she was prescribed antidepressants for that disorder. However, a specific diagnosis was not provided, and no opinion as to the etiology of a psychiatric disorder was given. Pursuant to the March 2011 Board remand, the Veteran was reexamined in July 2011. At that time, the VA examiner noted a history of psychiatric symptoms present during the past year, but no current treatment. As a result, the examiner failed to diagnose a psychiatric disorder. Instead, a history of adjustment disorder with anxiety and depression was noted. The Veteran's post service VA treatment records, dating from July 2006 to May 2012 have been considered. Specifically, a July 2008 VA treatment record provides a diagnosis of major depressive disorder. The VA treating physician also specifically notes that the Veteran has been experiencing adjustment difficulties since her return from Kuwait. The Board finds July 2011 VA examination opinion to be inadequate, as to the determinative matter at hand. The examiner did not consider the Veteran's private and VA treatment records that specifically diagnosed her with major depressive disorder. Therefore, this examination does not reflect adequate consideration of the competent and credible medical evidence of record. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); see also Buchanan, 451 F.3d at 1336. This deficiency renders the findings of the July 2011 VA examiner incomplete, and the Board accords the opinion no probative value. See Ardison v. Brown, 6 Vet. App. 405, 407 (1994). While there is no adequate medical nexus opinion of record, this not fatal to the Veteran's claim. The Board finds that the competent evidence of record confirms the she has experienced recurrent depressive symptoms since her separation from service. In fact, she is competent to report such symptoms as they are well within her realm of personal or firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). See also 38 C.F.R. § 3.159(a)(1) versus (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Moreover, there is no reason to doubt the credibility of her statements as it is also supported by the medical evidence of record. Specifically, she was diagnosed with depression as early as 2004, which is contemporaneous with her separation from service. So, her lay testimony is both competent and credible and, therefore, ultimately probative. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Therefore, service connection for major depressive disorder is warranted. Hypertension The evidence shows that the Veteran's hypertension pre-existed her active duty service. An October 2001 reserves medical retention examination notes the complaints of and treatment for hypertension. Further, additional service treatment records showed her recorded her blood pressure readings as follows: July 2003, 122/77; September 2003, 131/72; January 2004, 149/89 and also 137/79; February 2004, 141/88 and 134/87; April 2004, 137/80 and 138/90; and, finally, in October 2004, her blood pressure was noted as 121/67. The Board notes that the Veteran was not provided with an examination upon her entry into active duty. Therefore, the Board finds that the presumption of soundness does not apply to the current appeal. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Smith. As such, this appeal turns on the question of whether there is clear and unmistakable evidence that the Veteran's pre-existing hypertension was not aggravated by her active duty. The Veteran's private treatment records following her active duty from Dr. D.R., dated October 2004 to September 2005, show the Veteran's blood pressure was 190/100, 158/96, 134/90, 140/84 and the medication prescribed to treat her hypertension was increased. However, Dr. D.R. does not opine as to whether her hypertension was aggravated by service. During a July 2006 VA compensation examination, it was noted the Veteran's blood pressure was 134/90. The examiner also noted the Veteran's history of hypertension and her use of medication for this disease, but specifically stated she was not showing any symptoms at that time. However, the examiner failed to render an opinion as the etiology of the Veteran's hypertension and the fact that her diastolic pressure readings have been predominantly 90 or greater since her discharge from service, including considering the private treatment records. In May 2011, the Veteran was again scheduled for a VA compensation examination in accordance with the March 2011 Board remand directives. The VA examiner noted the Veteran was treated for hypertension and used medications to control her blood pressure. The examiner also indicated that the Veteran had problems with and a history of hypertension while stationed in Kuwait. Therefore, she concluded hypertension was related to service. The Board notes that the May 2011 VA examiner did not address whether the pre-existing hypertension was aggravated by service. In May 2012, the Veteran was reexamined to determine whether her hypertension was aggravated by service. The VA examiner confirmed that hypertension clearly and unmistakable pre-existed service. However, the examiner determined that the elevated blood pressure readings in service were abnormal because of the Veteran's failure to take her medications as documented on a service treatment record. As such, the examiner concluded that the Veteran's hypertension was not aggravated by her military service, but by her noncompliance. No explanation was provided as to why the Veteran was noncompliant with her medication. Considering all of the evidence together, and resolving reasonable doubt in favor of the Veteran, the Board finds that it is at least as likely as not that her hypertension was aggravated by her military service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran entered military service with hypertension. Immediately after service, she received treatment from Dr. D.R. that required increasing her medication for hypertension. Consequently, the presumption of aggravation attaches for this claim. The evidence shows that the Veteran's hypertension increased in severity during service. In this case, the only countervailing evidence is VA examiner's opinion that aggravation of the Veteran's pre-existing hypertension is due to her noncompliance with her medications while stationed in Kuwait. The examiner has not opined that aggravation of the Veteran's preexisting disability is exclusively due to the natural progression of the disease, but has in fact concluded that the Veteran's hypertension was abnormal during her active duty service. The determination that her noncompliance alone was the reason her hypertension was abnormal is not sufficient to rebut the presumption of aggravation during service, especially given the circumstances of her Persian Gulf service. Certainly then, it is just as likely as not the Veteran's pre-existing hypertension was aggravated beyond its natural progression during service. 38 C.F.R. § 3.102. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); and Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, service connection is warranted. In light of the favorable determinations above, the Board finds that consideration of the Veteran's claims pursuant to the provisions of 38 C.F.R. § 3.317, is not required. ORDER Service connection for major depressive disorder is granted. Service connection for hypertension is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs