Citation Nr: 1318661	
Decision Date: 06/07/13    Archive Date: 06/11/13

DOCKET NO.  07-24 357	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depression and anxiety disorder.


ATTORNEY FOR THE BOARD

A. Michel, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1970 to January 1972 and from January to March 1991.  He had additional service with the National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.

In September 2008 and January 2012, the Board remanded this matter for additional evidentiary development; the case has since been returned for further appellate action.

Subsequent to the certification of the Veteran's appeal, translated documents were added to the claims folder that consisted of Social Security Administration (SSA) records, without waiver of initial RO consideration.  See 38 C.F.R. § 20.1304(c) (2012).  However, the Board finds that these records are essentially duplicative of the evidence already of record, showing the Veteran's reported symptoms related to his claimed acquired psychiatric disorder.  Thus the Board may consider this evidence in making a decision. 

The Board has not only reviewed the Veteran's physical claims files but also the file on the "Virtual VA" system to ensure a total review of the evidence.  


FINDINGS OF FACT

1.  Psychiatric symptoms attributed to service were shown within weeks of service separation.

2.  A credible diagnosis of a psychosis was not shown within one year of service.


CONCLUSION OF LAW

An acquired psychiatric disorder, diagnosed a major depression and anxiety disorder, was incurred in active service; a psychosis is not presumed to have been incurred within one year of service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

In this case, the Veteran has been diagnosed with major depression and anxiety disorder.  Neither of those diagnoses are listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply.  

Service connection may also be established with certain chronic diseases, including psychosis, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.

As above, none of the acquired psychiatric diagnoses claimed are listed in 38 C.F.R. §§ 3.307, 3.309(a); therefore, the one-year presumption does not apply.  

Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In addition to the laws and regulations governing service connection outlined above, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment.  38 U.S.C.A. § 1111 (West 2002).  Only such conditions as are recorded in examination reports are to be considered as noted.  38 C.F.R. § 3.304(b).

Pursuant to 38 U.S.C.A. § 1111, and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, 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.  See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003).

Specifically, the Court in Wagner held as follows:

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.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition.  38 U.S.C. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection.  This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded.  See 38 C.F.R. § 3.322.  

Wagner, 370 F.3d at 1096.  

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).

In precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel reasoned that § 3.306(b) properly implemented 38 U.S.C. § 1153, which provided that a preexisting injury or disease would be presumed to have been aggravated in service in cases where there was an increase in disability during service; however, the requirement of an increase in disability in 38 C.F.R. 
§ 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and did not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111.  38 U.S.C. § 1111, as in this case, requires VA to bear the burden of showing the absence of aggravation.

Moreover, "temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened."  Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  However, the increase need not be so severe as to warrant compensation.  Browder v. Derwinski, 1 Vet. App. 204, 207 (1991).

In this decision, the Board has considered the lay evidence as it pertains to the issue.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  

"Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  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, but is provided by a person who has the 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); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).  

A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses.  Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation).  

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  

Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).

Medical evidence that is speculative, general or inconclusive in nature cannot support a claim.  Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996).  A physician's statement framed in terms such as "may" or "could" is not probative.  See Warren v. Brown, 6 Vet. App. 4, 6 (1993).

A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).

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).

The Board has reviewed all of the evidence in the Veteran's claims folder.   Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.  

The Veteran is seeking service connection for an acquired psychiatric disorder.  He contends that this disorder began during his initial period of active duty service.  In the alternative, he asserts that a preexisting psychiatric disorder was aggravated during his second period of active duty service.  

Turning first to the issue of direct service-connection related to the first period of service, post-service evidence reflects psychiatric symptomatology as early as 1972 but no sustained treatment until the 1990s.  The record is replete with VA treatment records showing treatment for and diagnoses of major depression.  Specifically, in a September 2007 treatment record, the physician remarked that the Veteran had a history of psychiatric treatment from 1974 to 1986 with multiple interruptions; however, the Veteran reported at other times that he had only been depressed since 1991.  

Correspondence from Dr. J.R.P.V. in March 2008 noted that the Veteran had been receiving medical treatment since 1990.  Other evidence reflects diagnoses of major depression and anxiety disorder.  Therefore, an acquired psychiatric disorder is currently shown.

The evidence does not reflect an in-service incurrence or injury during the Veteran's initial period of service.  He contends that he started treatment in service for a psychiatric disorder.  Later, he reported that he was hospitalized for psychiatric treatment in service.  

Service treatment records include an entrance examination and Report of Medical History dated in May 1970, an immunization record, a separation examination dated in December 1971, a Statement of Medical Condition signed by the Veteran in January 1972 that there had been no change in his medical condition since the time of the separation examination, and a document declining DoD health insurance.  Significantly, the psychiatric evaluation at the time of separation was normal.  

Significantly, in recently submitted medical records dated in October 1972, the Veteran sought treatment for "nervousness, restlessness, insomnia, cannot concentrate, jumpy, hallucinations since Army days" and that he had been followed by mental health since March 1972.  The written diagnosis was schizophrenia.

As the Veteran was diagnosed with a psychosis within one year but not currently diagnosed with schizophrenia, the RO directed the claims file, including the 1972 records, to a Compensation and Pension psychiatrist for review and opinion.  In a December 2012 opinion, the psychiatrist identified the 1972 written records where the Veteran sought treatment, was prescribed medication, and was referred to the mental health clinic.  Nonetheless, she rendered a persuasive opinion that the Veteran was misdiagnosed with schizophrenia in 1972.  

She remarked "if, in fact, this Veteran had suffered from schizophrenia, as appeared in that note of 1972, he would have been unable to function as he did in his job for 29 yrs. and would have not been accepted in the military, where this Veteran reportedly serviced after his active duty from 1971 to 1972." 

A reasonable reading of this opinion, which is the only one that directly addresses the diagnosis of schizophrenia, is that the Veteran would not have been able to function either at work or been accepted into the National Guard with untreated schizophrenia.  

The psychiatrist's opinion that the Veteran was misdiagnosed with schizophrenia is consistent with the other evidence of record which reflects various psychiatric disorders but he was never again, and is not currently, diagnosed with schizophrenia.  Given that a credible diagnosis of a psychosis was not shown within one year of service, the appeal is denied on a one-year presumptive basis.

Nonetheless, the 1972 evidence shows that the Veteran sought treatment for psychiatric symptoms within weeks after service separation which he attributed to an onset in service.  These statements made for treatment purposes are of high probative value.  Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

Moreover, the Veteran statements regarding on-going treatment since have been essentially consistent.  Specifically, he reported that he received sporadic psychiatric care over the years and, in fact, the evidence shows treatment in 1972, 1984, and 1989.  He also offered statements dating psychiatric treatment to sometime between 1974 and 1976.  

Further, his pastor submitted a statement in May 2010 attesting to the Veteran becoming anxious and depressed after his initial period of active duty.  In addition, his former supervisor, from 1989 to 2004, also submitted a statement attesting to him being a nervous and depressed employee, showing anxiety, lack of interest, difficulty concentrating, anger and isolation.

In light of the above discussion, the Board concludes that the preponderance of the evidence shows a current psychiatric disorder, psychiatric symptoms within weeks after service separation, and credible contemporaneous lay statements attributing the onset of psychiatric symptoms to service.  As such, service connection on a direct basis is warranted.

Given that the Board is granting service connection on a direct basis, there is no need to reach the issue of service connection based on aggravation of a preexisting disability.

Finally, 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.  



ORDER

Service connection for an acquired psychiatric disorder, diagnosed as major depression and anxiety disorder, is granted.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs