Citation Nr: 1322535 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 05-27 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1973 to February 1977, and from March 1988 to November 1988. He had additional service in the Army Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2005 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a psychiatric disorder (listed as a chronic depressive disorder). In March 2008 and August 2010, the Board, in pertinent part, remanded the issue of entitlement to service connection for a psychiatric disorder, for further development. In February 2012 and January 2013, the Board again remanded the issue of entitlement to service connection for a psychiatric disorder for further development. The issue has been recharacterized to comport with the evidence of record. FINDING OF FACT The Veteran's psychiatric disorder had its onset in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for a psychiatric disorder. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran contends that he has a psychiatric disorder that is related to service. He essentially maintains that he was treated for psychiatric problems during service and that his psychiatric problems have continued since his period of service. He also reports that he had disciplinary problems during service. The Veteran served on active duty in the Army from January 1973 to February 1977, and from March 1988 to November 1988. He had additional service in the Army Reserve. The Veteran's service treatment records for his first period of service from January 1973 to February 1977 indicate that he was treated for insomnia and that, at the time of his November 1976 separation examination, he reported that he had depression or excessive worry, and nervous trouble. A January 1973 objective enlistment examination report included a notation that the Veteran's psychiatric evaluation was normal. An August 1973 treatment entry noted that the Veteran complained of insomnia. He stated that he first noticed sleep problems during advanced individual training and that he was treated with sleeping pills. The examiner reported that the Veteran was worried on two accounts. It was noted that the Veteran stated that he was under pressure to take drugs. The Veteran also reported that his family told him that he spoke to his grandmother in the past when he was under five years old and that he did not remember such conversations. He stated that his grandmother died when he was five years old. The Veteran indicated that his aunts kept telling him that his grandmother confided in him. The examiner reported, as to a plan, that the Veteran would see a psychological social worker at the barracks for counseling and that he would also see a chaplain. A diagnosis was not provided. On a medical history form at the time of the November 1976 separation examination, the Veteran reported that he had depression or excessive worry, as well as nervous trouble. The reviewing examiner indicated that there was no adult sequelae and did not specifically refer to the Veteran's reports of depression, excessive worry, and nervous trouble. The objective November 1976 separation examination report included a notation that the Veteran's psychiatric evaluation was normal. The service treatment records for the Veteran's second period of service from March 1988 to November 1988 are not of record. The Veteran's service personnel records indicate that he had repeated disciplinary problems during service. Post-service private and VA treatment records show that the Veteran was treated for variously diagnosed psychiatric problems, including major depressive disorder and post-traumatic stress disorder (PTSD). A June 1997 VA treatment report related diagnoses of a major depressive disorder, recurrent, severe, and PTSD, chronic, moderate to severe. A May 2004 VA treatment report noted that the Veteran was brought in by the police because he told a female friend he was going to commit suicide. The assessment was PTSD and major depressive disorder, recurrent. An April 2008 VA treatment report noted diagnoses of PTSD related to multiple events in the military, including Vietnam combat, and a major depressive disorder, recurrent, without psychotic features. A May 2008 statement from a VA physician indicated that the Veteran had been treated for major depression and PTSD since May 2004 when he was hospitalized in the psychiatric ward after being brought there by police for treatment due to suicidal thoughts and a suicide attempt. It was noted that the Veteran was diagnosed with PTSD and a major depressive disorder with psychotic features. The physician stated that the Veteran's history of trauma included some combat experiences, mostly in Desert Storm. The physician maintained that the Veteran also reported that he was in Panama and that he was in Vietnam during the end of the war. The physician indicated that the Veteran stated that his first suicide attempt was when he tried to get himself run over by a car in the service and he was brought to a civilian hospital in Virginia by a friend. The physician related that the Veteran had not been able to work due to the severity of his depression and anxiety symptoms and that both were aggravated by serious medical problems including coronary artery disease, a history of a myocardial infarction, chronic back pain (degenerative disc disease), glaucoma, and gastrointestinal reflux disease. The physician stated that all of those medical problems were aggravated by the Veteran's anxiety, depression, and insomnia and that they, in turn, aggravated his psychiatric symptoms. There are several VA psychiatric examination reports that specifically address the etiology of the Veteran's claimed psychiatric disorder. A November 2009 VA psychiatric examination report noted that the Veteran's claims file was not available at the time of the examination, but that his electronic medical records were reviewed. The diagnoses were PTSD, chronic, secondary to extreme childhood trauma; a major depressive disorder, severe, secondary to extreme childhood trauma with possible psychotic symptoms; and a personality disorder, not otherwise specified, with borderline paranoid and antisocial traits. The examiner reported that the Veteran was a very disturbed individual. The examiner stated that the Veteran was difficult to evaluate due to evidence of symptom exaggeration and probable malingering, which were reflected on psychological testing, as well as on a review of the record that revealed inconsistencies in his reported symptoms and even his report of basic historical events. It was noted that the Veteran gave a very implausible account of being a prisoner of war (POW) in Vietnam. The examiner commented that given the Veteran's extreme history of childhood and adolescent trauma, tendency toward exaggeration, and variable reports as to even basic facts, he found it less likely than not that his currently diagnosed depression was related to his military service. The examiner stated that the Veteran described an earlier onset for his emotional and behavior problems and that he showed signs of a severe personality disorder which also related to his childhood. It was noted that the Veteran had claimed psychotic symptoms, but that it was difficult to evaluate those symptoms since he had shown signs of exaggeration. In a May 2010 addendum to the November 2009 VA psychiatric examination report, the examiner indicated that the Veteran's claims file had been reviewed. The examiner stated that he had no changes to make to his previous opinions. The examiner reported that there was an endorsement by the Veteran of depression and excessive worry at his discharge from service in (November) 1976, but no treatment or formal evaluation of any mental health issues. The examiner indicated that there was ample evidence of pre-military trauma, and that the Veteran showed significant signs of exaggeration on tests results, which made his claims of a service-connected mental disorder questionable. It was noted that there was no evidence in the military record to support his claims of being a POW and that his DD Form 214 for his period of service from January 1973 to February 1977 did not refer to any Vietnam service at all. A November 2010 VA psychiatric examination noted that the Veteran's claims file was reviewed. The diagnoses were a major depressive disorder, most likely caused by childhood trauma; PTSD, secondary to childhood trauma, and not caused by or related to military combat trauma; and a personality disorder, not otherwise specified. The examiner indicated that she concurred with the opinions of the examiner pursuant to the November 2009 VA psychiatric examination report, and May 2010 addendum. The examiner stated that the Veteran met the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) criteria for a major depressive disorder, moderate, more likely than not secondary to childhood abuse and various present day situational factors. The examiner reported that the Veteran's major depressive disorder was not caused by or related to his military service. It was noted that there was no information to indicate that his depressive symptoms were aggravated by his military service. The examiner indicated that the Veteran's PTSD was also not caused by his military service and that his PTSD symptoms were more likely caused by or related to childhood trauma and not aggravated by his military service. A March 2012 VA psychiatric examination report included a notation that the Veteran's claims file was reviewed. The diagnosis was PTSD. The examiner reported that the Veteran did not have more than one psychiatric disorder. The examiner commented that the Veteran's PTSD was less likely than not caused by or a result of service. The examiner also indicated that the claimed condition was less likely as not (less than 50 percent probability) incurred in or caused by any claimed in-service injury, event, or illness. The examiner reported that the Veteran denied that he had current depression. The examiner stated that the Veteran's history of discrepancies in reporting his medical and personal history had been discussed in previous reports and would not be elaborated upon in the present examination. The examiner stated that the main issue was where the Veteran's PTSD symptomatology came from. It was noted that the Veteran admitted to running away ten times and ending up in a "boy's home" and that he reported that he had nightmares and flashbacks about his childhood abuse. The examiner reported that the Veteran also reported continuing nightmares and flashbacks about his daughter's death during a period of time when he was not in the service. The examiner maintained that the trauma the Veteran reported in service was insufficient to meet criteria A for PTSD according to DSM-IV. The examiner reported that the Veteran did not mention combat or being a prisoner of war (POW), but that he talked about a sergeant who picked on him during his second enlistment. It was noted that the Veteran stated that he eventually became so angry that he was violent toward the sergeant and spoke to his captain about the situation. The examiner related that the Veteran indicated that he also hit his captain in the head with the butt of an M-16. The examiner remarked that such issues did not qualify as stressors, but that the Veteran's childhood abuse certainly did. The examiner commented that the Veteran's PTSD did not appear to have manifested in service, as he was having nightmares and behavior problems for years about his father when he was a child and an adolescent. The examiner stated that the in-service signs and symptoms of excessive worry or depression, repeated disciplinary problems, were, therefore, not the first signs of any psychiatric disorder. The examiner stated that the Veteran's behavioral problems started before service. The examiner remarked that all of the conclusions came from the Veteran's statements. A May 2013 VA psychiatric examination report includes a notation that the Veteran's claims file was reviewed. The diagnoses were PTSD and a personality disorder, not otherwise specified. The examiner indicated that symptoms that applied to the Veteran's diagnoses included a depressed mood, anxiety, and chronic sleep impairment. The examiner indicated that the Veteran met the DSM-IV criteria for PTSD due to severe childhood abuse and that the Veteran's claimed stressors were not related to fear of hostile military or terrorist activity. The examiner commented that it was less likely as not that the Veteran's PTSD was caused by his military service, but it was at least as likely as not that the symptoms of the Veteran's PTSD were treated during his military service. The examiner stated that although the examination request form indicated that there was no evidence of record of any possible psychiatric problems prior to the Veteran's first period of service from January 1973 to February 1977, prior VA examiners had documented that the Veteran reported symptoms of PTSD and treatment for PTSD prior to enlistment in the service, including behavior problems and enrollment in a boy's home. The examiner maintained that the Veteran's PTSD was at least as likely as not related to the following in-service treatment: Treatment for insomnia in August 1973, with referral for counseling; reports of depression or excessive worry, and nervous trouble, pursuant to a November 1976 medical history form; and the Veteran's repeated disciplinary problems during service as noted in his service personnel records. The examiner stated that the Veteran's symptoms of insomnia, depression, worry, nervous trouble, and poor impulse control were likely manifestations of his currently diagnosed PTSD due to childhood abuse. 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 that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . ." Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The determination of credibility is the province of the Board. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The medical evidence shows that during the Veteran's first period of service from January 1973 to February 1977, he was treated for insomnia, that he was referred for psychological counseling, and that he reported that he had depression or excessive worry, and nervous trouble. The Veteran's service personnel records also indicate that he had repeated disciplinary problems. His service treatment records for his second period of service from March 1988 to November 1988 are not of record. Additionally, post-service treatment records indicate that the Veteran was treated for variously diagnosed psychiatric problems, including a major depressive disorder, anxiety, and PTSD, on numerous occasions after his periods of service. The law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. See 38 U.S.C.A. §§ 1111, 1132 (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). To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). There are VA psychiatric examination reports dated in November 2009, with a May 2010 addendum; November 2010; and March 2012, that essentially provide negative etiological opinions regarding the Veteran's claimed psychiatric disorder. However, there are various problems with each of those examination reports. For example, all of those examination reports indicate that the Veteran's psychiatric problems existed prior to his first period of service from January 1973 to February 1977, despite the fact that there is actually no medical evidence of record indicating that the Veteran was treated for any possible psychiatric problems prior to joining the military. Additionally, the Veteran's January 1973 objective enlistment examination report included a notation that his psychiatric evaluation was normal. Although there are various statements by the Veteran alluding to possible psychiatric problems in childhood, absent clear and unmistakable evidence to the contrary, the Veteran must be presumed sound at the time of entrance into active service. There is no clear and unmistakable evidence of record that any psychiatric disorders existed prior to the Veteran's first period of service. The November 2009 VA psychiatric examination report, with a May 2010 addendum, and the November 2010 VA psychiatric examination report, respectively, both related diagnoses of a major depressive disorder and PTSD that were due to childhood trauma despite the lack of medical evidence of any possible psychiatric problems prior to 1973. Although the examiners refer to the Veteran's inconsistent statements, they apparently rely on his statements to determine that his psychiatric disorders existed prior to service. The examiner also apparently diagnosed the Veteran with PTSD due to his uncorroborated statements of childhood abuse. Additionally, the examiner, pursuant to the March 2012 psychiatric examination report, diagnosed the Veteran with PTSD and indicated that there were no other psychiatric diagnoses. The evidence of record, however, clearly demonstrates that the Veteran has been diagnosed with major depressive disorder on numerous occasions. Additionally, the March 2012 VA examiner referred to the Veteran's report that he had no VA or other mental health treatment until 2004. However, a June 1997 VA treatment report related diagnoses of a major depressive disorder and PTSD. The VA examiner further opined that the Veteran's PTSD did not appear to have first manifested in service, as he was having nightmares and behavior problems for years concerning his father when he was a child or adolescent. The examiner apparently based this conclusion on the Veteran's reported history alone, despite the fact that the examiner had already indicated the Veteran's reported history included numerous discrepancies. Given these circumstances, the Board finds that the opinions provided by the respective examiners pursuant to the November 2009 VA psychiatric examination report, with a May 2010 addendum; November 2010 psychiatric examination report; and the March 2012 psychiatric examination report, to be of no probative value with respect to the etiology of any current psychiatric disorder. The examiner, pursuant to the May 2013 VA psychiatric examination report, related diagnoses of PTSD and a personality disorder, not otherwise specified. The examiner also, indicated, however, that symptoms that applied to the Veteran's diagnoses included a depressed mood and anxiety. The examiner concluded that it was less likely as not that the Veteran's PTSD was caused by his military service, but it was at least as likely as not that the symptoms of the Veteran's PTSD were treated during his military service. The examiner maintained that the Veteran's PTSD was at least as likely as not related to the in-service treatment for insomnia in August 1973, with referral for counseling; reports of depression or excessive worry, and nervous trouble, pursuant to a November 1976 medical history form; and the Veteran's repeated disciplinary problems during service as noted in his service personnel records. Although, the VA examiner related the Veteran's psychiatric disorder, which was diagnosed as PTSD with symptoms of depression and anxiety, to alleged severe childhood abuse, the examiner also found that such disorder was caused by the Veteran's military service. While confusing at best, it is inescapable that the examiner essentially related a variously diagnosed psychiatric disorder, at least in part, to the Veteran's military service. See Wensch v. Principi, 15 Vet. App. 362 (2001). The Veteran is competent to report psychiatric symptoms in service, continuous psychiatric symptomatology since service, and current symptoms that form the basis for diagnosis of a disability, and the Board finds that the Veteran's account of in-service occurrence and continuity of symptoms to be credible and uncontested. See Jandreau v. Nicholson, 492 F.3d 1372 (2007) (holding that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). The Veteran specifically reported psychiatric problems in service and he has current psychiatric diagnoses, to specifically include a major depressive disorder. The Board pointedly rejects the Veteran's claims of participation in combat in Vietnam, the Gulf War and, inferentially, Panama; he did not so participate. Those claims are totally unsupported by and, in fact, contradicted by official government records. However, those claims are not relevant to the Board's decision. The Board must, as a matter of law, resolve all doubt in the Veteran's favor. Accordingly, the Board finds that the Veteran was sound upon entrance into his first period of active duty in 1973; there is evidence of in-service psychiatric manifestations between 1973 and 1977; there is evidence of a current psychiatric disorder; and the current psychiatric disorder is related to his first period of active duty. Service connection is warranted. ORDER Service connection for a psychiatric disorder is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs