Citation Nr: 1326847 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-23 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: New Hampshire Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from August 2001 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for neurological/mental condition involving rapid cycling bipolar disorder, psychotic disorder, paranoia, benzodiazepine dependency and suicidal dependency has been recharacterized on the front page of this decision as the broadly stated service connection for a psychiatric disability. Further, the Board notes, as discussed below, that service connection for a personality disorder and an adjustment disorder, originally claimed as depression and a mental condition, was denied in a final February 2003 rating decision. However, since then additional service treatment records have been added to the record. The provisions of 38 C.F.R. § 3.156(c) provides that if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Thus, the Board will reconsider the claim on a de novo basis. FINDING OF FACT The Veteran's currently diagnosed psychiatric disability was incurred in service. CONCLUSION OF LAW A psychiatric disability, currently diagnosed as mood disorder not otherwise specified (NOS), anxiety disorder NOS, and hypochondriasis, was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304. 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Personality disorders and mental deficiency are not considered diseases or injuries for VA compensation purposes and, therefore, except as provided in 38 C.F.R. § 3.310(a), disability resulting from it cannot be service connected as a matter of express VA regulation. However, disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. See, too, Quirin v. Shinseki, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996); and VAOPGCPREC 82-90 (July 18, 1990). A psychosis will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that 38 C.F.R. § 3.303(b) provides that with chronic diseases shows as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service is required to support the claim. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and the Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the regulation creating a presumption of service connection for "chronic diseases" manifesting during service and then again at any later date (38 C.F.R. § 3.303(b)), is only available to establish service connection for the "chronic diseases" enumerated in 38 C.F.R. § 3.309(a) (listing named chronic diseases). Walker v. Shinseki, 708 F.3d 1331, 1336-37 (Fed. Cir. 2013). In the same case, the Federal Circuit clarified that the continuity of symptomatology language in § 3.303(b) also "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Id. at 1335. With respect to the current appeal, this list includes psychoses. See 38 C.F.R. § 3.309(a). Walker held that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases."). The Federal Circuit noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b). Walker, supra. Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period." Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation"). Significantly, the Federal Circuit indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above. The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection or service connection via continuity of symptomatology. A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). When, for example, 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. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). The Veteran is competent to report the Veteran can observe and feel through the senses. See Layno. 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). Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno (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")). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. The service records reflect that on entrance, the Veteran was noted to be psychiatrically normal as the evaluation findings were normal. In other words, he is presumed to be in sound condition on induction. In January 2002, the Veteran was admitted to the emergency room for treatment after suffering an anxiety attack. The clinical notes indicated that the Veteran's father had recently committed suicide. A follow-up evaluation indicated that the Veteran reported that he continued to feel as if he could not breathe and was pending separation for depression. The diagnosis was anxiety. In May 2002, the Veteran was hospitalized for three days. It was noted that this was the Veteran's first psychiatric hospitalization for self-mutilation and thoughts of self-harm in the context of the military, financial, and family stressors. The Veteran reported that he superficially had cut his arm with a metal edged ruler after feeling frustrated, angry, and stressed out after being denied access to the Battalion Aid Station by a sergeant in his chain of command. The cutting was reportedly performed to "relieve stress." He denied an intention to kill himself, but indicated that he had burned himself with cigarettes. Again, military stressors were cited. He reported a past and recent history, although no specific time frames were provided, of impulsivity, poor judgment, and poor insight. The Veteran was treated as an inpatient and mental status examination was performed. The Axis I diagnosis was adjustment disorder with mixed disturbance of emotions and conduct, rule out anxiety disorder NOS with panic episodes; personality disorder NOS with antisocial and borderline personality features. The Veteran was recommended for separation due to unsuitability. He was discharged thereafter. The service personnel papers noted that the Veteran had an adjustment disorder which rendered him ineffective for continued military service. Post-service, the Veteran was examined by VA in January 2003. The resulting diagnoses were Axis I of adjustment disorder with mixed disturbances of emotions and conduct; Axis II diagnosis of personality disorder NOS with narcisstic and borderline personality features. The examiner noted that the Veteran had difficulty with basic training in the military. The Veteran was subsequently diagnosed over the next several years with a variety of psychiatric disorders including bipolar disorder, a panic disorder, and major depressive disorder. In June 2010, the Veteran was examined by VA for the purpose of reconciling these diagnoses. The examiner reviewed the history and examined the Veteran, concluding that he had an Axis I diagnosis of mood disorder NOS, anxiety disorder NOS, hypochondriasis, and Benzodiazepine withdrawal; and an Axis II diagnosis of personality disorder NOS. The examiner opined that the major diagnosis was the Axis II diagnosis which the examiner attributed to childhood difficulty. At the outset, the Board notes that the Veteran entered service in sound condition and was first diagnosed as having psychiatric disorders (variously diagnosed) in service. (There is no clear and unmistakable evidence to rebut the presumption of soundness.) After his discharge, he continued to experience psychiatric problems, and he has current diagnoses of psychiatric disability. The RO denied the Veteran's claim of service connection for a psychiatric disability on the basis that personality disorders and mental deficiency are not considered diseases or injuries for VA compensation purposes. However, the Veteran had separate inservice diagnoses of an adjustment disorder as well as anxiety and depression. This is no evidence that any other inservice diagnosis was due to superimposed injury on the personality disorder, although that is also a basis for which service connection may be granted. Rather, as noted, there were separate diagnoses which followed a history of the suicide of the Veteran's father and subsequent panic attacks/anxiety attacks and self-mutilation. In addition, the Veteran carried the same diagnosis of an adjustment disorder on the initial post-service VA examination in addition to his diagnosis of a personality disorder. The June 2010 VA examiner noted that the Veteran was originally diagnosed with an adjustment disorder, but the diagnosis was recharacterized over the years, citing to the various diagnoses. The examiner basically addressed the continuous nature of the Veteran's personality disorder, but did not fully address the evolving nature of the other diagnoses. However, in affording the Veteran the benefit of the doubt, the Board finds that the service records are reflective of inservice diagnoses of adjustment disorder and anxiety disorder, as manifested by panic attacks/anxiety attacks. Post-service, the Veteran has manifested essentially constant psychiatric impairment which has been variously diagnosed, from the post-service examination onward, and he still has panic attacks and anxiety as well as depression due to his psychiatric disability. These various diagnoses (including chronic adjustment disorder) are diseases recognized by VA's rating schedule. See 38 C.F.R. § 4.130. The VA examiner basically indicated that there had been changing diagnoses and the Board is satisfied that while the exact nature of the diagnoses have evolved, psychiatric disability has been present since service when the initial diagnoses (other than personality disorder) were made. Further, the Veteran has manifested consistent symptoms, such as panic and anxiety attacks, as established by both medical records and lay evidence of friends and family. Accordingly, since the Veteran's psychiatric disability was incurred in service, service connection is warranted for currently diagnosed mood disorder NOS, anxiety disorder NOS, and hypochondriasis. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ORDER Service connection for psychiatric disability, characterized as mood disorder NOS, anxiety disorder NOS, and hypochondriasis is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs