Citation Nr: 1320843 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 09-39 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from October 1952 to September 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for depression. A separate September 2009 rating decision denied service connection for posttraumatic stress disorder (PTSD). The Veteran testified at a Travel Board hearing in April 2011 in Waco, Texas, before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The claim was then remanded in September 2011 and November 2012 for additional development, and now returns to the Board for further review. A portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process. The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits. Because the current appeal was processed as part of the Virtual VA system, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT Depressive disorder is etiologically related to service. CONCLUSION OF LAW The criteria for service connection for depressive disorder have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Board is granting in full the benefit sought on appeal. Assuming that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection A. Applicable Law In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). VA's General Counsel has held that in order to rebut the presumption of sound condition under 38 U.S.C. § 1111 for disorders not noted on the entrance or enlistment examination, 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. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003 (July 16, 2003). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has adopted the General Counsel's position. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has held on multiple occasions that lay statements by a veteran concerning a preexisting condition, alone, are not sufficient to rebut the presumption of soundness. See e.g., Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service); Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). However, in determining whether a condition pre-existed service, lay evidence must still be considered. That is, the Veteran's medical history, accepted medical principles, evidence regarding the basic character, origin and development of the condition, and lay and medical evidence concerning the inception, development and manifestations of the condition must all be considered. 38 C.F.R. § 3.304(b). See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza at 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). B. Evidence Service treatment records are negative for any complaints, treatment, or diagnoses of a psychiatric disorder in service. Examinations conducted in April 1951, October 1952, and September 1954 revealed no abnormalities. However, in his written statements and hearing testimony, the Veteran contends that he was involved in a motor vehicle accident in service that injured him. The accident also resulted in the death of another soldier, who was a good friend of the Veteran. VA memoranda dated August 2009 and December 2011 verify the Veteran's account of this incident. The Veteran contends that his depression is the result of this accident. In a March 1958 VA examination, the Veteran reported being nervous when riding in cars. However, no specific psychiatric disability was diagnosed. VA treatment records show negative depression and PTSD screens in August 2008. An additional depression screen in July 2009 was also negative. The Veteran underwent a VA examination in September 2009. The examiner reviewed the claims file and noted the Veteran's conceded stressor. The Veteran also reported the loss of a "lady friend" about a year ago. Based on a review of the claims file, a history provided by the Veteran, and an examination, the examiner diagnosed adjustment disorder with depressed mood. He also noted that the Veteran had some symptoms of PTSD, but did not meet the full criteria for a diagnosis of PTSD. VA records dated January 2011 show a positive depression screen, and records dated July 2011 show a diagnosis of depression being treated with medication. The Veteran testified at a Board hearing in April 2011. He stated that his depression started in service when he was yelled at by his drill sergeant. He also received disciplinary action when he accidently fired his weapon during guard duty. He also recounted the accident in service which resulted in the death of his friend. He stated that he sought treatment for depression shortly after service, but then was not treated again until very recently. The Veteran underwent a VA examination in February 2012. He reported that his depression dated back to when he was a teenager and found out that the world did not live up to what he had heard or read about. He also reported being depressed about a friend who had died in a truck accident, and a lady friend who had died in 2008. He also had sleep difficulties which contributed to his depression. He first sought help for his depressed mood about 5 years ago. In addition to the history provided by the Veteran, the examiner also reviewed the claims file and conducted an examination. Based on these findings, he diagnosed the Veteran with depressive disorder, not otherwise specified, as well as primary insomnia. While the Veteran reported being depressed prior to service, the examiner stated that he could not determine whether the Veteran was actually depressed or merely disillusioned without resorting to speculation. However, if the Veteran was depressed before service, it was more likely than not that the motor vehicle accident in service, which resulted in the Veteran's injuries and the death of another, exacerbated that depression. It was not possible to determine how much of the Veteran's current condition was attributable to the death of his lady friend, his age-related health problems, and his insomnia. The examiner opined that the Veteran would have been less depressed while he was working and when he was more physically fit. However, after his retirement, he spent more time ruminating about the accident, which increased his depressive symptoms. An additional VA opinion was obtained in April 2013. This examiner reviewed the claims file and concluded that it was less likely than not that the Veteran's psychiatric disorder was incurred in, due to, or aggravated by his service. He stated that it was as likely as not a consequence of his normal aging process and a long life. She based her reasoning on the findings of the February 2012 examination, and cited portions of that examination in her own report. C. Analysis Based on the evidence, service connection for depressive disorder is warranted. First, the record reflects that the Veteran reported some depression prior to service. However, his initial service examinations reflect no such findings, and therefore he is presumed to have been in sound condition at the time of enlistment. Moreover, the February 2012 VA examiner stated that he could only speculate as to whether the Veteran had depression prior to service. Collectively, the examiner's opinion and the Veteran's statements do not represent clear and unmistakable evidence that the Veteran had a preexisting psychiatric condition, and therefore the presumption of sound condition has not been rebutted. The Veteran is currently diagnosed with depressive disorder, and the overall weight of the evidence indicates that the condition is attributable, at least in part, to his service. Specifically, while the February 2012 VA examiner concluded that the Veteran's condition was due in part to the death of his lady friend, his age-related health problems, and his insomnia, it was also directly attributable to the loss of the Veteran's friend during a motor vehicle accident in service. The examiner noted that the Veteran had experienced increased ruminations regarding that accident after his retirement from employment, which increased his depressive symptoms, and that the incident would have exacerbated any depression present during service. Therefore, a link between the Veteran's current condition and his service has been established through competent medical evidence. The April 2013 examiner concluded that the Veteran's psychiatric condition was not related to service, but rather was the result of the normal aging process and a long life. However, she does not provide any specific rationale for her conclusion. Instead, she merely cites to findings from the February 2012 examination, which actually establishes a link between depression and service. The failure of the physician to provide a basis for her opinion affects the weight or credibility of the evidence. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Therefore, the February 2012 opinion holds greater probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches). The credibility and weight to be attached to these opinions is within the province of the Board. Id. Notably, the September 2009 VA examination diagnosed adjustment disorder with depressive mood, but provided no opinion as to the etiology of the condition. Therefore, this evidence carries little probative value either in support of, or against, the Veteran's claim. The Board finds that the preponderance of the evidence is in favor of service connection for depressive disorder. 38 U.S.C.A. § 5107(b). The appeal is granted. ORDER Service connection for depressive disorder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs